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434 U.S. 106
98 S.Ct. 330
54 L.Ed.2d 331
Commonwealth of PENNSYLVANIAv.Harry MIMMS.
No. 76-1830.
Dec. 5, 1977.
PER CURIAM.
1
Petitioner Commonwealth seeks review of a judgment of the Supreme Court of Pennsylvania reversing respondent's conviction for carrying a concealed deadly weapon and a firearm without a license. That court reversed the conviction because it held that respondent's "revolver was seized in a manner which violated the Fourth Amendment to the Constitution of the United States." 471 Pa. 546, 548, 370 A.2d 1157, 1158 (1977). Because we disagree with this conclusion, we grant the Commonwealth's petition for certiorari and reverse the judgment of the Supreme Court of Pennsylvania.
2
The facts are not in dispute. While on routine patrol, two Philadelphia police officers observed respondent Harry Mimms driving an automobile with an expired license plate. The officers stopped the vehicle for the purpose of issuing a traffic summons. One of the officers approached and asked respondent to step out of the car and produce his owner's card and operator's license. Respondent alighted, whereupon the officer noticed a large bulge under respondent's sports jacket. Fearing that the bulge might be a weapon, the officer frisked respondent and discovered in his waistband a .38-caliber revolver loaded with five rounds of ammunition. The other occupant of the car was carrying a .32-caliber revolver. Respondent was immediately arrested and subsequently indicted for carrying a concealed deadly weapon and for unlawfully carrying a firearm without a license. His motion to suppress the revolver was denied; and, after a trial at which the revolver was introduced into evidence, respondent was convicted on both counts.
3
As previously indicated, the Supreme Court of Pennsylvania reversed respondent's conviction, however, holding that the revolver should have been suppressed because it was seized contrary to the guarantees contained in the Fourth and Fourteenth Amendments to the United States Constitution.1 The Pennsylvania court did not doubt that the officers acted reasonably in stopping the car. It was also willing to assume, arguendo, that the limited search for weapons was proper once the officer observed the bulge under respondent's coat. But the court nonetheless thought the search constitutionally infirm because the officer's order to respondent to get out of the car was an impermissible "seizure." This was so because the officer could not point to "objective observable facts to support a suspicion that criminal activity was afoot or that the occupants of the vehicle posed a threat to police safety."2 Since this unconstitutional intrusion led directly to observance of the bulge and to the subsequent "pat down," the revolver was the fruit of an unconstitutional search, and, in the view of the Supreme Court of Pennsylvania, should have been suppressed.
4
We do not agree with this conclusion.3 The touchstone of our analysis under the Fourth Amendment is always "the reasonableness in all the circumstances of the particular governmental invasion of a citizen's personal security." Terry v. Ohio, 392 U.S. 1, 19, 88 S.Ct. 1868, 1878, 20 L.Ed.2d 889 (1968). Reasonableness, of course, depends "on a balance between the public interest and the individual's right to personal security free from arbitrary interference by law officers." United States v. Brignoni-Ponce, 422 U.S. 873, 878, 95 S.Ct. 2574, 45 L.Ed.2d 607 (1975).
5
In this case, unlike Terry v. Ohio, there is no question about the propriety of the initial restrictions on respondent's freedom of movement. Respondent was driving an automobile with expired license tags in violation of the Pennsylvania Motor Vehicle Code.4 Deferring for a moment the legality of the "frisk" once the bulge had been observed, we need presently deal only with the narrow question of whether the order to get out of the car, issued after the driver was lawfully detained, was reasonable and thus permissible under the Fourth Amendment. This inquiry must therefore focus not on the intrusion resulting from the request to stop the vehicle or from the later "pat down," but on the incremental intrusion resulting from the request to get out of the car once the vehicle was lawfully stopped.
6
Placing the question in this narrowed frame, we look first to that side of the balance which bears the officer's interest in taking the action that he did. The State freely concedes the officer had no reason to suspect foul play from the particular driver at the time of the stop, there having been nothing unusual or suspicious about his behavior. It was apparently his practice to order all drivers out of their vehicles as a matter of course whenever they had been stopped for a traffic violation. The State argues that this practice was adopted as a precautionary measure to afford a degree of protection to the officer and that it may be justified on that ground. Establishing a face-to-face confrontation diminishes the possibility, otherwise substantial, that the driver can make unobserved movements; this, in turn, reduces the likelihood that the officer will be the victim of an assault.5
7
We think it too plain for argument that the State's proffered justification—the safety of the officer—is both legitimate and weighty. "Certainly it would be unreasonable to require that police officers take unnecessary risks in the performance of their duties." Terry v. Ohio, supra, 392 U.S. at 23, 88 S.Ct. at 1881. And we have specifically recognized the inordinate risk confronting an officer as he approaches a person seated in an automobile. "According to one study, approximately 30% of police shootings occurred when a police officer approached a suspect seated in an automobile. Bristow, Police Officer Shootings—A Tactical Evaluation, 54 J.Crim.L.C. & P.S. 93 (1963)." Adams v. Williams, 407 U.S. 143, 148 n. 3, 92 S.Ct. 1921, 1924, 32 L.Ed.2d 612 (1972). We are aware that not all these assaults occur when issuing traffic summons, but we have before expressly declined to accept the argument that traffic violations necessarily involve less danger to officers than other types of confrontations. United States v. Robinson, 414 U.S. 218, 234, 94 S.Ct. 467, 38 L.Ed.2d 427 (1973). Indeed, it appears "that a significant percentage of murders of police officers occurs when the officers are making traffic stops." Id., at 234, n. 5, 94 S.Ct. at 476.
8
The hazard of accidental injury from passing traffic to an officer standing on the driver's side of the vehicle may also be appreciable in some situations. Rather than conversing while standing exposed to moving traffic, the officer prudently may prefer to ask the driver of the vehicle to step out of the car and off onto the shoulder of the road where the inquiry may be pursued with greater safety to both.
9
Against this important interest we are asked to weigh the intrusion into the driver's personal liberty occasioned not by the initial stop of the vehicle, which was admittedly justified, but by the order to get out of the car. We think this additional intrusion can only be described as de minimis. The driver is being asked to expose to view very little more of his person than is already exposed. The police have already lawfully decided that the driver shall be briefly detained; the only question is whether he shall spend that period sitting in the driver's seat of his car or standing alongside it. Not only is the insistence of the police on the latter choice not a "serious intrusion upon the sanctity of the person," but it hardly rises to the level of a " 'petty indignity.' " Terry v. Ohio, supra, 392 U.S. at 17, 88 S.Ct. at 1877. What is at most a mere inconvenience cannot prevail when balanced against legitimate concerns for the officer's safety.6
10
There remains the second question of the propriety of the search once the bulge in the jacket was observed. We have as little doubt on this point as on the first; the answer is controlled by Terry v. Ohio, supra. In that case we thought the officer justified in conducting a limited search for weapons once he had reasonable concluded that the person whom he had legitimately stopped might be armed and presently dangerous. Under the standard enunciated in that case—whether "the facts available to the officer at the moment of the seizure or the search 'warrant a man of reasonable caution in the belief' that the action taken was appropriate"7—there is little question the officer was justified. The bulge in the jacket permitted the officer to conclude that Mimms was armed and thus posed a serious and present danger to the safety of the officer. In these circumstances, any man of "reasonable caution" would likely have conducted the "pat down."
11
Respondent's motion to proceed in forma pauperis is granted. The petition for writ of certiorari is granted, the judgment of the Supreme Court of Pennsylvania is reversed, and the case is remanded for further proceedings not inconsistent with this opinion.
12
It is so ordered.
13
Mr. Justice MARSHALL, dissenting.
14
I join my Brother STEVENS' dissenting opinion, but I write separately to emphasize the extent to which the Court today departs from the teachings of Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968).
15
In Terry the policeman who detained and "frisked" the petitioner had for 30 years been patrolling the area in downtown Cleveland where the incident occurred. His experience led him to watch petitioner and a companion carefully, for a long period of time, as they individually and repeatedly looked into a store window and then conferred together. Suspecting that the two men might be "casing" the store for a "stick-up" and that they might have guns, the officer followed them as they walked away and joined a third man with whom they had earlier conferred. At this point the officer approached the men and asked for their names. When they "mumbled something" in response, the officer grabbed petitioner, spun him around to face the other two, and "patted down" his clothing. This frisk led to discovery of a pistol and to petitioner's subsequent weapons conviction. Id., at 5-7, 88 S.Ct., at 1871-1872.
16
The "stop and frisk" in Terry was thus justified by the probability, not only that a crime was about to be committed, but also that the crime "would be likely to involve the use of weapons." Id., at 28, 88 S.Ct., at 1883. The Court confined its holding to situations in which the officer believes that "the persons with whom he is dealing may be armed and presently dangerous" and "fear[s] for his own or others' safety." Id., at 30, 88 S.Ct., at 1884. Such a situation was held to be present in Adams v. Williams, 407 U.S. 143, 92 S.Ct. 1921, 32 L.Ed.2d 612 (1972), which involved a person who "was reported to be carrying . . . a concealed weapon." Id., at 147, 92 S.Ct., at 1924; see id., at 146, 148, 92 S.Ct., at 1923, 1924.
17
In the instant case, the officer did not have even the slightest hint, prior to ordering respondent out of the car, that respondent might have a gun. As the Court notes, ante, at 109, "the officer had no reason to suspect foul play." The car was stopped for the most routine of police procedures, the issuance of a summons for an expired license plate. Yet the Court holds that, once the officer had made this routine stop, he was justified in imposing the additional intrusion of ordering respondent out of the car, regardless of whether there was any individualized reason to fear respondent.
18
Such a result cannot be explained by Terry, which limited the nature of the intrusion by reference to the reason for the stop. The Court held that "the officer's action [must be] reasonably related in scope to the circumstances which justified the interference in the first place." 392 U.S., at 20, 88 S.Ct., at 1879.1 In Terry there was an obvious connection, emphasized by the Court, id., at 28-30, 88 S.Ct., at 1883-1884, between the officer's suspicion that an armed robbery was being planned and his frisk for weapons. In the instant case "the circumstance . . . which justified the interference in the first place" was an expired license plate. There is simply no relation at all between that circumstance and the order to step out of the car.
19
The institutional aspects of the Court's decision trouble me as much as does the Court's substantive result. The Court extends Terry's expressly narrow holding, see id., at 30, 88 S.Ct., at 1884, solely on the basis of certiorari papers, and in the process summarily reverses the considered judgment of Pennsylvania's highest court. Such a disposition cannot engender respect for the work of this Court.2 That we are deciding such an important issue by "reach[ing] out" in a case that "barely escapes mootness," as noted by Mr. Justice STEVENS, post, at 117, 116 n. 4, and that may well be resolved against the State on remand in any event,3 simply reinforces my view that the Court does institutional as well as doctrinal damage by the course it pursues today. I dissent.
20
Mr. Justice STEVENS, with whom Mr. Justice BRENNAN and Mr. Justice MARSHALL join, dissenting.
21
Almost 10 years ago in Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889, the Court held that "probable cause" was not required to justify every seizure of the person by a police officer. That case was decided after six months of deliberation following full argument and unusually elaborate briefing.1 The approval in Terry of a lesser standard for certain limited situations represented a major development in Fourth Amendment jurisprudence.
22
Today, without argument, the Court adopts still another— and even lesser—standard of justification for a major category of police seizures.2 More importantly, it appears to abandon "the central teaching of this Court's Fourth Amendment jurisprudence"3 which has ordinarily required individualized inquiry into the particular facts justifying every police intrusion—in favor of a general rule covering countless situations. But what is most disturbing is the fact that this important innovation is announced almost casually, in the course of explaining the summary reversal of a decision the Court should not even bother to review.
23
Since Mimms has already served his sentence, the importance of reinstating his conviction is minimal at best.4 Even if the Pennsylvania Supreme Court has afforded him greater protection than is required by the Federal Constitution, the conviction may be invalid under state law.5 Moreover, the Pennsylvania Supreme Court may still construe its own constitution to prohibit what it described as the "indiscriminate procedure" of ordering all traffic offenders out of their vehicles. 471 Pa. 546, 553, 370 A.2d 1157, 1161.6 In all events, whatever error the state court has committed affects only the Commonwealth of Pennsylvania. Its decision creates no conflict requiring resolution by this Court on a national level. In most cases, these considerations would cause us to deny certiorari.
24
No doubt it is a legitimate concern about the safety of police officers throughout the Nation that prompts the Court to give this case such expeditious treatment. I share that concern and am acutely aware that almost every decision of this Court holding that an individual's Fourth Amendment rights have been invaded makes law enforcement somewhat more difficult and hazardous. That, however, is not a sufficient reason for this Court to reach out to decide every new Fourth Amendment issue as promptly as possible. In this area of constitutional adjudication, as in all others, it is of paramount importance that the Court have the benefit of differing judicial evaluations of an issue before it is finally resolved on a nationwide basis.
25
This case illustrates two ways in which haste can introduce a new element of confusion into an already complex set of rules. First, the Court has based its legal ruling on a factual assumption about police safety that is dubious at best; second, the Court has created an entirely new legal standard of justification for intrusions on the liberty of the citizen.
26
Without any attempt to differentiate among the multitude of varying situations in which an officer may approach a person seated in an automobile, the Court characterizes the officer's risk as "inordinate" on the basis of this statement:
27
" 'According to one study, approximately 30% of police shootings occurred when a police officer approached a suspect seated in an automobile. Bristow, Police Officer Shootings—A Tactical Evaluation, 54 J.Crim.L.C. & P.S. 93 (1963).' Adams v. Williams, 407 U.S. 143, 148 n. 3, 92 S.Ct. 1921, 1924, 32 L.Ed.2d 612 (1972)." Ante, at 110.
28
That statement does not fairly characterize the study to which it refers. Moreover, the study does not indicate that police officers can minimize the risk of being shot by ordering drivers stopped for routine traffic violations out of their cars. The study reviewed 110 selected police shootings that occurred in 1959, 1960, and 1961.7 In 35 of those cases, "officers were attempting to investigate, control, or pursue suspects who were in automobiles."8 Within the group of 35 cases, there were examples of officers who "were shot through the windshield or car body while their vehicle was moving"; examples in which "the officer was shot while dismounting from his vehicle or while approaching the suspect[']s vehicle"; and, apparently, instances in which the officer was shot by a passenger in the vehicle. Bristow, supra, n. 7, at 93.
29
In only 28 of the 35 cases was the location of the suspect who shot the officer verified. In 12 of those cases the suspect was seated behind the wheel of the car, but that figure seems to include cases in which the shooting occurred before the officer had an opportunity to order the suspect to get out. In nine cases the suspect was outside the car talking to the officer when the shooting occurred.
30
These figures tell us very little about the risk associated with the routine traffic stop;9 and they lend no support to the Court's assumption that ordering the routine traffic offender out of his car significantly enhances the officer's safety. Arguably, such an order could actually aggravate the officer's danger because the fear of a search might cause a serious offender to take desperate action that would be unnecessary if he remained in the vehicle while being ticketed. Whatever the reason, it is significant that some experts in this area of human behavior strongly recommend that the police officer "never allow the violator to get out of the car . . . ."10
31
Obviously, it is not my purpose to express an opinion on the safest procedure to be followed in making traffic arrests or to imply that the arresting officer faces no significant hazard, even in the apparently routine situation. I do submit, however, that no matter how hard we try we cannot totally eliminate the danger associated with law enforcement, and that, before adopting a nationwide rule, we should give further consideration to the infinite variety of situations in which today's holding may be applied.
32
The Court cannot seriously believe that the risk to the arresting officer is so universal that his safety is always a reasonable justification for ordering a driver out of his car. The commuter on his way home to dinner, the parent driving children to school, the tourist circling the Capitol, or the family on a Sunday afternoon outing hardly pose the same threat as a driver curbed after a high-speed chase through a high-crime area late at night. Nor is it universally true that the driver's interest in remaining in the car is negligible. A woman stopped at night may fear for her own safety; a person in poor health may object to standing in the cold or rain; another who left home in haste to drive children or spouse to school or to the train may not be fully dressed; an elderly driver who presents no possible threat of violence may regard the police command as nothing more than an arrogant and unnecessary display of authority. Whether viewed from the standpoint of the officer's interest in his own safety, or of the citizen's interest in not being required to obey an arbitrary command, it is perfectly obvious that the millions of traffic stops that occur every year are not fungible.
33
Until today the law applicable to seizures of a person has required individualized inquiry into the reason for each intrusion, or some comparable guarantee against arbitrary harassment.11 A factual demonstration of probable cause is required to justify an arrest; an articulable reason to suspect criminal activity and possible violence is needed to justify a stop and frisk. But to eliminate any requirement that an officer be able to explain the reasons for his actions signals an abandonment of effective judicial supervision of this kind of seizure and leaves police discretion utterly without limits. Some citizens will be subjected to this minor indignity while others—perhaps those with more expensive cars, or different bumper stickers, or different-colored skin—may escape it entirely.
34
The Court holds today that "third-class" seizures may be imposed without reason; how large this class of seizures may be or become we cannot yet know. Most narrowly, the Court has simply held that whenever an officer has an occasion to speak with the driver of a vehicle, he may also order the driver out of the car. Because the balance of convenience and danger is no different for passengers in stopped cars, the Court's logic necessarily encompasses the passenger. This is true even though the passenger has committed no traffic offense. If the rule were limited to situations in which individualized inquiry identified a basis for concern in particular cases, then the character of the violation might justify different treatment of the driver and the passenger. But when the justification rests on nothing more than an assumption about the danger associated with every stop—no matter how trivial the offense—the new rule must apply to the passenger as well as to the driver.
35
If this new rule is truly predicated on a safety rationale rather than a desire to permit pretextual searches—it should also justify a frisk for weapons, or at least an order directing the driver to lean on the hood of the car with legs and arms spread out. For unless such precautionary measures are also taken, the added safety—if any—in having the driver out of the car is of no value when a truly dangerous offender happens to be caught.12
36
I am not yet persuaded that the interest in police safety requires the adoption of a standard any more lenient than that permitted by Terry v. Ohio.13 In this case the offense might well have gone undetected if respondent had not been ordered out of his car, but there is no reason to assume that he otherwise would have shot the officer. Indeed, there has been no showing of which I am aware that the Terry standard will not provide the police with a sufficient basis to take appropriate protective measures whenever there is any real basis for concern. When that concern does exist, they should be able to frisk a violator, but I question the need to eliminate the requirement of an articulable justification in each case and to authorize the indiscriminate invasion of the liberty of every citizen stopped for a traffic violation, no matter how petty.
37
Even if the Pennsylvania Supreme Court committed error, that is not a sufficient justification for the exercise of this Court's discretionary power to grant review, or for the summary disposition of a novel constitutional question. For this kind of disposition gives rise to an unacceptable risk of error and creates "the unfortunate impression that the Court is more interested in upholding the power of the State than in vindicating individual rights." Idaho Dept. of Employment v. Smith, 434 U.S. 100, 105, 98 S.Ct. 327, 330, 54 L.Ed.2d 324 (Stevens, J., dissenting).
38
I respectfully dissent from the grant of certiorari and from the decision on the merits without full argument and briefing.
1
Three judges dissented on the federal constitutional issue.
2
471 Pa., at 552, 370 A.2d, at 1160.
3
We note that in his brief in opposition to a grant of certiorari respondent contends that this case is moot because he has already completed the 3-year maximum of the 11/2- to 3-year sentence imposed. The case has, he argues, terminated against him for all purposes and for all time regardless of this Court's disposition of the matter. See St. Pierre v. United States, 319 U.S. 41, 63 S.Ct. 910, 87 L.Ed. 1199 (1943).
But cases such as Sibron v. New York, 392 U.S. 40, 53-57, 88 S.Ct. 1889, 1897-1900, 20 L.Ed.2d 917 (1968); Street v. New York, 394 U.S. 576, 89 S.Ct. 1354, 22 L.Ed.2d 572 (1969); Carafas v. LaVallee, 391 U.S. 234, 88 S.Ct. 1556, 20 L.Ed.2d 554 (1968); and Ginsberg v. New York, 390 U.S. 629, 88 S.Ct. 1274, 20 L.Ed.2d 195 (1968), bear witness to the fact that this Court has long since departed from the rule announced in St. Pierre, supra. These more recent cases have held that the possibility of a criminal defendant's suffering "collateral legal consequences" from a sentence already served permits him to have his claims reviewed here on the merits. If the prospect of the State's visiting such collateral consequences on a criminal defendant who has served his sentence is a sufficient burden as to enable him to seek reversal of a decision affirming his conviction, the prospect of the State's inability to impose such a burden following a reversal of the conviction of a criminal defendant in its own courts must likewise be sufficient to enable the State to obtain review of its claims on the merits here. In any future state criminal proceedings against respondent, this conviction may be relevant to setting bail and length of sentence, and to the availability of probation. 18 Pa.Cons.Stat.Ann. §§ 1321, 1322, 1331, 1332 (Purdon Supp. 1977); Pa.Rule Crim.Proc. 4004. In view of the fact that respondent, having fully served his state sentence, is presently incarcerated in the federal penitentiary at Lewisburg, Pa., we cannot say that such considerations are unduly speculative even if a determination of mootness depended on a case-by-case analysis.
4
Operating an improperly licensed motor vehicle was at the time of the incident covered by 1959 Pa.Laws, No. 32, which was found in Pa.Stat.Ann., Tit. 75, § 511(a) (Purdon 1971), and has been repealed by 1976 Pa.Laws, No. 81, § 7, effective July 1, 1977. This offense now appears to be covered by 75 Pa.Cons.Stat.Ann. §§ 1301, 1302 (Purdon 1977).
5
The State does not, and need not, go so far as to suggest that an officer may frisk the occupants of any car stopped for a traffic violation. Rather, it only argues that it is permissible to order the driver out of the car. In this particular case, argues the State, once the driver alighted, the officer had independent reason to suspect criminal activity and present danger and it was upon this basis, and not the mere fact that respondent had committed a traffic violation, that he conducted the search.
6
Contrary to the suggestion in the dissent of our Brother STEVENS, post, at 122, we do not hold today that "whenever an officer has an occasion to speak with the driver of a vehicle, he may also order the driver out of the car." We hold only that once a motor vehicle has been lawfully detained for a traffic violation, the police officers may order the driver to get out of the vehicle without violating the Fourth Amendment's proscription of unreasonable searches and seizures.
7
392 U.S., at 21-22, 88 S.Ct., at 1880.
1
See also 392 U.S., at 19, 88 S.Ct., at 1878 ("[t]he scope of the search must be 'strictly tied to and justified by' the circumstances which rendered its initiation permissible"); id., at 29-30, 88 S.Ct., at 1884-1885.
2
Professor Ernest Brown wrote nearly 20 years ago:
"[S]ummary reversal on certiorari papers appears in many cases to raise serious question whether there has not been decision without that hearing usually thought due from judicial tribunals. . . . [T]here [is] the question whether the Court does not pay a disproportionate price in public regard when it defeats counsel's reasonable expectation of a hearing, based upon the Court's own rules. If the Court exercises its certiorari jurisdiction to deal with problems of national legal significance, it hardly needs demonstration that such matters warrant hearing on the merits." The Supreme Court 1957 Term—Foreword: Process of Law, 72 Harv.L.Rev. 77, 80, 82 (1958).
See also R. Stern & E. Gressman, Supreme Court Practice § 5.12 (4th ed. 1969). Mr. Justice BRENNAN has singled out cases from the state courts as ones where we should be particularly reluctant to reverse summarily. State Court Decisions and the Supreme Court, 31 Pa.Bar Assn.Q. 393, 403 (1960).
3
On remand the Pennsylvania Supreme Court will have open to it the option of reaching the same result that it originally reached, but doing so under its state counterpart of the Fourth Amendment, Pa.Const., Art. 1, § 8, rather than under the Federal Constitution. A disposition on such an independent and adequate state ground is not, and could not be, in any way foreclosed by this Court's decision today, nor could this Court review a decision of this nature. See generally Brennan, State Constitutions and the Protection of Individual Rights, 90 Harv.L.Rev. 489 (1977); Project Report: Toward an Activist Role for State Bills of Rights, 8 Harv.Civ.Rights—Civ.Lib.L.Rev. 271 (1973).
In addition, respondent's conviction may be reversed on a ground entirely unrelated to the search at issue here. At trial the prosecutor questioned a defense witness about respondent's religious affiliation, a matter not raised on direct examination of the witness. Two concurring justices of the Pennsylvania Supreme Court contended that this questioning provided an independent reason for reversing respondent's conviction under Pennsylvania law. 471 Pa. 546, 556-557, 370 A.2d 1157, 1162-1163 (1977) (Nix, J., joined by O'Brien, J., concurring).
1
Briefs of amici curiae, urging reversal, were filed by Jack Greenberg, James M. Nabrit III, Michael Meltsner, Melvyn Zarr, and Anthony G. Amsterdam for the NAACP Legal Defense and Educational Fund, Inc., and by Bernard A. Berkman, Melvin L. Wulf, and Alan H. Levine for the American Civil Liberties Union et al.
Briefs of amici curiae, urging affirmance, were filed by Solicitor General Griswold, Assistant Attorney General Vinson, Ralph S. Spritzer, Beatrice Rosenberg, and Mervyn Hamburg for the United States; by Louis J. Lefkowitz, pro se, Samuel A. Hirshowitz, First Assistant Attorney General, and Maria L. Marcus and Brenda Soloff, Assistant Attorneys General, for the Attorney General of New York; by Charles Moylan, Jr., Evelle J. Younger, and Harry Wood for the National District Attorneys' Assn.; and by James R. Thompson for Americans for Effective Law Enforcement. See 392 U.S., at 4, 88 S.Ct., at 1871.
2
The Court does not dispute, nor do I, that ordering Mimms out of his car was a seizure. A seizure occurs whenever an "officer, by means of physical force or show of authority, . . . in some way restrain[s] the liberty of a citizen . . . ." Id., at 19 n. 16, 88 S.Ct., at 1879 n. 16. See also Adams v. Williams, 407 U.S. 143, 146, 92 S.Ct. 1921, 1923, 32 L.Ed.2d 612.
3
In Terry, the Court made it clear that the reasonableness of a search is to be determined by an inquiry into the facts of each case:
"[I]n justifying the particular intrusion the police officer must be able to point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion." 392 U.S., at 21, 88 S.Ct., at 1880.
In a footnote, the Court continued:
"This demand for specificity in the information upon which police action is predicated is the central teaching of this Court's Fourth Amendment jurisprudence." Id., at 21 n. 18, 88 S.Ct., at 1880 n. 18 (citing a long list of authorities).
4
For the reasons stated in n. 3 of the Court's opinion, I agree that the case is not moot. Nevertheless, the fact that the case barely escapes mootness supports the conclusion that certiorari should be denied.
5
Two members of the court were persuaded that introducing testimony about Mimms' Muslim religious beliefs was prejudicial error, and three others specifically reserved the issue. 471 Pa. 546, 555 n. 2, and 556-557, 370 A.2d 1157, 1158 n. 2, and 1162-1163.
6
Cf. State v. Opperman, 89 S.D. 25, 228 N.W.2d 152 (1975), rev'd, 428 U.S. 364, 96 S.Ct. 3092, 49 L.Ed.2d 1000, judgment reinstated under state constitution, --- S.D. ---, 247 N.W.2d 673 (1976).
7
As the author pointed out, "[n]o attempt was made to obtain a random selection of these cases, as they were extremely hard to collect." Bristow, Police Officer Shootings—A Tactical Evaluation, 54 J.Crim.L.C. & P.S. 93 (1963).
8
Ibid. Since 35 is 32% of 110, presumably this is the basis for the "30%" figure used in the Court's statement. As the text indicates, however, not all of these cases involved police officers approaching a parked vehicle. Whether any of the incidents involved routine traffic offenses, such as driving with an expired license tag, is not indicated in the study.
9
Over the past 10 years, more than 1,000 police officers have been murdered. FBI, Uniform Crime Reports 289 (1977). Approximately 10% of those killings, or about 11 each year, occurred during "traffic pursuits and stops," but it is not clear how many of those pursuits and stops involved offenses such as reckless or high-speed driving, rather than offenses such as driving on an expired license, or how often the shootings could have been avoided by ordering the driver to dismount.
10
"2. Never allow the violator to get out of the car and stand to its left. If he does get out, which should be avoided, walk him to the rear and right side of the car. Quite obviously this is a much safer area to conduct a conversation." V. Folley, Police Patrol Techniques and Tactics 95 (1973) (emphasis in original).
Another authority is even more explicit:
"The officer should stand slightly to the rear of the front door and doorpost. This will prevent the violator from suddenly opening the door and striking the officer. In order to thoroughly protect himself as much as possible, the officer should reach with his weak hand and push the lock button down if the window is open. This will give an indication to the driver that he is to remain inside the vehicle. It will also force the driver to turn his head to talk with the officer.
"The officer should advise the violator why he was stopped and then explain what action the officer intends to take, whether it is a verbal or written warning, or a written citation. If the suspect attempts to exit his vehicle, the officer should push the door closed, lock it, if possible, and tell the driver to 'please stay in the car!' Then he should request [the] identification he desires and request the violator to hand the material out of the window away from the vehicle. The officer should not stare at the identification but [should] return to his vehicle by backing away from the suspect car. As the patrolman backs away, he should keep his eyes on the occupant(s).
"The officer should remain outside of the patrol unit to use the radio or to write a ticket. The recommended position for him at this time would be to the right side of the patrol unit. Should the driver of the violator vehicle make exit from his seat, the officer should direct the violator to the rear center of his vehicle or the front center area of the patrol unit. Preferably, the officer should verbally attempt to get the violator to re-enter and remain in the vehicle." A. Yount, Vehicle Stops Manual, Misdemeanor and Felony 2-3 (1976).
Conflicting advice is found in an earlier work, G. Payton, Patrol Procedure 298 (4th ed. 1971). It is worth noting that these authorities suggest that any danger to the officer from passing traffic may be greatly reduced by the simple and unintrusive expedient of parking the police car behind, and two or three feet to the left of, the offender's vehicle. Folley, supra, at 93; Payton, supra, at 301; Yount, supra at 2.
11
Government intrusions must be justified with particularity in all but a few narrowly cabined contexts. Inspections pursuant to a general regulatory scheme and stops at border checkpoints are the best known exceptions to the particularity requirement. And even these limited exceptions fit within a broader rule—that the general populace should never be subjected to seizures without some assurance that the intruding officials are acting under a carefully limited grant of discretion. Health and safety inspections may be conducted only if the inspectors obtain warrants, though the warrants may be broader than the ordinary search warrant; officials may not wander at large in the city, conducting inspections without reason. Camara v. Municipal Court, 387 U.S. 523, 87 S.Ct. 1727, 18 L.Ed.2d 930. Similar assurances of regularity and fairness can be found in public, fixed checkpoints:
"[C]heckpoint operations both appear to and actually involve less discretionary enforcement activity [than stops by roving patrols]. The regularized manner in which established checkpoints are operated is visible evidence, reassuring to law-abiding motorists, that the stops are duly authorized and believed to serve the public interest. The location of a fixed checkpoint is not chosen by officers in the field, but by officials responsible for making overall decisions as to the most effective allocation of limited enforcement resources. We may assume that such officials will be unlikely to locate a checkpoint where it bears arbitrarily or oppressively on motorists as a class. And since field officers may stop only those cars passing the checkpoint, there is less room for abusive or harassing stops of individuals than . . . in the case of roving-patrol stops." United States v. Martinez-Fuerte, 428 U.S. 543, 559, 96 S.Ct. 3074, 3083, 49 L.Ed.2d 1116.
There is, of course, a general rule authorizing searches incident to full custodial arrests, but in such cases an individualized determination of probable cause adequately justifies both the search and the seizure. In that situation, unlike this one, the intrusion on the citizen's liberty is "strictly circumscribed by the exigencies which justify its initiation." Terry v. Ohio, 392 U.S. 1, 26, 88 S.Ct. 1868, 1882, 20 L.Ed.2d 889. In this case, there was no custodial arrest, and I assume (perhaps somewhat naively) that the offense which gave rise to the stop of Mimms' car would not have warranted a full custodial arrest without some additional justification. See Gustafson v. Florida, 414 U.S. 260, 266-267, 94 S.Ct. 488, 492-493, 38 L.Ed.2d 456 (Stewart, J., concurring); id., at 238 n. 2, 94 S.Ct., 494 n. 2 (Powell, J., concurring).
12
Terry v. Ohio, supra, at 33, 88 S.Ct., at 1886 (Harlan, J., concurring):
"Just as a full search incident to a lawful arrest requires no additional justification, a limited frisk incident to a lawful stop must often be rapid and routine. There is no reason why an officer, rightfully but forcibly confronting a person suspected of a serious crime, should have to ask one question and take the risk that the answer might be a bullet."
13
I do not foreclose the possibility that full argument would convince me that the Court's analysis of the merits is correct. My limited experience has convinced me that one's initial impression of a novel issue is frequently different from his final evaluation.
| 01
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434 U.S. 158
98 S.Ct. 623
54 L.Ed.2d 375
RICHMOND UNIFIED SCHOOL DISTRICT et al., petitioners,v.Sonja Lynn BERG, Etc
No. 75-1069
Supreme Court of the United States
December 6, 1977
On Writ of Certiorari to the United States Court of Appeals for the Ninth Circuit.
Dec. 6, 1977.
PER CURIAM.
1
The judgment of the Court of Appeals, 528 F.2d 1208, is vacated and the cause remanded for further consideration in light of General Electric Co. v. Gilbert, 429 U.S. 125, 97 S.Ct. 401, 50 L.Ed.2d 343 (1976), and Nashville Gas Co. v. Satty, 434 U.S. 136, 98 S.Ct. 347, 54 L.Ed.2d 356, and for consideration of possible mootness.
| 12
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434 U.S. 136
Nashville Gas Co.v.Satty
No. 76-536.
Argued October 5, 1977
Decided December 6, 1977
Syllabus
Petitioner employer requires a pregnant employee to take leave of absence. While on such leave the employee receives no sick pay, such as is paid for nonoccupational disabilities other than pregnancy. She also loses all accumulated job seniority, such as is retained on leaves for other nonoccupational disabilities, with the result that although petitioner will attempt to provide her with temporary work on her return, she will be employed in a permanent position only if no currently employed employee also applies for the position. In respondent employee's action challenging those policies, the District Court held that they violated Title VII of the Civil Rights Act of 1964, and the Court of Appeals affirmed. Held:
1. Petitioner's policy of denying employees returning from pregnancy leave their accumulated seniority acts both to deprive them "of employment opportunities" and to "adversely affect [their] status as an employee" because of their sex in violation of § 703(a)(2) of Title VII. Pp. 139-143.
(a) While petitioner's seniority policy is facially neutral in that both male and female employees retain accumulated seniority while on leave for nonoccupational disabilities other than pregnancy, whereas seniority is divested if the employee takes a leave for any other reason, including pregnancy, its discriminatory effect causes it to run afoul of § 703(a)(2). Pp. 140-141.
(b) Petitioner has not merely refused to extend to women a benefit that men cannot and do not receive, but has imposed on women a substantial burden that men need not suffer. While Title VII does not require that greater economic benefits be paid to one sex or the other because of their different roles, this does not allow § 703(a)(2) to be read so as to permit an employer to burden female employees in such a way as to deprive them of employment opportunities because of their different roles. General Electric Co. v. Gilbert, 429 U.S. 125, 97 S.Ct. 401, 50 L.Ed.2d 343, distinguished. P. 141-142.
(c) There is no proof of any business necessity justifying the adoption of the seniority policy with respect to pregnancy leave in this case. P. 143.
2. Petitioner's policy of not awarding sick-leave pay to pregnant employees is not a per se violation of Title VII, but the facial neutrality of the policy does not end the analysis if it can be shown that exclusion of pregnancy from the compensation conditions is a mere "pretex[t] designed to effect an invidious discrimination against the members of one sex or the other." Gilbert, supra, at 136, 97 S.Ct. at 408. Hence, absent any showing that the decisions below were based on a finding that there was a pretext, the case will be remanded to determine whether respondent preserved the right to proceed further on such theory. Pp. 143-146.
522 F.2d 850, affirmed in part, vacated in part, and remanded.
Charles K. Wray, Nashville, Tenn., for petitioner.
Robert W. Weismueller, Jr., Nashville, Tenn., for respondent.
Mr. Justice REHNQUIST delivered the opinion of the Court.
1
Petitioner requires pregnant employees to take a formal leave of absence. The employee does not receive sick pay while on pregnancy leave. She also loses all accumulated job seniority; as a result, while petitioner attempts to provide the employee with temporary work upon her return, she will be employed in a permanent job position only if no employee presently working for petitioner also applies for the position. The United States District Court for the Middle District of Tennessee held that these policies violate 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). 384 F.Supp. 765 (1974). The Court of Appeals for the Sixth Circuit affirmed. 522 F.2d 850 (1975). We granted certiorari 429 U.S. 1071, 97 S.Ct. 806, 50 L.Ed.2d 788, to decide, in light of our opinion last Term in General Electric Co. v. Gilbert, 429 U.S. 125, 97 S.Ct. 401, 50 L.Ed.2d 343 (1976), whether the lower courts properly applied Title VII to petitioner's policies respecting pregnancy.
2
Two separate policies are at issue in this case. The first is petitioner's practice of giving sick pay to employees disabled by reason of nonoccupational sickness or injury but not to those disabled by pregnancy. The second is petitioner's practice of denying accumulated seniority to female employees returning to work following disability caused by childbirth.1 We shall discuss them in reversed order.
3
* Petitioner requires an employee who is about to give birth to take a pregnancy leave of indeterminate length. Such an employee does not accumulate seniority while absent, but instead actually loses any job seniority accrued before the leave commenced. Petitioner will not hold the employee's job open for her awaiting her return from pregnancy leave. An employee who wishes to return to work from such leave will be placed in any open position for which she is qualified and for which no individual currently employed is bidding; before such time as a permanent position becomes available, the company attempts to find temporary work for the employee. If and when the employee acquires a permanent position, she regains previously accumulated seniority for purposes of pension, vacation, and the like, but does not regain it for the purpose of bidding on future job openings.
4
Respondent began work for petitioner on March 24, 1969, as a clerk in its Customer Accounting Department. She commenced maternity leave on December 29, 1972, and gave birth to her child on January 23, 1973. Seven weeks later she sought re-employment with petitioner. The position that she had previously held had been eliminated as a result of bona fide cutbacks in her department. Temporary employment was found for her at a lower salary than she had earned prior to taking leave. While holding this temporary employment, respondent unsuccessfully applied for three permanent positions with petitioner. Each position was awarded to another employee who had begun to work for petitioner before respondent had returned from leave; if respondent had been credited with the seniority that she had accumulated prior to leave, she would have been awarded any of the positions for which she applied. After the temporary assignment was completed, respondent requested, "due to lack of work and job openings," that petitioner change her status from maternity leave to termination in order that she could draw unemployment compensation.
5
We conclude that petitioner's policy of denying accumulated seniority to female employees returning from pregnancy leave violates § 703(a)(2) of Title VII, 42 U.S.C. § 2000e-2(a)(2) (1970 ed., Supp. V). That section declares it to be an unlawful employment practice for an employer to
6
"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 . . . sex . . .."
7
On its face, petitioner's seniority policy appears to be neutral in its treatment of male and female employees.2 If an employee is forced to take a leave of absence from his or her job because of disease or any disability other than pregnancy, the employee, whether male or female, retains accumulated seniority and, indeed, continues to accrue seniority while on leave.3 If the employee takes a leave of absence for any other reason, including pregnancy, accumulated seniority is divested. Petitioner's decision not to treat pregnancy as a disease or disability for purposes of seniority retention is not on its face a discriminatory policy. "Pregnancy is, of course, confined to women, but it is in other ways significantly different from the typical covered disease or disability." Gilbert, 429 U.S., at 136, 97 S.Ct., at 408.
8
We have recognized, however, that both intentional discrimination and policies neutral on their face but having a discriminatory effect may run afoul of § 703(a)(2). Griggs v. Duke Power Co., 401 U.S. 424, 431, 91 S.Ct. 849, 854, 28 L.Ed.2d 158 (1971). It is beyond dispute that petitioner's policy of depriving employees returning from pregnancy leave of their accumulated seniority acts both to deprive them "of employment opportunities" and to "adversely affect [their] status as an employee." It is apparent from the previous recitation of the events which occurred following respondent's return from pregnancy leave that petitioner's policy denied her specific employment opportunities that she otherwise would have obtained. Even if she had ultimately been able to regain a permanent position with petitioner, she would have felt the effects of a lower seniority level, with its attendant relegation to less desirable and lower paying jobs, for the remainder of her career with petitioner.
9
In Gilbert, supra, there was no showing that General Electric's policy of compensating for all non-job-related disabilities except pregnancy favored men over women. No evidence was produced to suggest that men received more benefits from General Electric's disability insurance fund than did women; both men and women were subject generally to the disabilities covered and presumably drew similar amounts from the insurance fund. We therefore upheld the plan under Title VII.
10
"As there is no proof that the package is in fact worth more to men than to women, it is impossible to find any gender-based discriminatory effect in this scheme simply because women disabled as a result of pregnancy do not receive benefits; that is to say, gender-based discrimination does not result simply because an employer's disability-benefits plan is less than all-inclusive. For all that appears, pregnancy-related disabilities constitute an additional risk, unique to women, and the failure to compensate them for this risk does not destroy the presumed parity of the benefits, accruing to men and women alike, which results from the facially evenhanded inclusion of risks." 429 U.S., at 138-139, 97 S.Ct., at 409-410 (footnote omitted).
11
Here, by comparison, petitioner has not merely refused to extend to women a benefit that men cannot and do not receive, but has imposed on women a substantial burden that men need not suffer. The distinction between benefits and burdens is more than one of semantics. We held in Gilbert that § 703(a)(1) did not require that greater economic benefits be paid to one sex or the other "because of their differing roles in 'the scheme of human existence,' " 429 U.S., at 139, 97 S.Ct., at 410 n. 17. But that holding does not allow us to read § 703(a)(2) to permit an employer to burden female employees in such a way as to deprive them of employment opportunities because of their different role.4 Recognition that petitioner's facially neutral seniority system does deprive women of employment opportunities because of their sex does not end the inquiry under § 703(a)(2) of Title VII. If a company's business necessitates the adoption of particular leave policies, Title VII does not prohibit the company from applying these policies to all leaves of absence, including pregnancy leaves; Title VII is not violated even though the policies may burden female employees. Griggs, supra, 401 U.S. at 431, 91 S.Ct., at 853; Dothard v. Rawlinson, 433 U.S. 321, 331-332 n. 14, 97 S.Ct. 2720, 2728 n. 14, 53 L.Ed.2d 786 (1977). But we agree with the District Court in this case that since there was no proof of any business necessity adduced with respect to the policies in question, that court was entitled to "assume no justification exists."5 384 F.Supp., at 771.
II
12
On the basis of the evidence presented to the District Court, petitioner's policy of not awarding sick-leave pay to pregnant employees is legally indistinguishable from the disability-insurance program upheld in Gilbert. As in Gilbert, petitioner compensates employees for limited periods of time during which the employee must miss work because of a non-job-related illness or disability. As in Gilbert, the compensation is not extended to pregnancy-related absences. We emphasized in Gilbert that exclusions of this kind are not per se violations of Title VII: "[A]n exclusion of pregnancy from a disability-benefits plan providing general coverage is not a gender-based discrimination at all." 429 U.S., at 136, 97 S.Ct., at 408. Only if a plaintiff through the presentation of other evidence can demonstrate that exclusion of pregnancy from the compensated conditions is a mere " 'pretex[t] designed to effect an invidious discrimination against the members of one sex or the other' " does Title VII apply. Ibid.
13
In Gilbert, evidence had been introduced indicating that women drew substantially greater sums than did men from General Electric's disability-insurance program, even though it excluded pregnancy. Id., at 130-131, nn. 9 and 10, 97 S.Ct., at 405-406. But our holding did not depend on this evidence. The District Court in Gilbert expressly declined to find "that the present actuarial value of the coverage was equal as between men and women." Id., at 131, 97 S.Ct., at 406. We upheld the disability program on the ground "that neither [was] there a finding, nor was there any evidence which would support a finding, that the financial benefits of the Plan 'worked to discriminate against any definable group or class in terms of the aggregate risk protection derived by that group or class from the program.' " Id., at 138, 97 S.Ct., at 409. When confronted by a facially neutral plan, whose only fault is underinclusiveness, the burden is on the plaintiff to show that the plan discriminates on the basis of sex in violation of Title VII. Albemarle Paper Co. v. Moody, 422 U.S. 405, 425, 95 S.Ct. 2362, 2375, 45 L.Ed.2d 280 (1975); McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S.Ct. 1817, 1824, 36 L.Ed.2d 668 (1973).
14
We again need not decide whether, when confronted by a facially neutral plan, it is necessary to prove intent to establish a prima facie violation of § 703(a)(1). Cf. McDonnell Douglas Corp., supra, at 802-806, 93 S.Ct., at 1824-1826. Griggs, held that a violation of § 703(a)(2) can be established by proof of a discriminatory effect. But it is difficult to perceive how exclusion of pregnancy from a disability insurance plan or sick-leave compensation program "would deprive any individual of employment opportunities" or "otherwise adversely affect his status as an employee" in violation of § 703(a)(2). The direct effect of the exclusion is merely a loss of income for the period the employee is not at work; such an exclusion has no direct effect upon either employment opportunities or job status. Plaintiff's attack in Gilbert, supra, was brought under § 703(a)(1), which would appear to be the proper section of Title VII under which to analyze questions of sick-leave or disability payments.
15
Respondent failed to prove even a discriminatory effect with respect to petitioner's sick-leave plan. She candidly concedes in her brief before this Court that "petitioner's Sick Leave benefit plan is, in and of itself, for all intents and purposes, the same as the Weekly Sickness and Accident Insurance Plan examined in Gilbert" and that "if the exclusion of sick pay was the only manner in which respondent had been treated differently by petitioner, Gilbert would control." Brief for Respondent 10. Respondent, however, contends that because petitioner has violated Title VII by its policy respecting seniority following return from pregnancy leave, the sick-leave pay differentiation must also fall.
16
But this conclusion by no means follows from the premise. Respondent herself abandoned attacks on other aspects of petitioner's employment policies following rulings adverse to her by the District Court, a position scarcely consistent with her present one. We of course recognized both in Geduldig v. Aiello, 417 U.S. 484, 94 S.Ct. 2485, 41 L.Ed.2d 256 (1974), and in Gilbert, that the facial neutrality of an employee benefit plan would not end analysis if it could be shown that " 'distinctions involving pregnancy are mere pretexts designed to effect an invidious discrimination against the members of one sex or the other . . . .' " Gilbert, 429 U.S., at 135, 97 S.Ct., at 407. Petitioner's refusal to allow pregnant employees to retain their accumulated seniority may be deemed relevant by the trier of fact in deciding whether petitioner's sick-leave plan was such a pretext. But it most certainly does not require such a finding by a trier of fact, to say nothing of the making of such a finding as an original matter by this Court.
17
The District Court sitting as a trier of fact made no such finding in this case, and we are not advised whether it was requested to or not. The decision of the Court of Appeals was not based on any such finding, but instead embodied generally the same line of reasoning as the Court of Appeals for the Fourth Circuit followed in its opinion in Gilbert v. General Electric Co., 519 F.2d 661 (1975). Since we rejected that line of reasoning in our opinion in Gilbert, the judgment of the Court of Appeals with respect to petitioner's sick-pay policies must be vacated. That court and the District Court are in a better position than we are to know whether respondent adequately preserved in those courts the right to proceed further in the District Court on the theory which we have just described.6
18
Affirmed in part, vacated in part, and remanded.
19
Mr. Justice POWELL, with whom Mr. Justice BRENNAN and Mr. Justice MARSHALL join, concurring in the result and concurring in part.
20
I join Part I of the opinion of the Court affirming the decision of the Court of Appeals that petitioner's policy denying accumulated seniority for job-bidding purposes to female employees returning from pregnancy leave violates Title VII.1
21
I also concur in the result in Part II, for the legal status under Title VII of petitioner's policy of denying accumulated sick-pay benefits to female employees while on pregnancy leave requires further factual development in light of General Electric Co. v. Gilbert, 429 U.S. 125, 97 S.Ct. 401, 50 L.Ed.2d 343 (1976). I write separately, however, because the Court appears to have constricted unnecessarily the scope of inquiry on remand by holding prematurely that respondent has failed to meet her burden of establishing a prima facie case that petitioner's sick-leave policy is discriminatory under Title VII. This case was tried in the District Court and reviewed in the Court of Appeals before our decision in Gilbert. The appellant court upheld her claim in accord with the then uniform view of the Courts of Appeals that any disability plan that treated pregnancy differently from other disabilities was per se violative of Title VII.2 Since respondent had no reason to make the showing of gender-based discrimination required by Gilbert, I would follow our usual practice of vacating the judgment below and remanding to permit the lower court to reconsider its sick-leave ruling in light of our intervening decision.
22
The issue is not simply one of burden of proof, which properly rests with the Title VII plaintiff. Albemarle Paper Co. v. Moody, 422 U.S. 405, 425, 95 S.Ct. 2362, 2375, 45 L.Ed.2d 280 (1975); McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S.Ct. 1817, 1824, 36 L.Ed.2d 668 (1973), but of a "full opportunity for presentation of the relevant facts," Harris v. Nelson, 394 U.S. 286, 298, 89 S.Ct. 1082, 1098, 22 L.Ed.2d 281 (1969). Given the meandering course that Title VII adjudication has taken, final resolution of a lawsuit in this Court often has not been possible because the parties or the lower courts proceeded on what was ultimately an erroneous theory of the case. Where the mistaken theory is premised on the pre-existing understanding of the law, and where the record as constituted does not foreclose the arguments made necessary by our ruling, I would prefer to remand the controversy and permit the lower courts to pass on the new contentions in light of whatever additional evidence is deemed necessary.
23
For example, in Albemarle Paper Co. v. Moody, supra, the Court approved the Court of Appeals' conclusion that the employer had not proved the job relatedness of its testing program, but declined to permit immediate issuance of an injunction against all use of testing in the plant. The Court thought that a remand to the District Court was indicated in part because "[t]he appropriate standard of proof for job relatedness has not been clarified until today," and the plaintiffs "have not until today been specifically apprised of their opportunity to present evidence that even validated tests might be a 'pretext' for discrimination in light of alternative selection procedures available to the Company." 422 U.S., at 436, 95 S.Ct., at 2380.
24
Similarly, in International Bhd. of Teamsters v. United States, 431 U.S. 324, 97 S.Ct. 1843, 52 L.Ed.2d 396 (1977), we found a remand for further factual development appropriate because the Government had employed an erroneous evidentiary approach that precluded satisfaction of its burden of identifying which nonapplicant employees were victims of the employer's unlawful discrimination and thus entitled to a retroactive seniority award. "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." Id., at 371, 97 S.Ct., at 1873.3 Cf. Brown v. Illinois, 422 U.S. 590, 613-616, 95 S.Ct. 2254, 2266-2268, 45 L.Ed.2d 416 (1975) (Powell, J., concurring in part).
25
Here, respondent has abandoned the theory that enabled her to prevail in the District Court and the Court of Appeals. Instead, she urges that her case is distinguishable from Gilbert :
26
"Respondent submits that because the exclusion of sick pay is only one of the many ways in which female employees who experience pregnancy are treated differently by petitioner, the holding in Gilbert is not controlling. Upon examination of the overall manner in which female employees who experience pregnancy are treated by petitioner, it becomes plain that petitioner's policies are much more pervasive than the mere underinclusiveness of the Sickness and Accident Insurance Plan in Gilbert." Brief for Respondent 10.
27
At least two distinguishing characteristics are identified by respondent. First, as found by the District Court, only pregnant woman are required to take a leave of absence and are denied sick-leave benefits while in all other cases of nonoccupational disability sick-leave benefits are available. 384 F.Supp. 765, 767, 771 (MD Tenn. 1974). Second, the sick-leave policy is necessarily related to petitioner's discriminatory denial of job-bidding seniority to pregnant woman on mandatory maternity leave, presumably because both policies flow from the premise that a female employee is no longer in active service when she becomes pregnant.
28
Although respondent's theory is not fully articulated, she presents a plausible contention, one not required to have been raised until Gilbert and not foreclosed by the stipulated evidence of record, see Gilbert, 429 U.S., at 130-131 n. 9 and 131 n. 10, 97 S.Ct., at 405 n. 9 and 406 n. 10, or the concurrent findings of the lower courts, see Village of Arlington Heights v. Metropolitan Housing Dev. Corp., 429 U.S. 252, 270, 97 S.Ct. 555, 566, 50 L.Ed.2d 450 (1977). It is not inconceivable that on remand respondent will be able to show that the combined operation of petitioner's mandatory maternity-leave policy4 and denial of accumulated sick-pay benefits yielded significantly less net compensation for petitioner's female employees than for the class of male employees. A number of the former, but not the latter endured forced absence from work without sick pay or other compensation. The parties stipulated that between July 2, 1965, and August 27, 1974, petitioner had placed 12 employees on pregnancy leave, and that some of these employees were on leave for periods of two months or more. App. 33. It is possible that these women had not exhausted their sick-pay benefits at the time they were compelled to take maternity leave, and that the denial of sick pay for this period of absence resulted in a relative loss of net compensation for petitioner's female work force. Petitioner's male employees, on the other hand, are not subject to a mandatory leave policy, and are eligible to receive compensation in some form for any period of absence from work due to sickness or disability.
29
In short, I would not foreclose the possibility that the facts as developed on remand will support a finding that "the package is in fact worth more to men than to women." Gilbert, supra, 429 U.S., at 138, 97 S.Ct., at 409. If such a finding were made, I would view respondent's case as not barred by Gilbert.5 In that case, the Court related: "The District Court noted the evidence introduced during the trial, a good deal of it stipulated, concerning the relative cost to General Electric of providing benefits under the Plan to male and female employees, all of which indicated that, with pregnancy-related disabilities excluded, the cost of the Plan to General Electric per female employee was at least as high as, if not substantially higher than, the cost per male employee." 429 U.S., at 130, 97 S.Ct., at 405 (footnotes omitted). The District Court also "found that the inclusion of pregnancy-related disabilities within the scope of the Plan would 'increase G. E.'s [disability-benefits plan] costs by an amount which, though large, is at this time undeterminable.' 375 F.Supp., at 378." Id., at 131, 97 S.Ct., at 406. While the District Court declined to make an explicit finding that the actuarial value of the coverage was equal between men and women, it may have been referring simply to the quantum and specificity of proof necessary to establish a "business necessity" defense. See Gilbert v. General Electric Co., 375 F.Supp. 367, 382-383 (ED Va.1974). In any event, in Gilbert this Court viewed the evidence of record as precluding a prima facie showing of discrimination in "compensation" contrary to § 703(a)(1). "Whatever the ultimate probative value of the evidence introduced before the District Court on this subject . . ., at the very least it tended to illustrate that the selection of risks covered by the Plan did not operate, in fact, to discriminate against women." 429 U.S., at 137-138, 97 S.Ct., at 409. As the record had developed in Gilbert, there was no basis for a remand.
30
I do not view the record in this case as precluding a finding of discrimination in compensation within the principles enunciated in Gilbert.6 I would simply remand the sick-pay issue for further proceedings in light of our decision in that case.
31
Mr. Justice STEVENS, concurring in the judgment.
32
Petitioner enforces two policies that treat pregnant employees less favorably than other employees who incur a temporary disability. First, they are denied seniority benefits during their absence from work and thereafter; second, they are denied sick pay during their absence. The Court holds that the former policy is unlawful whereas the latter is lawful. I concur in the Court's judgment, but because I believe that its explanation of the legal distinction between the two policies may engender some confusion among those who must make compliance decisions on a day-to-day basis, I advance a separate, and rather pragmatic, basis for reconciling the two parts of the decision with each other and with General Electric Co. v. Gilbert, 429 U.S. 125, 97 S.Ct. 401, 50 L.Ed.2d 343.
33
The general problem is to decide when a company policy which attaches a special burden to the risk of absenteeism caused by pregnancy is a prima facie violation of the statutory prohibition against sex discrimination. The answer "always," which I had thought quite plainly correct,1 is foreclosed by the Court's holding in Gilbert. The answer "never" would seem to be dictated by the Court's view that a discrimination against pregnancy is "not a gender-based discrimination at all."2 The Court has, however, made it clear that the correct answer is "sometimes." Even though a plan which frankly and unambiguously discriminates against pregnancy is "facially neutral," the Court will find it unlawful if it has a "discriminatory effect."3 The question, then, is how to identify this discriminatory effect.
34
Two possible answers are suggested by the Court. The Court seems to rely on (a) the difference between a benefit and a burden, and (b) the difference between § 703(a)(2) and § 703(a)(1). In my judgment, both of these differences are illusory.4 I agree with the Court that the effect of the respondent's seniority plan is significantly different from that of the General Electric disability plan in Gilbert, but I suggest that the difference may be described in this way: Although the Gilbert Court was unwilling to hold that discrimination against pregnancy as compared with other physical disabilities—is discrimination on account of sex, it may nevertheless be true that discrimination against pregnant or formerly pregnant employees—as compared with other employees—does constitute sex discrimination. This distinction may be pragmatically expressed in terms of whether the employer has a policy which adversely effects a woman beyond the term of her pregnancy leave.
35
Although the opinion in Gilbert characterizes as "facially neutral" a company policy which differentiates between an absence caused by pregnancy and an absence caused by illness, the factual context of Gilbert limits the reach of that broad characterization. Under the Court's reasoning, the disability plan in Gilbert did not discriminate against pregnant employees or formerly pregnant employees while they were working for the company. If an employee, whether pregnant or nonpregnant, contracted the measles, he or she would receive disability benefits; moreover, an employee returning from maternity leave would also receive those benefits. On the other hand, pregnancy, or an illness occurring while absent on maternity leave, was not covered.5 During that period of maternity leave, the pregnant woman was temporarily cut off from the benefits extended by the Company's plan. At all other times, the woman was treated the same as other employees in terms of her eligibility for the plan's benefits.
36
The Company's seniority plan in this case has a markedly different effect. In attempting to return to work, the formerly pregnant woman is deprived of all previously accumulated seniority. The policy affects both her ability to re-enter the work force, and her compensation when she does return.6 The Company argues that these effects are permissible because they flow from its initial decision to treat pregnancy as an unexcused absence. But this argument misconceives the scope of the protection afforded by Gilbert to such initial decisions. For the General Electric plan did not attach any consequences to the condition of pregnancy that extended beyond the period of maternity leave. Gilbert allowed the employer to treat pregnancy leave as a temporal gap in the full employment status of a woman. During that period, the employer may treat the employee in a manner consistent with the determination that pregnancy is not an illness.7 In this case, however, the Company's seniority policy has an adverse impact on the employee's status after pregnancy leave is terminated. The formerly pregnant person is permanently disadvantaged as compared to the rest of the work force. And since the persons adversely affected by this policy constitute an exclusively female class, the Company's plan has an obvious discriminatory effect.8
37
Under this analysis, it is clear that petitioner's seniority rule discriminating against formerly pregnant employees is invalid. It is equally clear that the denial of sick pay during maternity leave is consistent with the Gilbert rationale, since the Company was free to withhold those benefits during that period.9
38
As is evident from my dissent in Gilbert, I would prefer to decide this case on a simpler rationale. Since that preference is foreclosed by Gilbert, I concur in the Court's judgment on the understanding that as the law now stands, although some discrimination against pregnancy—as compared with other physical disabilities—is permissible, discrimination against pregnant or formerly pregnant employees is not.
1
Respondent appears to believe that the two policies are indissolubly linked together, and that if one is found to violate Title VII the other must likewise be found to do so. Respondent herself, however, has not taken this tack throughout the course of her lawsuit. In the District Court she attacked not only the two policies at issue before us, but in addition petitioner's requirement that she commence her pregnancy leave five weeks prior to the delivery of her child, the termination of her temporary employment allegedly as retaliation for her complaint regarding petitioner's employment policies, and the lower benefits paid for pregnancy as compared to hospitalization for other causes under a group life, health, and accident policy paid for partly by petitioner and partly by its employees. The District Court concluded that respondent had not proved any of these practices to be violative of Title VII, and respondent did not appeal from that determination. Petitioner appealed from the District Court's conclusion that the two company policies presently in issue violate Title VII.
2
The appearance of neutrality rests in part on petitioner's contention that its pregnancy leave policy is identical to the formal leave of absence granted to employees, male or female, in order that they may pursue additional education. However, petitioner's policy of denying accumulated seniority to employees returning from leaves of absence has not to date been applied outside of the pregnancy context. Since 1962, only two employees have requested formal leaves of absence to pursue a college degree; neither employee has returned to work at petitioner.
3
The District Court found that even "employees returning from long periods of absence due to non-job related injuries do not lose their seniority and in fact their seniority continues to accumulate while absent." 384 F.Supp. 765, 768 (1974). The record reveals that at least one employee was absent from work for 10 months due to a heart attack and yet returned to her previous job at the end of this period with full seniority dating back to her date of hire.
4
Our conclusion that petitioner's job seniority policies violate Title VII finds support in the regulations of the Equal Employment Opportunity Commission (EEOC). 1972 guidelines of the EEOC specify that "[w]ritten and unwritten employment policies and practices involving . . . the accrual of seniority . . . and reinstatement . . . shall be applied to disability due to pregnancy or childbirth on the same terms and conditions as they are applied to other temporary disabilities." 29 CFR § 1604.10(b) (1976). In Gilbert, we rejected another portion of this same guideline because it conflicted with prior, and thus more contemporaneous, interpretations of the EEOC, with interpretations of other federal agencies charged with executing legislation dealing with sex discrimination, and with the applicable legislative history of Title VII. We did not, however, set completely at naught the weight to be given the 1972 guideline. 429 U.S., at 143, 97 S.Ct., at 411. Cf. Griggs v. Duke Power Co., 401 U.S. 424, 434, 91 S.Ct. 849, 855, 28 L.Ed.2d 158 (1971).
The portion of the 1972 guideline which prohibits the practice under attack here is fully consistent with past interpretations of Title VII by the EEOC. See, e. g., EEOC, First Annual Report, H.R.Doc.No. 86, 90th Cong., 1st Sess., 40 (1967); EEOC, First Annual Digest of Legal Interpretations, July 1965-July 1966, p. 21 (Opinion Letter GC 218-66 (June 23, 1966)); CCH EEOC Decisions (1973) ¶ 6084 n. 1 (Dec. 16, 1969); CCH EEOC Decisions (1973) ¶ 6184 (Dec. 4, 1970). Nor have we been pointed to any conflicting opinions of other federal agencies responsible for regulating in the field of sex discrimination. This portion of the 1972 guideline is therefore entitled to more weight than was the one considered in Gilbert. Skidmore v. Swift & Co., 323 U.S. 134, 140, 65 S.Ct. 161, 164, 89 L.Ed. 124 (1944).
5
Indeed, petitioner's policy of denying accumulated seniority to employees returning from pregnancy leave might easily conflict with its own economic and efficiency interests. In particular, as a result of petitioner's policy, inexperienced employees are favored over experienced employees; employees who have spent lengthy periods with petitioner and might be expected to be more loyal to the company are displaced by relatively new employees. Female employees may also be less motivated to perform efficiently in their jobs because of the greater difficulty of advancing through the firm.
6
Our Brother POWELL in his concurring opinion suggests that we also remand to allow respondent to develop a theory not articulated to us, viz., that petitioner's sick-leave plan is monetarily worth more to men than to women. He suggests that this expansive remand is required because at the time respondent formulated her case she "had no reason to make the showing of gender-based discrimination required by Gilbert." Post, at 148. Respondent's complaint was filed in the District Court on July 1, 1974; a pretrial order was entered by that court setting forth the plaintiff's theory and the defendant's theory on August 28, 1974; and the District Court's memorandum and order for judgment were filed on November 4 and November 20, 1974, respectively. The first of the Court of Appeals cases which our Brother POWELL refers to is Wetzel v. Liberty Mutual Ins. Co., 511 F.2d 199 (CA3), which was decided on February 11, 1975. See opinion of Mr. Justice BRENNAN, dissenting in General Electric Co. v. Gilbert, 429 U.S., at 146, 97 S.Ct., at 413. Not only at the time that respondent filed a complaint, but at the time the District Court rendered its decision, Geduldig v. Aiello, 417 U.S. 484, 94 S.Ct. 2485, 41 L.Ed.2d 256 (1974), had been very recently decided, and the most that can be said on respondent's behalf is that the question of whether the analysis of that case would be carried over to cognate sections of Title VII was an open one. Our opinion in Gilbert on this and other issues, of course, speaks for itself; we do not think it can rightly be characterized as so drastic a change in the law as it was understood to exist in 1974 as to enable respondent to raise or reopen issues on remand that she would not under settled principles be otherwise able to do. We assume that the Court of Appeals and the District Court will apply these latter principles in deciding what claims may be open to respondent on remand.
1
I would add, however, that petitioner's seniority policy, on its face, does not "appea[r] to be neutral in its treatment of male and female employees." Ante, at 140. As the District Court noted below, "only pregnant woman are required to take leave and thereby lose job bidding seniority and no leave is required in other non-work-related disabilities . . . ." 384 F.Supp. 765, 771 (MD Tenn.1974). This mandatory maternity leave is not "identical to the formal leave of absence granted to employees, male or female, in order that they may pursue additional education." Ante, at 140 n. 2.
2
See cases cited in General Electric Co. v. Gilbert, 429 U.S. 125, 147, 97 S.Ct. 401, 413, 50 L.Ed.2d 343 (1976) (Brennan, J., dissenting).
Gilbert held that the rationale articulated in Geduldig v. Aiello, 417 U.S. 484, 94 S.Ct. 2485, 41 L.Ed.2d 256 (1974), involving a challenge on equal protection grounds, also applied to a Title VII claim with respect to the treatment of pregnancy in benefit plans. See 429 U.S., at 133-136, 97 S.Ct., at 406-408. Since Geduldig itself was silent on the Title VII issue, the Courts of Appeals not unreasonably failed to anticipate the extent to which the Geduldig rationale would be deemed applicable in the statutory context. See Washington v. Davis, 426 U.S. 229, 246-248, 96 S.Ct. 2040, 2051-2052, 48 L.Ed.2d 597 (1976).
3
The Court also declined to "evaluated abstract claims concerning the equitable balance that should be struck between the statutory rights of victims and the contractual rights of nonvictim employees," preferring to lodge this task, in the first instance, with the trial court which would be best able to deal with the problem in light of the facts developed at the hearings on remand. 431 U.S., at 376, 97 S.Ct., at 1875.
4
The majority places some reliance on respondent's failure to appeal from the part of the District Court's ruling which found petitioner's mandatory leave policy to be lawful under Title VII. Ante, at 138 n. 1, and 145. For the reasons stated in the text, however, petitioner's maintenance of a mandatory maternity-leave policy, even if entirely lawful, may have a bearing on the question whether the sick-pay policy "is in fact worth more to men than to women," Gilbert, 429 U.S., at 138, 97 S.Ct., at 409.
5
Also, if the theory left open by the Court's remand is demonstrated, Gilbert will present no bar.
6
The Court's opinion at one point appears to read Gilbert as holding that a Title VII plaintiff in a § 703(a)(1) case must demonstrate that "exclusion of pregnancy from the compensated conditions is a mere 'pretex[t].' " Ante, at 144. Later in its opinion, the Court states that we need not decide "whether, when confronted by a facially neutral plan, it is necessary to prove intent to establish a prima facie violation of § 703(a)(1)." Ibid. As noted in n. 1, supra, I cannot assume that petitioner's seniority policy in this case is facially neutral. Moreover, although there may be some ambiguity in the language in Gilbert, see concurring opinions of Mr. Justice Stewart and Mr. Justice Blackmun, 429 U.S., at 146, 97 S.Ct., at 413, I viewed our decision in that case as grounded primarily on the emphasized fact that no discrimination in compensation as required by § 703(a)(1) had been shown. Indeed, a fair reading of the evidence in Gilbert demonstrated that the total compensation of women in terms of disability-benefit plans well may have exceeded that of men. I do not suggest that mathematical exactitude can or need be shown in every § 703(a)(1) case. But essential equality in compensation for comparable work is at the heart of § 703(a)(1). In my view, proof of discrimination in this respect would establish a prima facie violation.
1
"An analysis of the effect of a company's rules relating to absenteeism would be appropriate if those rules referred only to neutral criteria, such as whether an absence was voluntary or involuntary, or perhaps particularly costly. This case, however, does not involve rules of that kind.
"Rather, the rule at issue places the risk of absence caused by pregnancy in a class by itself. By definition, such a rule discriminates on account of sex; for it is the capacity to become pregnant which primarily differentiates the female from the male. The analysis is the same whether the rule relates to hiring, promotion, the acceptability of an excuse for absence, or an exclusion from a disability insurance plan." General Electric Co. v. Gilbert, 429 U.S. 125, 161-162, 97 S.Ct. 401, 421, 50 L.Ed.2d 343 (Stevens, J., dissenting).
2
In Gilbert, supra, at 136, 97 S.Ct., at 408, the Court held that "an exclusion of pregnancy from a disability-benefits plan providing general coverage is not a gender-based discrimination at all." Consistently with that holding, the Court today states that a "decision not to treat pregnancy as a disease or disability for purposes of seniority retention is not on its face a discriminatory policy." Ante, at 140.
3
Ante, at 141; 429 U.S., at 146, 97 S.Ct., at 413 (Stewart, J., concurring); ibid. (Blackmun, J., concurring in part).
4
Differences between benefits and burdens cannot provide a meaningful test of discrimination since, by hypothesis, the favored class is always benefited and the disfavored class is equally burdened. The grant of seniority is a benefit which is not shared by the burdened class; conversely, the denial of sick pay is a burden which the benefited class need not bear.
The Court's second apparent ground of distinction is equally unsatisfactory. The Court suggests that its analysis of the seniority plan is different because that plan was attacked under § 703(a)(2) of Title VII, not § 703(a)(1). Again, I must confess that I do not understand the relevance of this distinction. It is true that § 703(a)(1) refers to "discrimination" and § 703(a)(2) does not. But the Court itself recognizes that this is not significant since a violation of § 703(a)(2) occurs when a facially neutral policy has a "discriminatory effect." Ante, at 141 (emphasis added). The Court also suggests that § 703(a)(1) may contain a requirement of intent not present in § 703(a)(2). Whatever the merits of that suggestion, it is apparent that it does not form the basis for any differentiation between the two subparagraphs of § 703 in this case, since the Court expressly refuses to decide the issue. Ante, at 144.
5
See Gilbert, 429 U.S., at 129 n. 4, 97 S.Ct., at 404. Although I have the greatest difficulty with the Court's holding in Gilbert that it was permissible to refuse coverage for an illness contracted during maternity leave, I suppose this aspect of Gilbert may be explained by the notion that any illness occurring at that time is treated as though it were attributable to pregnancy, and therefore is embraced within the area of permissible discrimination against pregnancy.
6
Ante, at 138-139.
7
These two limitations—that the effect of the employer's policy be limited to the period of the pregnancy leave and that it be consistent with the determination that pregnancy is not an illness—serve to focus the disparate effect of the policy on pregnancy rather than on pregnant or formerly pregnant employees. Obviously, policies which attach a burden to pregnancy also burden pregnant or formerly pregnant persons. This consequence is allowed by Gilbert, but only to the extent that the focus of the policy is, as indicated above, on the physical condition rather than the person.
8
This analysis is consistent with the approach taken by lower courts to post-Gilbert claims of pregnancy-based discrimination, which have recognized that Gilbert has "nothing to do with foreclosing employment opportunity." Cook v. Arentzen, 14 EPD ¶ 7544, p. 4702 (CA4 1977); MacLennan v. American Airlines, Inc., 440 F.Supp. 466 (Va. 1977) (addressing the question of when, if ever, an employer can require an employee to take pregnancy leave). This case does not pose the issue of when an employer may require an employee to take pregnancy leave. Ante, at 138 n. 1.
9
In his concurring opinion, Mr. Justice POWELL seems to suggest that even when the employer's disparate treatment of a pregnant employee is limited to the period of the pregnancy leave, it may still violate Title VII if the company's rule has a greater impact on one sex than another. Ante, at 151-152. If this analysis does not require an overruling of Gilbert it must be applied with great caution, since the laws of probability would invalidate an inordinate number of rules on such a theory. It is not clear to me what showing, beyond "mathematical exactitude," see ante, at 152 n. 6, is necessary before this Court will hold that a classification, which is by definition gender specific, discriminates on the basis of sex. Usually, statistical disparities aid a court in determining whether an apparently neutral classification is, in effect, gender or race specific. Here, of course, statistics would be unnecessary to prove that point. In all events, I agree with the Court that this issue is not presented to us in this case, and accordingly concur in the Court's determination of the proper scope of the remand.
| 12
|
434 U.S. 125
98 S.Ct. 340
54 L.Ed.2d 346
State of NEW YORK, Appellant,v.CATHEDRAL ACADEMY.
No. 76-616.
Argued Oct. 3, 1977.
Decided Dec. 6, 1977.
Syllabus
A three-judge District Court issued a judgment (later affirmed by this Court) declaring unconstitutional a New York statute (1970 N.Y.Laws, ch. 138) that authorized reimbursement to nonpublic schools for state-mandated recordkeeping and testing services, and permanently enjoining any payments under the Act, including reimbursement for expenses that such schools had already incurred in the last half of the 1971-1972 school year. Thereafter the New York State Legislature enacted 1972 N.Y.Laws, ch. 996, authorizing reimbursement to sectarian schools for their expenses of performing the state-required services through the 1971-1972 school year. Appellee sectarian school brought this reimbursement action under ch. 996 in the New York Court of Claims, which held that the statute violated the First and Fourteenth Amendments. The New York Court of Appeals, being of the view that ch. 996 comported with this Court's decision in Lemon v. Kurtzman, 411 U.S. 192, 93 S.Ct. 1463, 36 L.Ed.2d 151 (Lemon II ), ultimately reversed, and remanded the case for a determination of the amount of appellee's claim. In that case, after a state statute authorizing payments to sectarian schools for specified secular services had been struck down (in Lemon v. Kurtzman, 403 U.S. 602, 91 S.Ct. 2105, 29 L.Ed.2d 745 (Lemon I )) and the trial court on remand had enjoined payments under the statute for any services performed after that decision but had not prohibited payments for services provided before that date, the Court approved such disposition on the ground that equitable flexibility permitted weighing the "remote possibility of constitutional harm from allowing the State to keep its bargain" against the substantial reliance of the schools that had incurred expenses at the State's express invitation. Held :
1. This Court has jurisdiction of this appeal as the Court of Appeals' decision was a final determination of the federal constitutional issue and is ripe for appellate review under 28 U.S.C. § 1257(2). P. 128.
2. Chapter 996 violates the First Amendment as made applicable to the States by the Fourteenth because it will necessarily have the primary effect of aiding religion, or will result in excessive state involvement in religious affairs. Lemon II distinguished. Pp. 128-133.
(a) Here (contrary to the situation in Lemon II ) the District Court had expressly enjoined payments for amounts "heretofore or hereafter expended." To approve enactment of ch. 996, which thus was inconsistent with the District Court's order, would expand the reasoning of Lemon II to hold that a state legislature may effectively modify a federal court's injunction whenever a balancing of constitutional equities might conceivably have justified the court's granting similar relief in the first place. Pp. 128-130.
(b) If ch. 996 authorizes payments for the identical services that were to be reimbursed under ch. 138, it is for the identical reasons invalid. Pp. 130-131.
(c) Even if, as appellee contends, the Court of Claims was authorized to make an audit on the basis of which it would authorize reimbursement of sectarian schools only for clearly secular purposes, such a detailed inquiry would itself encroach upon the First and Fourteenth Amendments by making that court the arbiter of an essentially religious dispute. Pp. 131-133.
3. Contrary to Lemon II, the equities do not support what the state legislature has done in ch. 996, which constitutes a new and independently significant infringement of the First and Fourteenth Amendments. Moreover, appellee could have relied on ch. 138 only by spending its own funds for nonmandated, and perhaps sectarian, activities that it might otherwise not have been able to afford. Pp. 133-134.
39 N.Y.2d 1021, 387 N.Y.S.2d 246, 355 N.E.2d 300, reversed and remanded.
Jean M. Coon, Albany, N. Y., for appellant.
Richard E. Nolan, New York City, for appellee.
Mr. Justice STEWART delivered the opinion of the Court.
1
In April of 1972 a three-judge United States District Court for the Southern District of New York declared unconstitutional New York's Mandated Services Act, 1970 N.Y. Laws, ch. 138, which authorized fixed payments to nonpublic schools as reimbursement for the cost of certain recordkeeping and testing services required by state law. Committee for Public Education & Religious Liberty v. Levitt, 342 F.Supp. 439. The court's order permanently enjoined any payments under the Act, including reimbursement for expenses that schools had already incurred in the last half of the 1971-1972 school year.1 This Court subsequently affirmed that judgment. Levitt v. Committee for Public Education, 413 U.S. 472, 93 S.Ct. 2814, 37 L.Ed.2d 736.
2
In June 1972 the New York State Legislature responded to the District Court's order by enacting ch. 996 of the 1972 N.Y.Laws. The Act "recognize[d] a moral obligation to provide a remedy whereby . . . schools may recover the complete amount of expenses incurred by them prior to June thirteenth [, 1972,] in reliance on" the invalidated ch. 138, and conferred jurisdiction on the New York Court of Claims "to hear, audit and determine" the claims of nonprofit private schools for such expenses. Thus the Act explicitly authorized what the District Court's injunction had prohibited: reimbursement to sectarian schools for their expenses of performing state-mandated services through the 1971-1972 academic year.
3
The appellee, Cathedral Academy, sued under ch. 996 in the Court of Claims, and the State defended on the ground that the Act was unconstitutional.2 The Court of Claims agreed that ch. 996 violated the First and Fourteenth Amendments, and dismissed Cathedral Academy's suit. 77 Misc.2d 977, 354 N.Y.S.2d 370. The Appellate Division affirmed, 47 A.D.2d 390, 366 N.Y.S.2d 900, but the New York Court of Appeals, adopting a dissenting opinion in the Appellate Division, reversed and remanded the case to the Court of Claims for determination of the amount of the Academy's claim.3 39 N.Y.2d 1021, 387 N.Y.S.2d 246, 355 N.E.2d 300. An appeal was taken to this Court, and we postponed further consideration of the question of our appellate jurisdiction until the hearing on the merits. 429 U.S. 1089, 97 S.Ct. 1097, 51 L.Ed.2d 534. We conclude that the Court of Appeals' decision finally determined the federal constitutional issue and is ripe for appellate review in this Court under 28 U.S.C. § 1257(2).4
4
* The state courts and the parties have all considered this case to be controlled by the principles established in Lemon v. Kurtzman, 411 U.S. 192, 93 S.Ct. 1463, 36 L.Ed.2d 151 (Lemon II ), which concerned the permissible scope of a Federal District Court's injunction forbidding payments to sectarian schools under an unconstitutional state statute. Previously in that same litigation we had declared unconstitutional a Pennsylvania statute authorizing payments to sectarian schools for specific secular services provided under contract with the State, and remanded the case to the trial court for entry of an appropriate decree. Lemon v. Kurtzman, 403 U.S. 602, 91 S.Ct. 2105, 29 L.Ed.2d 745 (Lemon I ). On remand, the District Court enjoined payments under the statute for any services performed after the date of this Court's decision, but did not prohibit payments for services provided before that date. 348 F.Supp. 300, 301 n. 1 (E.D.Pa.). In Lemon II this Court affirmed the trial court's denial of retroactive injunctive relief against the State, noting that "in constitutional adjudication as elsewhere, equitable remedies are a special blend of what is necessary, what is fair, and what is workable." 411 U.S., at 200, 93 S.Ct., at 1469 (footnote omitted).
5
The primary constitutional evil that the Lemon II injunction was intended to rectify was the excessive governmental entanglement inherent in Pennsylvania's elaborate procedures for ensuring that "educational services to be reimbursed by the State were kept free of religious influences." Id., at 202, 93 S.Ct., at 1470. The payments themselves were assumed to be constitutionally permissible, since they were not to be directly supportive of any sectarian activities. Because the State's supervision had long since been completed with respect to expenses already incurred, the proposed payments were held to pose no continued threat of excessive entanglement. Two other problems having "constitutional overtones"—the impact of a final audit and the effect of funding even the entirely nonreligious activities of a sectarian school—threatened minimal harm "only once under special circumstances that will not recur." Ibid.
6
In this context this Court held that the unique flexibility of equity permitted the trial court to weigh the "remote possibility of constitutional harm from allowing the State to keep its bargain" against the substantial reliance of the schools that had incurred expenses at the express invitation of the State. The District Court, "applying familiar equitable principles," could properly decline to enter an injunction that would do little if anything to advance constitutional interests while working considerable hardship on the schools. Cf. Hecht Co. v. Bowles, 321 U.S. 321, 64 S.Ct. 587, 88 L.Ed. 754.
7
In the present case, however, the District Court did not limit its decree as the court had done in Lemon II, but instead expressly enjoined payments for amounts "heretofore or hereafter expended." See n. 1, supra (emphasis supplied). The state legislature thus took action inconsistent with the court's order when it passed ch. 996 upon its own determination that, because schools like the Academy had relied to their detriment on the State's promise of payment under ch. 138, the equities of the case demanded retroactive reimbursement. To approve the enactment of ch. 996 would thus expand the reasoning of Lemon II to hold that a state legislature may effectively modify a federal court's injunction whenever a balancing of constitutional equities might conceivably have justified the court's granting similar relief in the first place. But cf. Wright v. Council of City of Emporia, 407 U.S. 451, 467, 92 S.Ct. 2196, 2205, 33 L.Ed.2d 51. This rule would mean that every such unconstitutional statute, like every dog, gets one bite, if anyone has relied on the statute to his detriment. Nothing in Lemon II, whose concern was to "examine the District Court's evaluation of the proper means of implementing an equitable decree," 411 U.S., at 200, 93 S.Ct., at 1469, suggests such a broad general principle.
8
But whether ch. 996 is viewed as an attempt at legislative equity or simply as a law authorizing payments from public funds to sectarian schools, the dispositive question is whether the payments it authorizes offend the First and Fourteenth Amendments.
II
9
The law at issue here, ch. 996, authorizes reimbursement for expenses incurred by the schools during the specified time period
10
"in rendering services for examination and inspection in connection with administration, grading and the compiling and reporting of the results of tests and examinations, maintenance of records of pupil enrollment and reporting thereon, maintenance of pupil health records, recording of personnel qualifications and characteristics and the preparation and submission to the state of various other reports required by law or regulation."
11
It expressly states that the basis for the legislation is the State's representation in the now invalidated ch. 138 that such expenses would be reimbursed. Thus, while ch. 996 provides for only one payment rather than many, and changes the method of administering the payments, nothing on the face of the statute indicates that payments under ch. 996 would differ in any substantial way from those authorized under ch. 138.
12
Unlike the constitutional defect in the state law before us in Lemon I, the constitutional invalidity of ch. 138 lay in the payment itself, rather than in the process of its administration. The New York statute was held to be constitutionally invalid because "the aid that [would] be devoted to secular functions [was] not identifiable and separable from aid to sectarian activities." Levitt v. Committee for Public Education, 413 U.S., at 480, 93 S.Ct., at 2819. This was so both because there was no assurance that the lump-sum payments reflected actual expenditures for mandated services, and because there was an impermissible risk of religious indoctrination inherent in some of the required services themselves. We noted in particular the "substantial risk that . . . 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." Ibid. Thus it can hardly be doubted that if ch. 996 authorizes payments for the identical services that were to be reimbursed under ch. 138, it is for the identical reasons invalid.
13
The Academy argues, however, that the Court of Appeals has construed the statute to require a detailed audit in the Court of Claims to "establish whether or not the amounts claimed for mandated services constitute a furtherance of the religious purposes of the claimant." 47 A.D.2d at 397, 366 N.Y.S.2d at 906. This language is said to require the Court of Claims to review in detail all expenditures for which reimbursement is claimed, including all teacher-prepared tests, in order to assure that state funds are not given for sectarian activities. We find nothing in the opinions of the state courts to indicate that such an audit is authorized under ch. 996.5
14
But even if such an audit were contemplated, we agree with the appellant that this sort of detailed inquiry into the subtle implications of in-class examinations and other teaching activities would itself constitute a significant encroachment on the protections of the First and Fourteenth Amendments. In order to prove their claims for reimbursement, sectarian schools would be placed in the position of trying to disprove any religious content in various classroom materials. In order to fulfill its duty to resist any possibly unconstitutional payment, see n. 2, supra, the State as defendant would have to undertake a search for religious meaning in every classroom examination offered in support of a claim. And to decide the case, the Court of Claims would be cast in the role of arbiter of the essentially religious dispute.
15
The prospect of church and state litigating in court about what does or does not have religious meaning touches the very core of the constitutional guarantee against religious establishment, and it cannot be dismissed by saying it will happen only once. Cf. Presbyterian Church v. Mary Elizabeth Blue Hull Memorial Presbyterian Church, 393 U.S. 440, 89 S.Ct. 601, 21 L.Ed.2d 658. When it is considered that ch. 996 contemplates claims by approximately 2,000 schools in amounts totaling over $11 million, the constitutional violation is clear.
16
For the reasons stated, we hold that ch. 996 is unconstitutional because it will of necessity either have the primary effect of aiding religion, see Levitt v. Committee for Public Education, supra, or will result in excessive state involvement in religious affairs. See Lemon I, 403 U.S. 602.
III
17
But even assuming, as the New York Court of Appeals did, that under Lemon II a decree of constitutional infirmity may be tolerated in a state law if other equitable considerations predominate, we cannot agree that the equities support what the state legislature has done in ch. 996.
18
In Lemon II the constitutional vice of excessive entanglement was an accomplished fact that could not be undone by enjoining payments for expenses previously incurred. And precisely because past practices had clearly identified permissibly reimbursable secular expenses, an additional single payment was held not to threaten the additional constitutional harm of state support to religious activities. By contrast, ch. 996 amounts to a new and independently significant infringement of the First and Fourteenth Amendments.
19
Moreover the Academy's detrimental reliance on the promise of ch. 138 was materially different from the reliance of the schools in Lemon II. Unlike the Pennsylvania schools, the Academy was required by pre-existing state law to perform the services reimbursed under ch. 138. In essence, the Academy could have relied on ch. 138 only by spending its own funds for nonmandated, and perhaps sectarian, activities that it might not otherwise have been able to afford. While this Court has never held that freeing private funds for sectarian uses invalidates otherwise secular aid to religious institutions, see Roemer v. Maryland Public Works Board, 426 U.S. 736, 747, and n. 14 (plurality opinion), it is quite another matter to accord positive weight to such a reliance interest in the balance against a measurable constitutional violation.
20
Accordingly, the judgment of the New York Court of Appeals is reversed, and the case is remanded to that court for further proceedings not inconsistent with this opinion.
21
It is so ordered.]
22
The CHIEF JUSTICE and Mr. Justice REHNQUIST believe that this case is controlled by the principles established in Lemon v. Kurtzman, 411 U.S. 192 (1973), and would therefore affirm the judgment of the court of Appeals of New York.
23
Mr. Justice WHITE, dissenting.
24
Because the Court continues to misconstrue the Fist Amendment in a manner that discriminates against religion and is contrary to the fundamental educational needs of the country, I dissent here as I have in Lemon v. Kurtzman, 403 U.S. 602 (1971); Committee for Public Education v. Nyquist, 413 U.S. 756 (1973); Levitt v. Committee for Public Education, 413 U.S. 472 (1973); Meek v. Pittenger, 421 U.S. 349 (1975); and Wolman v. Walter, 433 U.S. 229 (1977).
1
The order permanently enjoined "all persons acting for or on behalf of the State of New York . . . from making any payments or disbursements out of State funds pursuant to the provisions of Chapter 138 of the New York Laws of 1970, in payment for or reimbursement of any moneys heretofore or hereafter expended by nonpublic elementary and secondary schools." No. 70 Civ. 3251 (June 1, 1972).
2
At oral argument the Assistant Solicitor General of New York said that the State of New York frequently defends against claims for payment on the ground that the enabling Act authorizing suit in the Court of Claims is unconstitutional.
3
The dissenting judges in the Court of Appeals voted to affirm on the majority opinion in the Appellate Division. 39 N.Y.2d at 1022, 355 N.E.2d 300. We shall refer to the dissenting opinion of Justice Herlihy in the Appellate Division, 47 A.D.2d 396, 366 N.Y.S.2d 905, adopted by the majority in the Court of Appeals, as the opinion of the Court of Appeals.
4
It is clear that the New York Court of Appeals has finally determined that under the principles established in Lemon v. Kurtzman, 411 U.S. 192, 93 S.Ct. 1463, 36 L.Ed.2d 151 (Lemon II ), the Academy and other schools in similar positions are entitled to prove claims for reimbursement under ch. 996. While the Court of Appeals remanded for an audit in the Court of Claims to determine the amount of the Academy's claim, and while the precise scope of the audit is unclear, we conclude for the reasons stated in Part II of the text below that no possible developments on remand could sufficiently minimize the risk of future constitutional harm to justify relief even under Lemon II's balancing of constitutional and equitable considerations. Since further proceedings cannot remove or otherwise affect this threshold federal issue, the Court of Appeals' decision, is final for purposes of review in this Court. See Cox Broadcasting Corp. v. Cohn, 420 U.S. 469, 478-480, 95 S.Ct. 1029, 1037-1038, 43 L.Ed.2d 328.
5
The Court of Claims dismissed the Academy's claim in part because it found no "enforceable standards or guidelines" in ch. 996 "which would enable this Court to separate and apportion the single per-pupil allotment among the various allowed purposes." 77 Misc.2d, at 985, 354 N.Y.S.2d, at 378. Thus it did not believe that ch. 996 authorized it to reimburse schools only for clearly secular expenses, such as the cost of maintaining attendance and medical records, while refusing payments for other "allowed purposes" such as in-class examinations that this Court had held impermissible. The opinion of the Court of Appeals does not contradict this interpretation.
While the language quoted in the text is somewhat ambiguous, it appears that the Court of Appeals interpreted ch. 996 to require an audit similar to the post-audit contemplated in Lemon II, in which "the burden will be upon the claimant to prove that the items of its claims are in fact solely for mandated services . . . ." 47 A.D.2d at 400, 366 N.Y.S.2d, at 908. As was made clear in Levitt v. Committee for Public Education, 413 U.S. 472, 93 S.Ct. 2814, 37 L.Ed.2d 736, however, limiting reimbursement to mandated services would not fully address the constitutional objections to ch. 138, since it would provide no assurance against reimbursement for sectarian mandated services. Thus, a post-audit like the one contemplated in Lemon II, which the Court characterized as a "ministerial 'cleanup' function," 411 U.S., at 202, 93 S.Ct., at 1470, would not in this case exclude payments that impermissibly aided religious purposes.
6
The parties have considered the Academy's claim a test of the constitutionality of ch. 996. Claims filed by other schools have been stayed in the Court of Claims pending the resolution of this case.
| 23
|
434 U.S. 159
98 S.Ct. 364
54 L.Ed.2d 376
UNITED STATES, Petitioner,v.NEW YORK TELEPHONE COMPANY.
No. 76-835.
Argued Oct. 3, 1977.
Decided Dec. 7, 1977.
Syllabus
On the basis of an FBI affidavit stating that certain individuals were conducting an illegal gambling enterprise at a specified New York City address and that there was probable cause to believe that two telephones with different numbers were being used there to further the illegal activity, the District Court authorized the FBI to install and use pen registers with respect to the two telephones, and directed respondent telephone company to furnish the FBI "all information, facilities and technical assistance" necessary to employ the devices, which (without overhearing oral communications or indicating whether calls are completed) record the numbers dialed. The FBI was ordered to compensate respondent at prevailing rates. Respondent, though providing certain information, refused to lease to the FBI lines that were needed for unobtrusive installation of the pen registers, and thereafter filed a motion in the District Court to vacate that portion of the pen register order directing respondent to furnish facilities and technical assistance to the FBI, on the ground that such a directive could be issued only in connection with a wiretap order meeting the requirements of Title III of the Omnibus Crime Control and Safe Streets Act of 1968. The District Court ruled adversely to respondent, holding that pen registers are not governed by Title III; that the court had jurisdiction to authorize installation of the devices upon a showing of probable cause; and that it had authority to direct respondent to assist in the installation both under the court's inherent powers and under the All Writs Act, which gives federal courts authority to issue "all writs necessary or appropriate in aid of their respective jurisdictions and agreeable to the usages and principles of law." Though agreeing with the District Court's Title III rationale, and concluding that district courts have power either inherently or as a logical derivative of Fed.Rule Crim.Proc. 41, to authorize pen register surveillance upon a probable-cause showing, the Court of Appeals, affirming in part and reversing in part held that the District Court abused its discretion in ordering respondent to assist in installing and operating the pen registers, and expressed concern that such a requirement could establish an undesirable precedent for the authority of federal courts to impress unwilling aid on private third parties. Held : 1. Title III, which is concerned only with orders "authorizing or approving the interception of a wire or oral communication" does not govern the authorization of the use of pen registers, which do not "intercept" because they do not acquire the "contents" of communications as those terms are defined in the statute. Moreover the legislative history of Title III shows that the definition of "intercept" was designed to exclude pen registers. Pp. 165-168.
2. The District Court under Fed.Rule Crim.Proc. 41 had power to authorize the installation of the pen registers, that Rule being sufficiently flexible to include within its scope electronic intrusions authorized upon a finding of probable cause. Pp. 168-170.
3. The order compelling respondent to provide assistance was clearly authorized by the All Writs Act and comported with the intent of Congress. Pp. 171-178.
(a) The power conferred by the Act extends, under appropriate circumstances, to persons who (though not parties to the original action or engaged in wrongdoing) are in a position to frustrate the implementation of a court order or the proper administration of justice. Here respondent, which is a highly regulated public utility with a duty to serve the public, was not so far removed as a third party from the underlying controversy that its assistance could not permissibly be compelled by the order of the court based on a probable-cause showing that respondent's facilities were being illegally used on a continuing basis. Moreover, respondent concededly uses the devices for its billing operations, detecting fraud, and preventing law violations. And, as the Court of Appeals recognized, provision of a leased line by respondent was essential to fulfillment of the purpose for which the pen register order had been issued. Pp. 171-175.
(b) The District Court's order was consistent with a 1970 amendment to Title III providing that "[a]n order authorizing the interception of a wire or oral communication shall, upon request of the applicant, direct that a communication common carrier . . . furnish the applicant forthwith all information, facilities, and technical assistance necessary to accomplish the interception unobtrusively. . . ." Pp. 176-177.
2 Cir., 538 F.2d 956, reversed.
Lawrence G. Wallace, Washington, D. C., for petitioner.
George E. Ashley, New York City, for respondent.
Mr. Justice WHITE delivered the opinion of the Court.
1
This case presents the question of whether a United States District Court may properly direct a telephone company to provide federal law enforcement officials the facilities and technical assistance necessary for the implementation of its order authorizing the use of pen registers1 to investigate offenses which there was probable cause to believe were being committed by means of the telephone.
2
* On March 19, 1976, the United States District Court for the Southern District of New York issued an order authorizing agents of the Federal Bureau of Investigation (FBI) to install and use pen registers with respect to two telephones and directing the New York Telephone Co. (Company) to furnish the FBI "all information, facilities and technical assistance" necessary to employ the pen registers unobtrusively. The FBI was ordered to compensate the Company at prevailing rates for any assistance which it furnished. App. 6-7. The order was issued on the basis of an affidavit submitted by an FBI agent which stated that certain individuals were conducting an illegal gambling enterprise at 220 East 14th Street in New York City and that, on the basis of facts set forth therein, there was probable cause to believe that two telephones bearing different numbers were being used at that address in furtherance of the illegal activity. Id., at 1-5. The District Court found that there was probable cause to conclude that an illegal gambling enterprise using the facilities of interstate commerce was being conducted at the East 14th Street address in violation of 18 U.S.C. §§ 371 and 1952, and that the two telephones had been, were currently being, and would continue to be used in connection with those offenses. Its order authorized the FBI to operate the pen registers with respect to the two telephones until knowledge of the numbers dialed led to the identity of the associates and confederates of those believed to be conducting the illegal operation or for 20 days, "whichever is earlier."
3
The Company declined to comply fully with the court order. It did inform the FBI of the location of the relevant "appearances," that is, the places where specific telephone lines emerge from the sealed telephone cable. In addition, the Company agreed to identify the relevant "pairs," or the specific pairs of wires that constituted the circuits of the two telephone lines. This information is required to install a pen register. The Company, however, refused to lease lines to the FBI which were needed to install the pen registers in an unobtrusive fashion. Such lines were required by the FBI in order to install the pen registers in inconspicuous locations away from the building containing the telephones. A "leased line" is an unused telephone line which makes an "appearance" in the same terminal box as the telephone line in connection with which it is desired to install a pen register. If the leased line is connected to the subject telephone line, the pen register can then be installed on the leased line at a remote location and be monitored from that point. The Company, instead of providing the leased lines, which it conceded that the court's order required it to do, advised the FBI to string cables from the "subject apartment" to another location where pen registers could be installed. The FBI determined after canvassing the neighborhood of the apartment for four days that there was no location where it could string its own wires and attach the pen registers without alerting the suspects,2 in which event, of course, the gambling operation would cease to function. App. 15-22.
4
On March 30, 1976, the Company moved in the District Court to vacate that portion of the pen register order directing it to furnish facilities and technical assistance to the FBI in connection with the use of the pen registers on the ground that such a directive could be issued only in connection with a wiretap order conforming to the requirements of Title III of the Omnibus Crime Control and Safe Streets Act of 1968, 18 U.S.C. §§ 2510-2520 (1970 ed. and Supp. V). It contended that neither Fed.Rule Crim.Proc. 41 nor the All Writs Act, 28 U.S.C. § 1651(a) provided any basis for such an order. App. 10-14. The District Court ruled that pen registers are not governed by the proscriptions of Title III because they are not devices used to intercept oral communications. It concluded that it had jurisdiction to authorize the installation of the pen registers upon a showing of probable cause and that both the All Writs Act and its inherent powers provided authority for the order directing the Company to assist in the installation of the pen registers.
5
On April 9, 1976, after the District Court and the Court of Appeals denied the Company's motion to stay the pen register order pending appeal, the Company provided the leased lines.3
6
The Court of Appeals affirmed in part and reversed in part, with one judge dissenting on the ground that the order below should have been affirmed in its entirety. Application of United States in re Pen Register Order, 538 F.2d 956 (CA2 1976). It agreed with theDistrict Court that pen registers do not fall within the scope of Title III and are not otherwise prohibited or regulated by statute. The Court of Appeals also concluded that district courts have the power, either inherently or as a logical derivative of Fed.Rule Crim.Proc. 41, to authorize pen register surveillance upon an adequate showing of probable cause. The majority held, however, that the District Court abused its discretion in ordering the Company to assist in the installation and operation of the pen registers. It assumed, arguendo, that "a district court has inherent discretionary authority or discretionary power under the All Writs Act to compel technical assistance by the Telephone Company," but concluded that "in the absence of specific and properly limited Congressional action, it was an abuse of discretion for the District Court to order the Telephone Company to furnish technical assistance." 538 F.2d, at 961.4 The majority expressed concern that "such an order could establish a most undesirable, if not dangerous and unwise, precedent for the authority of federal courts to impress unwilling aid on private third parties" and that "there is no assurance that the court will always be able to protect [third parties] from excessive or overzealous Government activity or compulsion." Id., at 962-963.5
7
We granted the United States' petition for certiorari challenging the Court of Appeals' invalidation of the District Court's order against respondent.6 429 U.S. 1072, 97 S.Ct. 807, 50 L.Ed.2d 789.
II
8
We first reject respondent's contention, which is renewed here, that the District Court lacked authority to order the Company to provide assistance because the use of pen registers may be authorized only in conformity with the procedures set forth in Title III7 for securing judicial authority to intercept wire communications.8 Both the language of the statute and its legislative history establish beyond any doubt that pen registers are not governed by Title III.9
9
Title III is concerned only with orders "authorizing or approving the interception of a wire or oral communication . . . ." 18 U.S.C. § 2518(1) (emphasis added).10 Congress defined "intercept" to mean "the aural acquisition of the contents of any wire or oral communication through the use of any electronic, mechanical, or other device." 18 U.S.C. § 2510(4) (emphasis added). Pen registers do not "intercept" because they do not acquire the "contents" of communications, as that term is defined by 18 U.S.C. § 2510(8).11 Indeed, a law enforcement official could not even determine from the use of a pen register whether a communication existed. These devices do not hear sound. They disclose only the telephone numbers that have been dialed—a means of establishing communication. Neither the purport of any communication between the caller and the recipient of the call, their identities, nor whether the call was even completed is disclosed by pen registers. Furthermore, pen registers do not accomplish the "aural acquisition" of anything. They decode outgoing telephone numbers by responding to changes in electrical voltage caused by the turning of the telephone dial (or the pressing of buttons on pushbutton telephones) and present the information in a form to be interpreted by sight rather than by hearing.12
10
The legislative history confirms that there was no congressional intent to subject pen registers to the requirements of Title III. The Senate Report explained that the definition of "intercept" was designed to exclude pen registers:
11
"Paragraph 4 [of § 2510] defines 'intercept' to include the aural acquisition of the contents of any wire or oral communication by any electronic, mechanical, or other device. Other forms of surveillance are not within the proposed legislation. . . . The proposed legislation is not designed to prevent the tracing of phone calls. The use of a 'pen register,' for example would be permissible. But see United States v. Dote, 371 F.2d 176 (7th 1966). The proposed legislation is intended to protect the privacy of the communication itself and not the means of communication." S.Rep.No.1097, 90th Cong., 2d Sess., 90 (1968).13
12
It is clear that Congress did not view pen registers as posing a threat to privacy of the same dimension as the interception of oral communications and did not intend to impose Title III restrictions upon their use.
III
13
We also agree with the Court of Appeals that the District Court had power to authorize the installation of the pen registers.14 It is undisputed that the order in this case was predicated upon a proper finding of probable cause, and no claim is made that it was in any way inconsistent with the Fourth Amendment. Federal Rule Crim.Proc. 41(b) authorizes the issuance of a warrant to:
14
"search for and seize any (1) property that constitutes evidence of the commission of a criminal offense; or (2) contraband, the fruits of crime, or things otherwise criminally possessed; or (3) property designed or intended for use or which is or has been used as the means of committing a criminal offense."
15
This authorization is broad enough to encompass a "search" designed to ascertain the use which is being made of a telephone suspected of being employed as a means of facilitating a criminal venture and the "seizure" of evidence which the "search" of the telephone produces. Although Rule 41(h) defines property "to include documents, books, papers and any other tangible objects," it does not restrict or purport to exhaustively enumerate all the items which may be seized pursuant to Rule 41.15 Indeed, we recognized inKatz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967), which held that telephone conversations were protected by the Fourth Amendment, that Rule 41 is not limited to tangible items but is sufficiently flexible to include within its scope electronic intrusions authorized upon a finding of probable cause. 389 U.S., at 354-356, and n. 16, 88 S.Ct., at 513.16 See also Osborn v. United States, 385 U.S. 323, 329-331, 87 S.Ct. 429, 433, 17 L.Ed.2d 394 (1966).
16
Our conclusion that Rule 41 authorizes the use of pen registers under appropriate circumstances is supported by Fed.Rule Crim.Proc. 57(b), which provides: "If no procedure is specifically prescribed by rule, the court may proceed in any lawful manner not inconsistent with these rules or with any applicable statute."17 Although we need not and do not decide whether Rule 57(b) by itself would authorize the issuance of pen register orders, it reinforces our conclusion that Rule 41 is sufficiently broad to include seizures of intangible items such as dial impulses recorded by pen registers as well as tangible items.
17
Finally, we could not hold that the District Court lacked any power to authorize the use of pen registers without defying the congressional judgment that the use of pen registers "be permissible." S.Rep.No.1097, supra, at 90. Indeed, it would be anomalous to permit the recording of conversations by means of electronic surveillance while prohibiting the far lesser intrusion accomplished by pen registers. Congress intended no such result. We are unwilling to impose it in the absence of some showing that the issuance of such orders would be inconsistent with Rule 41. Cf. Rule 57(b), supra.18
IV
18
The Court of Appeals held that even though the District Court had ample authority to issue the pen register warrant and even assuming the applicability of the All Writs Act, the order compelling the Company to provide technical assistance constituted an abuse of discretion. Since the Court of Appeals conceded that a compelling case existed for requiring the assistance of the Company and did not point to any fact particular to this case which would warrant a finding of abuse of discretion, we interpret its holding as generally barring district courts from ordering any party to assist in the installation or operation of a pen register. It was apparently concerned that sustaining the District Court's order would authorize courts to compel third parties to render assistance without limitation regardless of the burden involved and pose a severe threat to the autonomy of third parties who for whatever reason prefer not to render such assistance. Consequently the Court of Appeals concluded that courts should not embark upon such a course without specific legislative authorization. We agree that the power of federal courts to impose duties upon third parties is not without limits; unreasonable burdens may not be imposed. We conclude, however, that the order issued here against respondent was clearly authorized by the All Writs Act and was consistent with the intent of Congress.19
The All Writs Act provides:
19
"The Supreme Court and all courts established by Act of Congress may issue all writs necessary or appropriate in aid of their respective jurisdictions and agreeable to the usages and principles of law." 28 U.S.C. § 1651(a).
20
The assistance of the Company was required here to implement a pen register order which we have held the District Court was empowered to issue by Rule 41. This Court has repeatedly recognized the power of a federal court to issue such commands under the All Writs Act as may be necessary or appropriate to effectuate and prevent the frustration of orders it has previously issued in its exercise of jurisdiction otherwise obtained: "This statute has served since its inclusion, in substance, in the original Judiciary Act as a 'legislatively approved source of procedural instruments designed to achieve "the rational ends of law." ' " Harris v. Nelson, 394 U.S. 286, 299, 89 S.Ct. 1082, 1090, 22 L.Ed.2d 281 (1969), quoting Price v. Johnston, 334 U.S. 266, 282, 68 S.Ct. 1049, 1058, 92 L.Ed. 1356 (1948). Indeed, "[u]nless appropriately confined by Congress, a federal court may avail itself of all auxiliary writs as aids in the performance of its duties, when the use of such historic aids is calculated in its sound judgment to achieve the ends of justice entrusted to it." Adams v. United States ex rel. McCann, 317 U.S. 269, 273, 63 S.Ct. 236, 238, 87 L.Ed. 268 (1942).
21
The Court has consistently applied the Act flexibly in conformity with these principles. Although § 262 of the Judicial Code, the predecessor to § 1651, did not expressly authorize courts, as does § 1651, to issue writs "appropriate" to the proper exercise of their jurisdiction but only "necessary" writs, Adams held that these supplemental powers are not limited to those situations where it is "necessary" to issue the writ or order "in the sense that the court could not otherwise physically discharge its appellate duties." 317 U.S., at 273, 63 S.Ct., at 239. In Price v. Johnston, supra, § 262 supplied the authority for a United States Court of Appeals to issue an order commanding that a prisoner be brought before the court for the purpose of arguing his own appeal. Similarly, in order to avoid frustrating the "very purpose" of 28 U.S.C. § 2255, § 1651 furnished the District Court with authority to order that a federal prisoner be produced in court for purposes of a hearing. United States v. Hayman, 342 U.S. 205, 220-222 (1952). The question in Harris v. Nelson, supra, was whether, despite the absence of specific statutory authority, the District Court could issue a discovery order in connection with a habeas corpus proceeding pending before it. Eight Justices agreed that the district courts have power to require discovery when essential to render a habeas corpus proceeding effective. The Court has also held that despite the absence of express statutory authority to do so, the Federal Trade Commission may petition for, and a Court of Appeals may issue, pursuant to § 1651, an order preventing a merger pending hearings before the Commission to avoid impairing or frustrating the Court of Appeals' appellate jurisdiction. FTC v. Dean Foods Co., 384 U.S. 597, 86 S.Ct. 1738, 16 L.Ed.2d 802 (1966).
22
The power conferred by the Act extends, under appropriate circumstances, to persons who, though not parties to the original action or engaged in wrongdoing, are in a position to frustrate the implementation of a court order or the proper administration of justice, Mississippi Valley Barge Line Co. v. United States, 273 F.Supp. 1, 6 (E.D.Mo.1967), summarily aff'd, 389 U.S. 579, 88 S.Ct. 692, 19 L.Ed.2d 779 (1968); Board of Education v. York, 429 F.2d 66 (CA10 1970), cert. denied, 401 U.S. 954, 91 S.Ct. 968, 28 L.Ed.2d 237 (1971), and encompasses even those who have not taken any affirmative action to hinder justice. United States v. McHie, 196 F. 586 (N.D.Ill.1912); United States v. Field, 193 F.2d 92, 95-96 (CA2), cert. denied, 342 U.S. 894, 72 S.Ct. 202, 96 L.Ed. 670 (1951).20
23
Turning to the facts of this case, we do not think that the Company was a third party so far removed from the underlying controversy that its assistance could not be permissibly compelled. A United States District Court found that there was probable cause to believe that the Company's facilities were being employed to facilitate a criminal enterprise on a continuing basis. For the Company, with this knowledge, to refuse to supply the meager assistance required by the FBI in its efforts to put an end to this venture threatened obstruction of an investigation which would determine whether the Company's facilities were being lawfully used. Moreover, it can hardly be contended that the Company, a highly regulated public utility with a duty to serve the public,21 had a substantial interest in not providing assistance. Certainly the use of pen registers is by no means offensive to it. The Company concedes that it regularly employs such devices without court order for the purposes of checking billing operations, detecting fraud, and preventing violations of law.22 It also agreed to supply the FBI with all the information required to install its own pen registers. Nor was the District Court's order in any way burdensome. The order provided that the Company be fully reimbursed at prevailing rates, and compliance with it required minimal effort on the part of the Company and no disruption to its operations.
24
Finally, we note, as the Court of Appeals recognized, that without the Company's assistance there is no conceivable way in which the surveillance authorized by the District Court could have been successfully accomplished.23 The FBI, after an exhaustive search, was unable to find a location where it could install its own pen registers without tipping off the targets of the investigation. The provision of a leased line by the Company was essential to the fulfillment of the purpose—to learn the identities of those connected with the gambling operation—for which the pen register order had been issued.24
25
The order compelling the Company to provide assistance was not only consistent with the Act but also with more recent congressional actions. As established in Part II, supra, Congress clearly intended to permit the use of pen registers by federal law enforcement officials. Without the assistance of the Company in circumstances such as those presented here, however, these devices simply cannot be effectively employed. Moreover, Congress provided in a 1970 amendment to Title III that "[a]n order authorizing the interception of a wire or oral communication shall, upon request of the applicant, direct that a communication common carrier . . . shall furnish the applicant forthwith all information, facilities, and technical assistance necessary to accomplish the interception unobtrusively . . . ." 18 U.S.C. § 2518(4). In light of this direct command to federal courts to compel, upon request, any assistance necessary to accomplish an electronic interception, it would be remarkable if Congress thought it beyond the power of the federal courts to exercise, where required, a discretionary authority to order telephone companies to assist in the installation and operation of pen registers, which accomplish a far lesser invasion of privacy.25 We are convinced that to prohibit the order challenged here would frustrate the clear indication by Congress that the pen register is a permissible law enforcement tool by enabling a public utility to thwart a judicial determination that its use is required to apprehend and prosecute successfully those employing the utility's facilities to conduct a criminal venture. The contrary judgment of the Court of Appeals is accordingly reversed.
26
So ordered.
27
Mr. Justice STEWART, concurring in part and dissenting in part.
28
I agree that the use of pen registers is not governed by the requirements of Title III and that the District Court had authority to issue the order authorizing installation of the pen register, and so joins Parts I, II, and III of the Court's opinion. However, I agree with Mr. Justice STEVENS that the District Court lacked power to order the telephone company to assist the Government in installing Part II of his dissenting opinion.
29
Mr. Justice STEVENS, with whom Mr. Justice BRENNAN and Mr. Justice MARSHALL join, dissenting in part.
30
Today's decision appears to present no radical departure from this Court's prior holdings. It builds upon previous intimations that a federal district court's power to issue a search warrant under Fed.Rule Crim.Proc. 41 is a flexible one, not strictly restrained by statutory authorization, and it applies the same flexible analysis to the All Writs Act, 28 U.S.C. § 1651(a). But for one who thinks of federal courts as courts of limited jurisdiction, the Court's decision is difficult to accept. The principle of limited federal jurisdiction is fundamental; never is it more important than when a federal court purports to authorize and implement the secret invasion of an individual's privacy. Yet that principle was entirely ignored on March 19 and April 2, 1976, when the District Court granted the Government's application for permission to engage in surveillance by means of a pen register, and ordered the respondent to cooperate in the covert operation.
31
Congress has not given the federal district courts the power either to authorize the use of a pen register, or to require private parties to assist in carrying out such surveillance. Those defects cannot be remedied by a patchwork interpretation of Rule 41 which regards the Rule as applicable as a grant of authority, but inapplicable insofar as it limits the exercise of such authority. Nor can they be corrected by reading the All Writs Act as though it gave federal judges the wide-ranging powers of an ombudsman. The Court's decision may be motivated by a belief that Congress would, if the question were presented to it, authorize both the pen register order and the order directed to the Telephone Company.1 But the history and consistent interpretation of the federal court's power to issue search warrants conclusively show that, in these areas, the Court's rush to achieve a logical result must await congressional deliberation. From the beginning of our Nation's history, we have sought to prevent the accretion of arbitrary police powers in the federal courts; that accretion is no less dangerous and unprecedented because the first step appears to be only minimally intrusive.
32
* Beginning with the Act of July 31, 1789, 1 Stat. 29, 43, and concluding with the Omnibus Crime Control and Safe Streets Act of 1968, 82 Stat. 197, 219, 238, Congress has enacted a series of over 35 different statutes granting federal judges the power to issue search warrants of one form or another. These statutes have one characteristic in common: they are specific in their grants of authority and in their inclusion of limitations on either the places to be searched, the objects of the search, or the requirements for the issuance of a warrant.2 This is not a random coincidence; it is a reflection of a concern deeply imbedded in our revolutionary history for the abuses that attend any broad delegation of power to issue search warrants. In the colonial period, the oppressive British practice of allowing courts to issue "general warrants" or "writs of assistance"3 was one of the major catalysts of the struggle for independence.4 After independence, one of the first state constitutions expressly provided that "no warrant ought to be issued but in cases, and with the formalities, prescribed by the laws."5 This same principle motivated the adoption of the Fourth Amendment and the contemporaneous, specific legislation limiting judicial authority to issue search warrants.6
33
It is unnecessary to develop this historical and legislative background at any great length, for even the rough contours make it abundantly clear that federal judges were not intended to have any roving commission to issue search warrants. Quite properly, therefore, the Court today avoids the error committed by the Courts of Appeals which have held that a district court has "inherent power" to authorize the installation of a pen register on a private telephone line.7 Federal courts have no such inherent power.8
34
While the Court's decision eschews the notion of inherent power, its holding that Fed.Rule Crim.Proc. 41 authorizes the District Court's pen register order is equally at odds with the 200-year history of search warrants in this country and ignores the plain meaning and legislative history of the very Rule on which it relies. Under the Court's reading of the Rule, the definition of the term "property" in the Rule places no limits on the objects of a proper search and seizure, but is merely illustrative. Ante, at 169. The Court treats Rule 41 as though it were a general authorization for district courts to issue any warrants not otherwise prohibited. Ante, at 170. This is a startling approach. On its face, the Rule grants no such open-ended authority. Instead, it follows in the steps of the dozens of enactments that preceded it: It limits the nature of the property that may be seized and the circumstances under which a valid warrant may be obtained. The continuing force of these limitations is demonstrated by the congressional actions which compose the Omnibus Crime Control and Safe Streets Act of 1968.
35
In Title III of that Act, Congress legislated comprehensively on the subject of wiretapping and electronic surveillance. Specifically, Congress granted federal judges the power to authorize electronic surveillance under certain carefully defined circumstances. As the Court demonstrates in Part II of its opinion (which I join), the installation of pen register devices is not encompassed within that authority. What the majority opinion fails to point out, however, is that in Title IX of that same Act, Congress enacted another, distinct provision extending the power of federal judges to issue search warrants. That statute, which formed the basis of the 1972 amendment to Rule 41, authorized the issuance of search warrants for an additional class of property, namely, "property that constitutes evidence of a criminal offense in violation of the laws of the United States." 18 U.S.C. § 3103a. In order to understand this provision, it must be remembered that, prior to 1967, "mere evidence" could not be the subject of a constitutionally valid seizure. Gouled v. United States, 255 U.S. 298, 41 S.Ct. 261, 65 L.Ed. 647. In Warden v. Hayden, 387 U.S. 294, 87 S.Ct. 1642, 18 L.Ed.2d 782, this Court removed the constitutional objection to mere-evidence seizures. Title IX was considered necessary because, after Warden v. Hayden, there existed a category of property—mere evidence—which could be the subject of a valid seizure incident to an arrest, but which could not be seized pursuant to a warrant. The reason mere evidence could not be seized pursuant to a warrant was that, as Congress recognized, Rule 41 did not authorize warrants for evidence.9 Title IX was enacted to fill this gap in the law.10
36
Two conclusions follow ineluctably from the congressional enactment of Title IX. First, Rule 41 was never intended to be a general authorization to issue any warrant not otherwise prohibited by the Fourth Amendment. If it had been, Congress would not have perceived a need to enact Title IX, since constitutional law, as it stood in 1968, did not prohibit the issuance of warrants for evidence.11
37
Second, the enactment of Title IX disproves the theory that the definition of "property" in Rule 41(h) is only illustrative. This suggestion was first put forward by the Court in Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576. The issue was not briefed in Katz, but the Court, in dicta, indicated that Rule 41 was not confined to tangible property. Whatever the merits of that suggestion in 1967, it has absolutely no force at this time. In 1968 Congress comprehensively dealt with the issue of electronic searches in Title III. In the same Act, it provided authority for expanding the scope of property covered under Rule 41. But the definition of property in the Rule has never changed. Each item listed is tangible,12 and the final reference to "and any other tangible items" surely must now be read as describing the outer limits of the included category.13 It strains credulity to suggest that Congress, having carefully circumscribed the use of electronic surveillance in Title III, would then, in Title IX, expand judicial authority to issue warrants for the electronic seizure of "intangibles" without the safeguards of Title III.14 In fact, the safeguards contained in Rule 41 make it absurd to suppose that its draftsmen thought they were authorizing any form of electronic surveillance. The paragraphs relating to issuance of the warrant, Rule 41(c), the preparation of an inventory of property in the presence of the person whose property has been taken, Rule 41(d), and the motion for a return of property, Rule 41(e), are almost meaningless if read as relating to electronic surveillance of any kind.
38
To reach its result in this case, the Court has had to overlook the Rule's specific language, its specific safeguards, and its legislative background. This is an extraordinary judicial effort in such a sensitive area, and I can only regard it as most unwise. It may be that a pen register is less intrusive than other forms of electronic surveillance. Congress evidently thought so. See S.Rep.No.1097, 90th Cong., 2d Sess., 90 (1968). But the Court should not try to leap from that assumption to the conclusion that the District Court's order here is covered by Rule 41. As I view this case, it is immaterial whether or not the attachment of a pen register to a private telephone line is a violation of the Fourth Amendment. If, on the one hand, the individual's privacy interest is not constitutionally protected, judicial intervention is both unnecessary and unauthorized. If, on the other hand, the constitutional protection is applicable, the focus of inquiry should not be whether Congress has prohibited the intrusion, but whether Congress has expressly authorized it, and no such authorization can be drawn from Rule 41. On either hypothesis, the order entered by the District Court on March 19, 1976, authorizing the installation of a pen register, was a nullity. It cannot, therefore, support the further order requiring the New York Telephone Company to aid in the installation of the device.
II
39
Even if I were to assume that the pen register order in this case was valid, I could not accept the Court's conclusion that the District Court had the power under the All Writs Act, 28 U.S.C. § 1651(a), to require the New York Telephone Company to assist in its installation. This conclusion is unsupported by the history, the language, or previous judicial interpretations of the Act.
40
The All Writs Act was originally enacted, in part, as § 14 of the Judiciary Act of 1789, 1 Stat. 81.15 The Act was, and is, necessary because federal courts are courts of limited jurisdiction having only those powers expressly granted by Congress,16 and the statute provides these courts with the procedural tools—the various historic common-law writs—necessary for them to exercise their limited jurisdiction.17 The statute does not contain, and has never before been interpreted as containing, the open-ended grant of authority to federal courts that today's decision purports to uncover. Instead, in the language of the statute itself, there are two fundamental limitations on its scope. The purpose of any order authorized by the Act must be to aid the court in the exercise of its jurisdiction;18 and the means selected must be analogous to a common-law writ. The Court's opinion ignores both limitations.
41
The Court starts from the premise that a district court may issue a writ under the Act "to effectuate and prevent the frustration of orders it has previously issued in its exercise of jurisdiction otherwise obtained." Ante, at 172. As stated, this premise is neither objectionable nor remarkable and conforms to the principle that the Act was intended to aid the court in the exercise of its jurisdiction. Clearly, if parties were free to ignore a court judgment or order, the court's ability to perform its duties would be undermined. And the court's power to issue an order requiring a party to carry out the terms of the original judgment is well settled. See Root v. Woolworth, 150 U.S. 401, 410-413, 14 S.Ct. 136, 138, 37 L.Ed. 1123. The courts have also recognized, however, that this power is subject to certain restraints. For instance, the relief granted by the writ may not be "of a different kind" or "on a different principle" from that accorded by the underlying order or judgment. See id., at 411-412, 14 S.Ct., at 138-139.19
42
More significantly, the courts have consistently recognized and applied the limitation that whatever action the court takes must be in aid ofits duties and its jurisdiction.20 The fact that a party may be better able to effectuate its rights or duties if a writ is issued never has been, and under the language of the statute cannot be, a sufficient basis for issuance of the writ. See Sampson v. Murray, 415 U.S. 61, 94 S.Ct. 1028, 39 L.Ed.2d 123; Commercial Security Bank v. Walker Bank & Trust Co., 456 F.2d 1352 (C.A.10, 1972); J. Moore, B. Ward, & J. Lucas, 9 Moore's Federal Practice ¶ 110.29 (1975).
43
Nowhere in the Court's decision or in the decisions of the lower courts is there the slightest indication of why a writ is necessary or appropriate in this case to aid the District Court's jurisdiction. According to the Court, the writ is necessary because the Company's refusal "threatened obstruction of an investigation . . .." Ante, at 174. Concededly, citizen cooperation is always a desired element in any government investigation, and lack of cooperation may thwart such an investigation, even though it is legitimate and judicially sanctioned.21 But unless the Court is of the opinion that the District Court's interest in its jurisdiction was coextensive with the Government's interest in a successful investigation there is simply no basis for concluding that the inability of the Government to achieve the purposes for which it obtained the pen register order in any way detracted from or threatened the District Court's jurisdiction. Plainly, the District Court's jurisdiction does not ride on the Government's shoulders until successful completion of an electronic surveillance.
44
If the All Writs Act confers authority to order persons to aid the Government in the performance of its duties, and is no longer to be confined to orders which must be entered to enable the court to carry out its functions, it provides a sweeping grant of authority entirely without precedent in our Nation's history. Of course, there is precedent for such authority in the common law the writ of assistance. The use of that writ by the judges appointed by King George III was one British practice that the Revolution was specifically intended to terminate. See n. 3, supra. I can understand why the Court today does not seek to support its holding by reference to that writ, but I cannot understand its disregard of the statutory requirement that the writ be "agreeable to the usages and principles of law."
III
45
The order directed against the Company in this case is not particularly offensive. Indeed, the Company probably welcomes its defeat since it will make a normal profit out of compliance with orders of this kind in the future. Nevertheless, the order is deeply troubling as a portent of the powers that future courts may find lurking in the arcane language of Rule 41 and the All Writs Act.
46
I would affirm the judgment of the Court of Appeals.
1
A pen register is a mechanical device that records the numbers dialed on a telephone by monitoring the electrical impulses caused when the dial on the telephone is released. It does not overhear oral communications and does not indicate whether calls are actually completed.
2
The gambling operation was known to employ countersurveillance techniques. App. 21.
3
On the same date another United States District Court judge extended the original order of March 19 for an additional 20 days. Id., at 33.
4
The Court of Appeals recognized that "without [the Company's] technical aid, the order authorizing the use of a pen register will be worthless. Federal law enforcement agents simply cannot implement pen register surveillance without the Telephone Company's help. The assistance requested requires no extraordinary expenditure of time or effort by [the Company]; indeed, as we understand it, providing lease or private lines is a relatively simple, routine procedure." 538 F.2d, at 961-962.
5
Judge Mansfield dissented in part on the ground that the District Court possessed a discretionary power under the All Writs Act to direct the Company to render such assistance as was necessary to implement its valid order authorizing the use of pen registers and that a compelling case had been established for the exercise of discretion in favor of the assistance order. He argued that district court judges could be trusted to exercise their powers under the All Writs Act only in cases of clear necessity and to balance the burden imposed upon the party required to render assistance against the necessity.
6
Although the pen register surveillance had been completed by the time the Court of Appeals issued its decision on July 13, 1976, this fact does not render the case moot, because the controversy here is one "capable of repetition, yet evading review." Southern Pacific Terminal Co. v. ICC, 219 U.S. 498, 515, 31 S.Ct. 279, 283, 55 L.Ed. 310 (1911); Roe v. Wade, 410 U.S. 113, 125, 93 S.Ct. 705, 713, 35 L.Ed.2d 147 (1973). Pen register orders issued pursuant to Fed.Rule Crim.Proc. 41 authorize surveillance only for brief periods. Here, despite expedited action by the Court of Appeals, the order, as extended, expired six days after oral argument. Moreover, even had the pen register order been stayed pending appeal, the mootness problem would have remained, because the showing of probable cause upon which the order authorizing the installation of the pen registers was based would almost certainly have become stale before review could have been completed. It is also plain, given the Company's policy of refusing to render voluntary assistance in installing pen registers and the Government's determination to continue to utilize them, that the Company will be subjected to similar orders in the future. See Weinstein v. Bradford, 423 U.S. 147, 149, 96 S.Ct. 347, 348, 46 L.Ed.2d 350 (1975).
7
The Court of Appeals held that pen register surveillance was subject to the requirements of the Fourth Amendment. This conclusion is not challenged by either party, and we find it unnecessary to consider the matter. The Government concedes that its application for the pen register order did not conform to the requirements of Title III.
8
Although neither this issue nor that of the scope of Fed.Rule Crim.Proc. 41 is encompassed within the question posed in the petition for certiorari and the Company has not filed a cross-petition, we have discretion to consider them because the prevailing party may defend a judgment on any ground which the law and the record permit that would not expand the relief it has been granted. Langnes v. Green, 282 U.S. 531, 538-539, 51 S.Ct. 243, 246, 75 L.Ed. 520 (1931); Dandridge v. Williams, 397 U.S. 471, 475 n. 6, 90 S.Ct. 1153, 1156, 25 L.Ed.2d 491 (1970). The only relief sought by the Company is that granted by the Court of Appeals: the reversal of the District Court's order directing it to assist in the installation and operation of the pen registers. The Title III and Rule 41 questions were considered by both the District Court and the Court of Appeals and fully argued here.
9
Four Justices reached this conclusion in United States v. Giordano, 416 U.S. 505, 553-554, 94 S.Ct. 1820, 1845, 40 L.Ed.2d 341 (1974) (Powell, J., joined by Brennan, C. J., and Blackmun and Rehnquist, JJ., concurring in part and dissenting in part). The Court's opinion did not reach the issue since the evidence derived from a pen register was suppressed as being in turn derived from an illegal wire interception. Every Court of Appeals that has considered the matter has agreed that pen registers are not within the scope of Title III. See United States v. Illinois Bell Tel. Co., 531 F.2d 809 (CA7 1976); United States v. Southwestern Bell Telephone Co., 546 F.2d 243 (CA8 1976); Michigan Bell Telephone Co. v. United States, 565 F.2d 385 (CA6 1977); United States v. Falcone, 505 F.2d 478 (CA3 1974), cert. denied, 420 U.S. 955, 95 S.Ct. 1338, 43 L.Ed.2d 432 (1975); Hodge v. Mountain States Tel. & Tel. Co., 555 F.2d 254 (CA9 1977); United States v. Clegg, 509 F.2d 605, 610 n. 6 (CA5 1975).
10
Similarly, the sanctions of Title III are aimed only at one who "willfully intercepts, endeavors to intercept, or procures any other person to intercept or endeavor to intercept, any wire or oral communication . . . ." 18 U.S.C. § 2511(1)(a).
11
" 'Contents' . . . includes any information concerning the identity of the parties to [the] communication or the existence, substance, purport, or meaning of [the] communication."
12
See 538 F.2d, at 957.
13
United States v. Dote, 371 F.2d 176 (CA7 1966), held that § 605 of the Communications Act of 1934, 47 U.S.C. § 605, which prohibited the interception and divulgence of "any communication" by wire or radio, included pen registers within the scope of its ban. In § 803 of Title III, 82 Stat. 223, Congress amended § 605 by restricting it to the interception of "any radio communication." Thus it is clear that pen registers are no longer within the scope of § 605. See Korman v. United States, 486 F.2d 926, 931-932 (CA7 1973). The reference to Dote in the Senate Report is indicative of Congress' intention not to place restrictions upon their use. We find no merit in the Company's suggestion that the reference to Dote is merely an oblique expression of Congress' desire that telephone companies be permitted to use pen registers in the ordinary course of business, as Dote allowed, so long as they are not used to assist law enforcement. Brief for Respondent 16. The sentences preceding the reference to Dote state unequivocally that pen registers are not within the scope of Title III. In addition, a separate provision of Title III, 18 U.S.C. § 2511(2)(a)(i), specifically excludes all normal telephone company business practices from the prohibitions of the Act. Congress clearly intended to disavow Dote to the extent that it prohibited the use of pen registers by law enforcement authorities.
14
The Courts of Appeals that have considered the question have agreed that pen register orders are authorized by Fed.Rule Crim.Proc. 41 or by an inherent power closely akin to it to issue search warrants under circumstances conforming to the Fourth Amendment. See Michigan Bell Tel. Co., supra; Southwestern Bell Tel. Co., supra; Illinois Bell Tel. Co., supra.
15
Where the definition of a term in Rule 41(h) was intended to be all inclusive, it is introduced by the phrase "to mean" rather than "to include." Cf. Helvering v. Morgan's, Inc., 293 U.S. 121, 125 n. 1, 55 S.Ct. 60, 61, 79 L.Ed. 232 (1934).
16
The question of whether the FBI, in its implementation of the District Court's pen register authorization, complied with all the requirements of Rule 41 is not before us. In Katz, the Court stated that the notice requirement of Rule 41(d) is not so inflexible as to require invariably that notice be given the person "searched" prior to the commencement of the search. 389 U.S., at 355-356, n. 16, 88 S.Ct., at 513. Similarly, it is clear to us that the requirement of Rule 41(c) that the warrant command that the search be conducted within 10 days of its issuance does not mean that the duration of a pen register surveillance may not exceed 10 days. Thus the District Court's order, which authorized surveillance for a 20-day period, did not conflict with Rule 41.
17
See United States v. Baird, 414 F.2d 700, 710 (CA2 1969), cert. denied, 396 U.S. 1005, 90 S.Ct. 559, 24 L.Ed.2d 497 (1970); Jackson v. United States, 122 U.S.App.D.C. 324, 326, 353 F.2d 862, 864 (1965); United States v. Remolif, 227 F.Supp. 420, 423 (Nev.1964); Link v. Wabash R. Co., 370 U.S. 626, 633 n. 8, 82 S.Ct. 1386, 1390, 8 L.Ed.2d 734 (1962) (applying the analogous provision of Fed.Rule Civ.Proc. 83).
18
The dissent argues, post, at 182-184, that Rule 41(b), as modified following Warden v. Hayden, 387 U.S. 294, 87 S.Ct. 1642, 18 L.Ed.2d 782 (1967), to explicitly authorize searches for any property that constitutes evidence of a crime, falls short of authorizing warrants to "search" for and "seize" intangible evidence. The elimination of the restriction against seizing property that is "mere evidence," however, has no bearing whatsoever on the scope of the definition of property set forth in Rule 41(h) which as, the dissent acknowledges, remained unchanged. Moreover, the definition of property set forth in Rule 41(h) is introduced by the phrase, "[t]he term 'property' is used in this rule to include " (emphasis added), which indicates that it was not intended to be exhaustive. See supra, at 169.
We are unable to comprehend the logic supporting the dissent's contention, post, at 184-185, that the conclusion of Katz v. United States that Rule 41 was not confined to tangible property did not survive the enactment of Title III and Title IX of the Omnibus Crime Control and Safe Streets Act of 1968, because Congress failed to expand the definition of property contained in Rule 41(h). There was obviously no need for any such action in light of the Court's construction of the Rule in Katz. The dissent's assertion that it "strains credulity" to conclude that Congress intended to permit the seizure of intangibles outside the scope of Title III without its safeguards disregards the congressional judgment that the use of pen registers be permissible without Title III restrictions. Indeed, the dissent concedes that pen registers are not governed by Title III. What "strains credulity" is the dissent's conclusion, directly contradicted by the legislative history of Title III, that Congress intended to permit the interception of telephone conversations while prohibiting the use of pen registers to obtain much more limited information.
19
The three other Courts of Appeals which have considered the question reached a different conclusion from the Second Circuit. The Sixth Circuit in Michigan Bell Tel. Co. v. United States, 565 F.2d 385 (1977), and the Seventh Circuit in United States v. Illinois Bell Tel. Co., 531 F.2d 809 (1976), held that the Act did authorize the issuance of orders compelling a telephone company to assist in the use of surveillance devices not covered by Title III such as pen registers. The Eighth Circuit found such authority to be part of the inherent power of district courts and "concomitant of the power to authorize pen register surveillance." United States v. Southwestern Bell Tel. Co., 546 F.2d, at 246.
20
See Labette County Comm'rs v. Moulton, 112 U.S. 217, 221, 5 S.Ct. 108, 110, 28 L.Ed. 698 (1884): "[I]t does not follow because the jurisdiction in mandamus [now included in § 1651] is ancillary merely that it cannot be exercised over persons not parties to the judgment sought to be enforced."
21
See 47 U.S.C. § 201(a) and N.Y.Pub.Serv.Law § 91 (McKinney 1955 and Supp. 1977-1978).
22
Tr. of Oral Arg. 27-28, 40.
23
The dissent's attempt to draw a distinction between orders in aid of a court's own duties and jurisdiction and orders designed to better enable a party to effectuate his rights and duties, post, at 189-190, is specious. Courts normally exercise their jurisdiction only in order to protect the legal rights of parties. In Price v. Johnston, 334 U.S. 266, 68 S.Ct. 1049, 92 L.Ed. 1356 (1948), for example, the production of the federal prisoner in court was required in order to enable him to effectively present his appeal which the court had jurisdiction to hear. Similarly, in Harris v. Nelson, 394 U.S. 286, 89 S.Ct. 1082, 22 L.Ed.2d 281 (1969), discovery was ordered in connection with a habeas corpus proceeding for the purpose of enabling a prisoner adequately to protect his rights. Here, we have held that Fed.Rule Crim.Proc. 41 provided the District Court with power to authorize the FBI to install pen registers. The order issued by the District Court compelling the Company to provide technical assistance was required to prevent nullification of the court's warrant and the frustration of the Government's right under the warrant to conduct a pen register surveillance, just as the orders issued in Price and Harris were necessary to protect the rights of prisoners.
24
We are unable to agree with the Company's assertion that "it is extraordinary to expect citizens to directly involve themselves in the law
enforcement process." Tr. of Oral Arg. 41. The conviction that private citizens have a duty to provide assistance to law enforcement officials when it is required is by no means foreign to our traditions, as the Company apparently believes. See Babington v. Yellow Taxi Corp., 250 N.Y. 14, 17, 164 N.E. 726, 727 (1928) (Cardozo, C. J.) ("Still, as in the days of Edward I, the citizenry may be called upon to enforce the justice of the state, not faintly and with lagging steps, but honestly and bravely and with whatever implements and facilities are convenient and at hand"). See also In re Quarles and Butler, 158 U.S. 532, 535, 15 S.Ct. 959, 960, 39 L.Ed. 1080 (1895) ("It is the duty . . . of every citizen, to assist in prosecuting, and in securing the punishment of, any breach of the peace of the United States"); Hamilton v. Regents, 293 U.S. 245, 265 n., 55 S.Ct. 197, 205, 79 L.Ed. 343 (1934) (Cardozo, J., concurring); Elrod v. Moss, 278 F. 123, 129 (CA4 1921). The concept that citizens have a duty to assist in enforcement of the laws is at least in part the predicate of Fed.Rule Crim.Proc. 17, which clearly contemplates power in the district courts to issue subpoenas and subpoenas duces tecum to nonparty witnesses and to hold noncomplying, nonparty witnesses in contempt. Cf. Roviaro v. United States, 353 U.S. 53, 59, 77 S.Ct. 623, 627, 1 L.Ed.2d 639 (1957) ("The [informer's] privilege recognizes the obligation of citizens to communicate their knowledge of the commission of crimes to law-enforcement officials and, by preserving their anonymity, encourages them to perform that obligation"). Of course we do not address the question of whether and to what extent such a general duty may be legally enforced in the diverse contexts in which it may arise.
25
We reject the Court of Appeals' suggestion that the fact that Congress amended Title III to require that communication common carriers provide necessary assistance in connection with electronic surveillance within the scope of Title III reveals a congressional "doubt that the courts possessed inherent power to issue such orders" and therefore "it seems reasonable to conclude that similar authorization should be required in connection with pen register orders . . . ." 538 F.2d at 962. The amendment was passed following the decision of the Ninth Circuit in Application of United States, 427 F.2d 639 (1970), which held that absent specific statutory authority, a United States District Court was without power to compel a telephone company to assist in a wiretap conducted pursuant to Title III. The court refused to infer such authority in light of Congress' silence in a statute which constituted a "comprehensive legislative treatment" of wiretapping. Id., at 643. We think that Congress' prompt action in amending the Act was not an acceptance of the Ninth Circuit's view but "more in the nature of an overruling of that opinion." United States v. Illinois Bell Tel. Co., 531 F.2d, at 813. The meager legislative history of the amendment indicates that Congress was only providing an unequivocal statement of its intent under Title III. See 115 Cong.Rec. 37192 (1969) (remarks of Sen. McClellan). We decline to infer from a congressional grant of authority under these circumstances that such authority was previously lacking. See FTC v. Dean Foods Co., 384 U.S. 597, 608-612, 86 S.Ct. 1738, 1744, 16 L.Ed.2d 802 (1966); Wong Yang Sung v. McGrath, 339 U.S. 33, 47, 70 S.Ct. 445, 452, 94 L.Ed. 616 (1950).
Moreover, even if Congress' action were viewed as indicating acceptance of the Ninth Circuit's view that there was no authority for the issuance of orders compelling telephone companies to provide assistance in connection with wiretaps without an explicit statutory provision, it would not follow that explicit congressional authorization was also needed to order telephone companies to assist in the installation and operation of pen registers which, unlike wiretaps, are not regulated by a comprehensive statutory scheme. In any event, by amending Title III Congress has now required that at the Government's request telephone companies be directed to provide assistance in connection with wire interceptions. It is plainly unlikely that Congress intended at the same time to leave federal courts without authority to require assistance in connection with pen registers.
1
In fact, Congress amended Title III when presented with a similar question. See ante, at 177-178, n. 25.
2
The statutes enacted prior to 1945 are catalogued in the Appendix to Mr. Justice Frankfurter's eloquent dissent in Davis v. United States, 328 U.S. 582, 616-623, 66 S.Ct. 1256, 1272, 90 L.Ed. 1453.
3
These writs authorized the indiscriminate search and seizure of undescribed persons or property based on mere suspicion. See N. Lasson, The History and Development of the Fourth Amendment to the United States Constitution 51-55 (1937). The writs of assistance were viewed as particularly oppressive. They commanded "all officers and subjects of the Crown to assist in their execution," and they were not returnable after execution, but rather served as continuous authority during the lifetime of the reigning sovereign. Id., at 53-54.
4
The importance of the colonial resistance to general writs and writs of assistance in our history has been emphasized in several Supreme Court cases, e. g., Frank v. Maryland, 359 U.S. 360, 363-365, 79 S.Ct. 804, 807, 3 L.Ed.2d 877; Henry v. United States, 361 U.S. 98, 100-101, 80 S.Ct. 168, 170, 4 L.Ed.2d 134; Stanford v. Texas, 379 U.S. 476, 481-485, 85 S.Ct. 506, 509, 13 L.Ed.2d 431, and is set forth in detail in Lasson, supra, and Fraenkel, Concerning Searches and Seizures, 34 Harv.L.Rev. 361 (1921).
5
Article XIV of the Massachusetts Constitution of 1780. The Fourth Amendment was patterned after this provision. See Harris v. United States, 331 U.S. 145, 158, 67 S.Ct. 1098, 1105, 91 L.Ed. 1399 (Frankfurter, J., dissenting).
6
It was not until 1917 that Congress granted the federal courts, as part of the Espionage Act, broad powers to issue search warrants. 40 Stat. 217, 228 (allowing warrants for stolen property, property used in the commission of a felony, and property used to unlawfully aid a foreign government). These provisions of the Espionage Act formed the basis of Rule 41. See Notes of Advisory Committee on Rules, 18 U.S.C.App., p. 4512. It is clear that the Espionage Act did not delegate authority to issue all warrants compatible with the Fourth Amendment. After the Act, Congress continued to enact legislation authorizing search warrants for particular items, and the courts recognized that, if a warrant was not specifically authorized by the Act—or another congressional enactment—it was prohibited. See Colyer v. Skeffington, 265 F. 17, 45 (Mass.1920), rev'd on other grounds, 277 F. 129 (CA1 1922). See also Warden v. Hayden, 387 U.S. 294, 308 n. 12, 87 S.Ct. 1642, 1651, 18 L.Ed.2d 782.
7
See United States v. Southwestern Bell Tel. Co., 546 F.2d 243, 245 (CA8 1976); United States v. Illinois Bell Tel. Co., 531 F.2d 809 (CA7 1976) (semble ).
8
I recognize that there are opinions involving warrantless electronic surveillance which assume that courts have some sort of nonstatutory power to issue search warrants. See United States v. Giordano, 416 U.S. 505, 554, 94 S.Ct. 1820, 1845, 40 L.Ed.2d 341 (Powell, J., concurring); Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576; Osborn v. United States, 385 U.S. 323, 87 S.Ct. 429, 17 L.Ed.2d 394. That assumption was not, however, necessary to the decisions in any of those cases, and Katz may rest on a reading of Fed.Rule Crim.Proc. 41, see discussion, infra, at 184-185. Admittedly, Osborn appears to rely in part on a nonstatutory order to permit a secret recording of a conversation with a lawyer who attempted to bribe a witness. But, as the Court subsequently made clear in United States v. White, 401 U.S. 745, 91 S.Ct. 1122, 28 L.Ed.2d 453, prior judicial authorization was not a necessary element of that case. Moreover, since the court in Osborn was concerned with the integrity of its own procedures, the argument that it possessed an inherent power to authorize a nonstatutory investigation had far greater strength than it has in the context of an ordinary criminal investigation. Cf. American Tobacco Co. v. Werckmeister, 146 F. 375 (CA2 1906), aff'd, 207 U.S. 284, 28 S.Ct. 72, 52 L.Ed. 208 (use of All Writs Act to seize goods in the support of the court's jurisdiction).
9
In the edition of his treatise written after the decision in Warden v. Hayden in 1967 and prior to the 1972 amendment to Rule 41, Professor Wright acutely observed:
"Immediately after the Hayden decision there was an apparent anomaly, since the case held that evidence might be seized, but Rule 41(b) did not authorize issuance of a search warrant for evidence. This would have meant that evidence might be seized where a search may permissibly be made without a warrant, but not in a search under warrant. This would have been wholly inconsistent with the strongly-held notion that, save in a few special classes of cases, a warrant should be a prerequisite to a search, and it would have encouraged police to search without a warrant. Congress, which can move more quickly than the rulemaking apparatus, responded by passage of a statute making it permissible to issue a search warrant for 'property that constitutes evidence of a criminal offense in violation of the laws of the United States.' This supplements, and may well soon swallow up, the other grounds for a search warrant set out in Rule 41(b)." (Footnotes omitted.) 3 C. Wright, Federal Practice and Procedure § 664 (1969).
10
See comments of Senator Allott, who introduced Title IX in the Senate, 114 Cong.Rec. 14790 (1968).
11
Indeed, under the Court's flexible interpretation of Rule 41, the entire series of statutes that belie the "inherent power" concept, was also an exercise in futility because the silence of Congress would not have prohibited any warrant that did not violate the Fourth Amendment. Many of these statutes remain in effect, e. g., 49 U.S.C. § 782 (seizure of certain contraband); 19 U.S.C. § 1595 (customs duties; searches and seizures); and Rule 41(h) expressly provides that Rule 41 "does not modify any act, inconsistent with it, regulating search, seizure and the issuance and execution of search warrants . . . ."
12
Rule 41(h) provides in part:
"The term 'property' is used in this rule to include documents, books, papers and any other tangible objects."
13
The Court acknowledges that the amendment to Rule 41(b) eliminated a "restriction" against the seizure of mere evidence. Ante, at 170-171, n. 18. What the Court refers to as a "restriction" was nothing more than silence—the absence of an express grant of authority. Since the Rule is just as silent on the subject of seizing intangibles as it was on the subject of seizing mere evidence, it is difficult to understand why the Court does not recognize the same "restriction" against such seizures.
14
The Court argues that it "would be anomalous to permit the recording of conversations by means of electronic surveillance while prohibiting the far lesser intrusion accomplished by pen registers." Ante, at 170. But respondent does not claim that Congress has prohibited the use of pen registers. Admittedly there is now no statute either permitting or prohibiting the use of such devices. If that use is a "search" within the meaning of the Fourth Amendment—a question the Court does not decide—there is nothing anomalous about concluding that it is a forbidden activity until Congress has prescribed the safeguards that should accompany any warrant to engage in it. Even if an anomaly does exist, it should be cured by Congress rather than by a loose interpretation of "property" under Rule 41 which may tolerate sophisticated electronic surveillance techniques never considered by Congress and presenting far greater dangers of intrusion than pen registers. See Michigan Bell Tel. Co. v. United States, 565 F.2d 385 (CA6 1977) (indicating the increasing sophistication of surveillance techniques similar to pen registers); cf. United States v. Pretzinger, 542 F.2d 517 (CA9 1976) (use of electronic tracking devices). It is significant that Title III limits the types of criminal investigations for which electronic surveillance may be used; no such limit is expressed in Rule 41 or is implicit in the Court's reasoning today.
15
The statute was also derived from § 13 of the Judiciary Act, which concerned writs of mandamus and prohibition, 1 Stat. 80, and a statute dealing with writs of ne exeat, 1 Stat. 334. The All Writs Act now reads:
"(a) The Supreme Court and all courts established by Act of Congress may issue all writs necessary or appropriate in aid of their respective jurisdictions and agreeable to the usages and principles of law."
16
This proposition was so well settled by 1807 that Mr. Chief Justice Marshall needed no citation to support the following statement:
"As preliminary to any investigation of the merits of this motion, this court deems it proper to declare that it disclaims all jurisdiction not given by the constitution, or by the laws of the United States.
"Courts which originate in the common law possess a jurisdiction which must be regulated by their common law, until some statute shall change their established principles; but courts which are created by written law, and whose jurisdiction is defined by written law, cannot transcend that jurisdiction. It is unnecessary to state the reasoning on which this opinion is founded, because it has been repeatedly given by this court; and with the decisions heretofore rendered on this point, no member of the bench has, even for an instant, been dissatisfied." Ex parte Bollman, 4 Cranch 75, 93, 2 L.Ed. 554.
17
See Harris v. Nelson, 394 U.S. 286, 299.
18
This Court has frequently considered this requirement in the context of orders necessary or appropriate in the exercise of appellate jurisdiction. See J. Moore, B. Ward, & J. Lucas, 9 Moore's Federal Practice &Par; 110.27-110.28 (1975). Here, we are faced with an order that must be necessary or appropriate in the exercise of a district court's original jurisdiction.
19
These restraints are necessary concomitants of the undisputed fact that the All Writs Act does not provide federal courts with an independent grant of jurisdiction. McIntire v. Wood, 7 Cranch 504, 3 L.Ed. 420; Rosenbaum v. Bauer, 120 U.S. 450, 7 S.Ct. 633, 30 L.Ed. 743. The factors mentioned above may be relevant in determining whether the court has ancillary jurisdiction over the dispute. See Dugas v. American Surety Co., 300 U.S. 414, 57 S.Ct. 515, 81 L.Ed. 720; Labette County Comm'rs v. Moulton, 112 U.S. 217, 5 S.Ct. 108, 28 L.Ed. 698; Morrow v. District of Columbia, 135 U.S.App.D.C. 160, 417 F.2d 728 (1969). In this case, the District Court's order was entered against a third party—the Telephone Company. The Court never explains on what basis the District Court had jurisdiction to enter this order. Possibly, the District Court believed that it had ancillary jurisdiction over the controversy, or that the failure of the Company to aid the Government posed a federal question under 28 U.S.C. § 1331. See Board of Education v. York, 429 F.2d 66 (C.A.10 1970), cert. denied, 401 U.S. 954, 91 S.Ct. 968, 28 L.Ed.2d 237. Since I believe that the District Court could not enter its order in any event since it was not in aid of its jurisdiction, I do not find it necessary to reach the question where there was jurisdiction, apart from the All Writs Act, over the "dispute" between the Government and the Telephone Company. However, the Court's failure to indicate the basis of jurisdiction is inexplicable.
20
The Court's failure to explain why the District Court's order was in aid of its jurisdiction is particularly notable when compared to the rationale of the prior Court cases on which it relies. See, e. g., Harris v. Nelson, 394 U.S. 286, 299, 89 S.Ct. 1082, 1090, 22 L.Ed.2d 281 ("the habeas corpus jurisdiction and the duty to exercise it being present, the courts may fashion appropriate modes of procedure . . . . Where their duties require it, this is the inescapable obligation of the courts") (emphasis added); FTC v. Dean Foods Co., 384 U.S. 597, 604, 86 S.Ct. 1738, 1742, 16 L.Ed.2d 802 (injunction issued under All Writs Act upheld because it was necessary "to preserve the status quo while administrative proceedings are in progress and prevent impairment of the effective exercise of appellate jurisdiction ") (emphasis added).
The Court apparently concludes that there is no functional distinction between orders designed to enable a party to effectuate its rights and orders necessary to aid a court in the exercise of its jurisdiction. Ante, at 175 n. 23. The Court reaches this conclusion by pointing out that the orders in cases such as Harris v. Nelson, supra, protected a party's rights. This is, of course, true. Orders in aid of a court's jurisdiction will usually be beneficial to one of the parties before the court. The converse, however, is clearly not true. Not all orders that may enable a party to effectuate its rights aid the court in its exercise of jurisdiction. Compare Sampson v. Murray, 415 U.S. 61, 94 S.Ct. 937, 39 L.Ed.2d 166, with FTC v. Dean Foods Co., supra.
21
A citizen is not, however, free to forcibly prevent the execution of a search warrant. Title 18 U.S.C. § 2231 imposes criminal penalties on any person who "forcibly assaults, resists, opposes, prevents, impedes, intimidates, or interferes with any person authorized to serve or execute search warrants . . . ." This section was originally enacted as part of the Espionage Act of 1917, see n. 6, supra, and is the only statutory provision imposing any duty on the general citizenry to "assist" in the execution of a warrant.
| 01
|
434 U.S. 192
98 S.Ct. 444
54 L.Ed.2d 402
UNITED AIR LINES, INC., Petitioner,v.Harris S. McMANN.
No. 76-906.
Argued Oct. 4, 1977.
Decided Dec. 12, 1977.
Syllabus
The Age Discrimination in Employment Act of 1967, which applies to persons between the ages of 40 and 65, makes it unlawful for an employer to discharge any individual or otherwise discriminate against him with respect to his compensation, terms, conditions, or privileges of employment because of such individual's age. The Act specifies, however, in § 4(f)(2) that it shall not be unlawful for an employer to observe the terms of a bona fide seniority system or any bona fide employee benefit plan such as a retirement, pension, or insurance plan that is not a "subterfuge" to evade the Act's purposes. Petitioner inaugurated a retirement income plan in 1941, which respondent employee voluntarily joined in 1964 after he had signed an application form that showed the normal retirement age for participants in his category as 60 years. After respondent was retired upon reaching that age he brought this suit under the Act, contending that his retirement was solely because of his age and violated the Act. The District Court granted a motion for summary judgment filed by petitioner, which had contended that respondent was retired in compliance with a bona fide retirement plan that he had voluntarily joined. The Court of Appeals reversed. Though it had been conceded that petitioner's plan was bona fide "in the sense that it exists and pays benefits," the court ruled that a pre-age-65 retirement is a "subterfuge" within the meaning of § 4(f)(2) unless the employer can show that the "early retirement provision . . . has some economic or business purpose other than arbitrary age discrimination." Held : Petitioner's retirement plan comes within the § 4(f)(2) exception, in the context of which "subterfuge" must be given its ordinary meaning as a scheme or stratagem to avoid the application of the Act. There is nothing to suggest that Congress intended to invalidate plans that were instituted in good faith before the Act's passage or that it intended to require employers to show a business or economic purpose to justify bona fide plans that antedated enactment of the statute. Pp. 195-203.
542 F.2d 217, 4 Cir., reversed and remanded.
Arnold T. Aikens, Washington, D. C., for petitioner.
Francis G. McBride, Alexandria, Va., for respondent.
Mr. Chief Justice BURGER, delivered the opinion of the Court.
1
The question presented in this case is whether, under the Age Discrimination in Employment Act of 1967, retirement of an employee over his objection and prior to reaching age 65 is permissible under the provisions of a bona fide retirement plan established by the employer in 1941 and joined by the employee in 1964. We granted certiorari to resolve a conflict between the holdings of the Fifth Circuit in Brennan v. Taft Broadcasting Co., 500 F.2d 212 (1974), and the Fourth Circuit now before us. See Zinger v. Blanchette, 549 F.2d 901 (CA3 1977), cert. pending, No. 76-1375.
2
* The operative facts were stipulated by the parties in the District Court and are not controverted here. McMann joined United Air Lines, Inc., in 1944, and continued as an employee until his retirement at age 60 in 1973. Over the years he held various positions with United and at retirement held that of technical specialist-aircraft systems. At the time McMann was first employed, United maintained a formal retirement income plan it had inaugurated in 1941, in which McMann was eligible to participate, but was not compelled to join.1 He voluntarily joined the plan in January 1964. The application form McMann signed showed the normal retirement age for participants in his category as 60 years.
3
McMann reached his 60th birthday on January 23, 1973, and was retired on February 1, 1973, over his objection. He then filed a notice of intent to sue United for violation of the Act pursuant to 29 U.S.C. § 626(d). Although he received an opinion from the Department of Labor that United's plan was bona fide and did not appear to be a subterfuge to evade the purposes of the Act, he brought this suit.
4
McMann's suit in the District Court seeking injunctive relief, reinstatement, and backpay alleged his forced retirement was solely because of his age and was unlawful under the Act. United's response was that McMann was retired in compliance with the provisions of a bona fide retirement plan which he had voluntarily joined. On facts as stipulated, the District Court granted United's motion for summary judgment.
5
In the Court of Appeals it was conceded the plan was bona fide "in the sense that it exists and pays benefits."2 But McMann, supported by a brief amicus curiae filed in that court by the Secretary of Labor, contended that the enforcement of the age-60 retirement provision, even under a bona fide plan instituted in good faith in 1941, was a subterfuge to evade the Act.3
6
The Court of Appeals agreed, holding that a pre-age-65 retirement falls within the meaning of "subterfuge" unless the employer can show that the "early retirement provision . . . ha[s] some economic or business purpose other than arbitrary age discrimination." 542 F.2d 217, 221 (CA4, 1976). The Court of Appeals remanded the case to the District Court to allow United an opportunity to show an economic or business purpose and United sought review here.
7
We reverse.
II
8
Section 2(b) of the Age Discrimination in Employment Act of 1967, 81 Stat. 602, recites that its purpose is
9
"to promote employment of older persons based on their ability rather than age; to prohibit arbitrary age discrimination in employment; to help employers and workers find ways of meeting problems arising from the impact of age on employment." 29 U.S.C. § 621(b).
10
Section 4(a)(1) of the Act, 81 Stat. 603, makes it unlawful for an employer
11
"to discharge any individual or otherwise discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's age . . . ." 29 U.S.C. § 623(a)(1).
12
The Act covers individuals between ages 40 and 65, 29 U.S.C. § 631, but does not prohibit all forced retirements prior to age 65; some are permitted under § 4(f)(2), 81 Stat. 603, which provides:
13
"It shall not be unlawful for an employer . . . or labor organization—to observe the terms of a bona fide seniority system or any bona fide employee benefit plan such as a retirement, pension, or insurance plan, which is not a subterfuge to evade the purposes of this [Act], except that no such employee benefit plan shall excuse the failure to hire any individual . . . ." 29 U.S.C. § 623(f)(2).
14
See infra, at 198-202.
15
McMann argues the term "normal retirement age" is not defined in the plan other than in a provision that "A Participant's Normal Retirement Date is the first day of the month following his 60th birthday." From this he contends normal retirement age does not mean mandatory or compelled retirement at age 60, and United therefore did not retire him "to observe the terms" of the plan as required by § 4(f)(2). As to this claim, however, we accept the analysis of the plan by the Court of Appeals for the Fourth Circuit:
16
"While the meaning of the word 'normal' in this context is not free from doubt, counsel agreed in oral argument on the manner in which the plan is operated in practice. The employee has no discretion whether to continue beyond the 'normal' retirement age. United legally may retain employees such as McMann past age 60, but has never done so: its policy has been to retire all employees at the 'normal' age. Given these facts, we conclude that for purposes of this decision, the plan should be regarded as one requiring retirement at age 60 rather than one permitting it at the option of the employer." 542 F.2d, at 219. (Emphasis supplied.)
17
McMann had filed a grievance challenging his retirement since, as a former pilot, he held a position on the pilots' seniority roster. In that arbitration proceeding he urged that "normal" means "average" and so long as a participant is in good health and fit for duty he should be retained past age 60. The ruling in the arbitration proceeding was that " '[n]ormal' means regular or standard, not average, not only as a matter of linguistics but also in the general context of retirement and pension plans and the settled practice at United." It was also ruled that the involuntary retirement of McMann "was taken in accordance with an established practice uniformly applied to all members of the bargaining unit."
18
Though the District Court made no separate finding as to the meaning of "normal" in this context, it had before it the definition ascribed in the arbitration proceeding and that award was incorporated by reference in the court's findings and conclusions. In light of the facts stipulated by the parties and found by the District Court, we also accept the Court of Appeals' view as to the meaning of "normal."4
19
In Brennan v. Taft Broadcasting Co., 500 F.2d, at 215, the Fifth Circuit held that establishment of a bona fide retirement plan long before enactment of the Act, "eliminat[ed] any notion that it was adopted as a subterfuge for evasion."5 In rejecting the Taft reasoning, the Fourth Circuit emphasized that it distinguished between the Act and the purposes of the Act. The distinction relied on is untenable because the Act is the vehicle by which its purposes are expressed and carried out; it is difficult to conceive of a subterfuge to evade the one which does not also evade the other.
20
McMann argues that § 4(f)(2) was not intended to authorize involuntary retirement before age 65, but was only intended to make it economically feasible for employers to hire older employees by permitting the employers to give such older employees lesser retirement and other benefits than provided for younger employees. We are persuaded that the language of § 4(f)(2) was not intended to have such a limited effect.
21
In Zinger v. Blanchette, 549 F.2d 901 (1977), the Third Circuit had before it both the Taft and McMann decisions. It accepted McMann's distinction between the Act and its purposes, which, in this setting, we do not, but nevertheless concluded:
22
"The primary purpose of the Act is to prevent age discrimination in hiring and discharging workers. There is, however, a clear, measurable difference between outright discharge and retirement, a distinction that cannot be overlooked in analyzing the Act. While discharge without compensation is obviously undesirable, retirement on an adequate pension is generally regarded with favor. A careful examination of the legislative history demonstrates that, while cognizant of the disruptive effect retirement may have on individuals, Congress continued to regard retirement plans favorably and chose therefore to legislate only with respect to discharge." 549 F.2d, at 905. (Emphasis supplied; footnote omitted.) The dissent relies heavily upon the legislative history, which by traditional canons of interpretation is irrelevant to an unambiguous statute. However, in view of the recourse to the legislative history we turn to that aspect to demonstrate the absence of any indication of congressional intent to undermine the countless bona fide retirement plans existing in 1967 when the Act was passed. Such a pervasive impact on bona fide existing plans should not be read into the Act without a clear, unambiguous expression in the statute.
23
When the Senate Subcommittee was considering the bill, the then Secretary of Labor, Willard Wirtz, was asked what effect the Act would have on existing pension plans. His response was:
24
"It would be my judgment . . . that the effect of the provision in 4(f)(2) [of the original bill] . . . is to protect the application of almost all plans which I know anything about. . . . It is intended to protect retirement plans." Hearings on S. 830 before the Subcommittee on Labor of the Senate Committee on Labor and Public Welfare, 90th Cong., 1st Sess., 53 (1967) (hereafter Senate Hearings).6
25
When the present language of § 4(f)(2) was later proposed by amendments, Mr. Wirtz again commented that established pension plans would be protected. Hearings on H.R. 4221 et al. before the General Subcommittee on Labor of the House Committee on Education and Labor, 90th Cong., 1st Sess., 40 (1967).
26
Senator Javits' concern with the administration version of § 4(f)(2), expressed in 1967 when the legislation was being debated, was that it did not appear to give employers flexibility to hire older employees without incurring extraordinary expenses because of their inclusion in existing retirement plans. His concern was not, as inferred by the dissent, that involuntary retirement programs would still be allowed. He said,
27
"The administration bill, which permits involuntary separation under bona fide retirement plans meets only part of the problem. It does not provide any flexibility in the amount of pension benefits payable to older workers depending on their age when hired, and thus may actually encourage employers, faced with the necessity of paying greatly increased premiums, to look for excuses not to hire older workers when they might have hired them under a law granting them a degree of flexibility with respect to such matters.
28
"That flexibility is what we recommend.
29
"We also recommend that the age discrimination law should not be used as the place to fight the pension battle but that we ought to subordinate the importance of adequate pension benefits for older workers in favor of the employment of such older workers and not make the equal treatment under pension plans a condition of that employment." Senate Hearings 27.7
30
In keeping with this objective Senator Javits proposed the amendment, which was incorporated into the 1967 Act, calling for "a fairly broad exemption . . . for bona fide retirement and seniority systems which will facilitate hiring rather than deter it and make it possible for older workers to be employed without the necessity of disrupting those systems." Id., at 28.
31
The true intent behind § 4(f)(2) was not lost on the representatives of organized labor; they viewed it as protecting an employer's right to require pre-65 retirement pursuant to a bona fide retirement plan and objected to it on that basis. The legislative director for the AFL-CIO testified:
32
"We likewise do not see any reason why the legislation should, as is provided in section 4(f)(2) of the Administration bill, permit involuntary retirement of employees under 65. . . . Involuntary retirement could be forced, regardless of the age of the employee, subject only to the limitation that the retirement policy or system in effect may not be merely a subterfuge to evade the Act." Senate Hearings 96.
33
In order to protect workers against involuntary retirement, the AFL-CIO suggested an "Amendment to Eliminate Provision Permitting Involuntary Retirement From the Age Discrimination in Employment Act, and to Substitute Therefor Provision Safeguarding Bona Fide Seniority or Merit Systems," which would have deleted any reference to retirement plans in the exception. Id., at 100. This amendment was rejected.
34
But, as noted in Zinger, 549 F.2d, at 907, the exemption of benefit plans remained in the bill as enacted notwithstanding labor's objection, and the labor proposed exemption for seniority systems was added. There is no basis to view the final version of § 4(f)(2) as an acceptance of labor's request that the benefit-plan provision be deleted; the plain language of the statute shows it is still there, albeit in different terms.
35
Also added to the section when it emerged from the Senate Subcommittee is the language "except that no such employee benefit plan shall excuse the failure to hire any individual." Rather than reading this addendum as a redundancy, as does the dissent, post, at 212, and n. 5, it is clear this is the result of Senator Javits' concern that observance of existing retirement plan terms might discourage hiring of older workers. Supra, at 200. Giving meaning to each of these provisions leads inescapably to the conclusion they were intended to permit observance of the mandatory retirement terms of bona fide retirement plans, but that the existence of such plans could not be used as an excuse not to hire any person because of age.
36
There is no reason to doubt that Secretary Wirtz fully appreciated the difference between the administration and Senate bills. He was aware of Senator Javits' concerns, and knew the Senator sought to amend the original bill to focus on the hiring of older persons notwithstanding the existence of pension plans which they might not economically be permitted to join. See Senate Hearings 40. Senator Javits' view was enacted into law making it possible to employ such older persons without compulsion to include them in pre-existing plans.
37
The dissent misconceives what was said in the Senate debate. The dialogue between Senators Javits and Yarborough, the minority and majority managers of the bill, respectively, is set out below8 and clearly shows awareness of the continued vitality of pre-age-65 retirements.
III
38
In this case, of course, our function is narrowly confined to discerning the meaning of the statutory language; we do not pass on the wisdom of fixed mandatory retirements at a particular age. So limited, we find nothing to indicate Congress intended wholesale invalidation of retirement plans instituted in good faith before its passage, or intended to require employers to bear the burden of showing a business or economic purpose to justify bona fide pre-existing plans as the Fourth Circuit concluded. In ordinary parlance, and in dictionary definitions as well, a subterfuge is a scheme, plan, stratagem, or artifice of evasion. In the context of this statute, "subterfuge" must be given its ordinary meaning and we must assume Congress intended it in that sense. So read, a plan established in 1941, if bona fide, as is conceded here, cannot be a subterfuge to evade an Act passed 26 years later. To spell out an intent in 1941 to evade a statutory requirement not enacted until 1967 attributes, at the very least, a remarkable prescience to the employer. We reject any such per se rule requiring an employer to show an economic or business purpose in order to satisfy the subterfuge language of the Act.9
39
Accordingly, the judgment of the Court of Appeals is reversed and the case is remanded for further proceedings consistent with this opinion.
40
Reversed and remanded.
41
Mr. Justice STEWART, concurring in the judgment.
42
The Age Discrimination in Employment Act of 1967, 29 U.S.C. § 621 et seq., forbids any employer to discharge or otherwise discriminate against any employee between the ages of 40 and 65 because of his age. 29 U.S.C. § 623(a)(1). But the Act also expressly provides that it is not unlawful for an employer to observe the terms of a bona fide employee benefit plan, such as a retirement plan, so long as the plan is not a "subterfuge to evade the purposes" of the Act. § 623(f)(2).
43
It is conceded that United's retirement plan is bona fide. The only issue, then, is whether it is a "subterfuge to evade the purposes" of the Act. I think it is simply not possible for a bona fide retirement plan adopted long before the Act was even contemplated to be a "subterfuge" to "evade" either its terms or its purposes.
44
Since § 623(f)(2) on its face makes United's action under the retirement plan lawful, it is unnecessary to address any of the other questions discussed in the Court's opinion or by Mr. Justice WHITE.
45
Mr. Justice WHITE, concurring in the judgment.
46
* While I agree with the Court and with Mr. Justice STEWART that McMann's forced retirement at age 60 pursuant to United's retirement income plan does not violate the Age Discrimination in Employment Act of 1967, 29 U.S.C. § 621 et seq., I disagree with the proposition that this bona fide plan necessarily is made lawful under § 4(f)(2) of the Act, 29 U.S.C. § 623(f)(2), merely because it was adopted long before the Act's passage. Even conceding that the retirement plan could not have been a subterfuge to evade the purposes of the Act when it was adopted by United in 1941, I believe that the decision by United to continue the mandatory aspects of the plan after the Act became effective in 1968 must be separately examined to determine whether it is proscribed by the Act.
47
The legislative history indicates that the exception contained within § 4(f)(2) "applies to new and existing employee benefit plans, and to both the establishment and maintenance of such plans." H.R.Rep.No.805, 90th Cong., 1st Sess., 4 (1967) (emphasis supplied); S.Rep.No.723, 90th Cong., 1st Sess., 4 (1967) (emphasis supplied), U.S.Code Cong. & Admin.News 1967, p. 2217. This statement in both the House and Senate Reports demonstrates that there is no magic in the fact that United's retirement plan was adopted prior to the Act, for not only the plan's establishment but also its maintenance must be scrutinized. For that reason, unless United was legally bound to continue the mandatory retirement aspect of its plan, its decision to continue to require employees to retire at age 60 after the Act became effective must be viewed in the same light as a post-Act decision to adopt such a plan.
48
No one has suggested in this case that United did not have the legal option of altering its plan to allow employees who desired to continue working beyond age 60 to do so; at the most it has been concluded that United simply elected to apply its retirement policy uniformly. See ante, at 196. Because United chose to continue its mandatory retirement policy beyond the effective date of the Act, I would not terminate the inquiry with the observation that the plan was adopted long before Congress considered the age discrimination Act but rather would proceed to what I consider to be the crucial question: Does the Act prohibit the mandatory retirement pursuant to a bona fide retirement plan of an employee before he reaches age 65? My reading of the legislative history, set out in Part II of the Court's opinion, convinces me that it does not.
II
49
As the opinion of the Court demonstrates, Congress in passing the Act did not intend to make involuntary retirements unlawful. In recommending the legislation to Congress, President Johnson specifically suggested an exception for those "special situations . . . where the employee is separated under a regular retirement system." 113 Cong.Rec. 1089-1090 (1967).1 Pursuant to this recommendation, the House and Senate bills that were referred to committee expressly excepted involuntary retirements from the Act's prohibition,2 an exception which, with only slight changes, remained in the final version enacted by Congress. As the Court correctly concludes, the changes that were made in § 4(f)(2) were intended, not to eliminate the protection for retirement plans, but rather to meet the additional concern expressed by Senator Javits concerning the applicability of retirement plans to older workers who are hired. While the discussion in Congress concerning the language change was not extensive, it indicated that the change was intended to broaden the exception for retirement plans. I thus find unacceptable the dissent's view that Congress acceded to labor's suggestion that the protection for involuntary retirement be eliminated.
III
50
In this case, the Fourth Circuit recognized the fact that United's retirement plan is "bona fide" in the sense that it provides McMann with substantial benefits. The court, however, viewed as separate and additional the requirement that the plan not be a subterfuge to evade the purposes of the Act. I find no support in the legislative history for the interpretation of that language as requiring "some economic or business purpose." 542 F.2d 217, 221 (CA4 1976). Rather, as I read the history, Congress intended to exempt from the Act's prohibition all retirement plans even those whose only purpose is to terminate the services of older workers—as long as the benefits they pay are not so unreasonably small as to make the "retirements" nothing short of discharges.
51
What little discussion there was in Congress concerning the meaning of the § 4(f)(2) exception indicates that the no-subterfuge requirement was merely a restatement of the requirement that the plan be bona fide. See 113 Cong.Rec. 31255 (1967). It is significant that the subterfuge language was contained in the original administration bill, for that version was recognized as being "intended to protect retirement plans." See ante, at 199. Because all retirement plans necessarily make distinctions based on age, I fail to see how the subterfuge language, which was included in the original version of the bill and was carried all the way through, could have been intended to impose a requirement which almost no retirement plan could meet. For that reason I would interpret the § 4(f)(2) exception as protecting actions taken pursuant to a retirement plan which is designed to pay substantial benefits.
52
Because the Court relies exclusively upon the adoption date of United's retirement plan as a basis for concluding that McMann's forced retirement was not unlawful, I cannot join its opinion. Instead, I would adopt the approach taken by the Third Circuit in Zinger v. Blanchette, 549 F.2d 901 (1977), cert. pending, No. 76-1375, and would hold that his retirement was valid under the Act, not because the retirement plan was adopted by United prior to the Act's passage, but because the Act does not prohibit involuntary retirements pursuant to bona fide plans.
53
Mr. Justice MARSHALL, with whom Mr. Justice BRENNAN joins, dissenting.
54
Today the Court, in its first encounter with the Age Discrimination in Employment Act of 1967, 81 Stat. 602, 29 U.S.C. § 621 et seq., sharply limits the reach of that important law. In apparent disregard of settled principles of statutory construction, it gives an unduly narrow interpretation to a congressional enactment designed to remedy arbitrary discrimination in the workplace. Because I believe that the Court misinterprets the Act, I respectfully dissent.
55
But for § 4(f)(2) of the Act, 29 U.S.C. § 623(f)(2), petitioner's decision to discharge respondent because he reached the age of 60 would violate § 4(a)(1), 29 U.S.C. § 623(a)(1). This latter section makes it unlawful for an employer "to fail or refuse to hire or to discharge any individual or otherwise discriminate against any individual [between 40 and 65] with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's age."
56
The language used in § 4(a)(1) tracks the language of § 703(a)(1) of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-2(a)(1).1 This section has been interpreted as forbidding involuntary retirement when improper criteria, such as race or sex, are used in selecting those to be retired. With reference to the statutory language, courts have reasoned that forced retirement is "tantamount to a discharge," Bartmess v. Drewrys U. S. A., Inc., 444 F.2d 1186, 1189 (CA7), cert. denied, 404 U.S. 939, 92 S.Ct. 274, 30 L.Ed.2d 252 (1971) or that the employer requiring retirement is "discriminat[ing] against" the retired employee "with respect to . . . [a] condition . . . of employment," see Peters v. Missouri-Pacific R. Co., 483 F.2d 490, 492 n. 3 (CA5), cert. denied, 414 U.S. 1002, 94 S.Ct. 356, 38 L.Ed.2d 238 (1973); Rosen v. Public Service Electric & Gas Co., 477 F.2d 90, 94-95 (CA3 1973); Bartmess v. Drewrys v. U. S. A., Inc., supra, 444 F.2d at 1188-1189.2
57
Given these constructions of § 703(a)(1) of the Civil Rights Act and the absence of any indication that Congress intended § 4(a)(1) of the Age Discrimination in Employment Act to be interpreted differently, I would construe the identical language of the two statutes in an identical manner. The question that remains is whether § 4(f)(2) sanctions this otherwise unlawful act. That section provides:
58
"It shall not be unlawful for an employer . . . to observe the terms of a bona fide seniority system or any bona fide employee benefit plan such as a retirement, pension, or insurance plan, which is not a subterfuge to evade the purposes of [the Act] . . . ."
59
The opinion of the Court assumes that his language is clear on its face. Ante, at 199. I cannot agree with this premise. In my view, the statutory language is susceptible of at least two interpretations, and the only reading consonant with congressional intent would preclude involuntary retirement of employees covered by the Act.
60
On this latter reading, § 4(f)(2) allows different treatment of older employees only with respect to the benefits paid or available under certain employee benefit plans, including pension and retirement plans.3 Alternatively, the section may be read, as the Court has read it, also to permit involuntary retirement of older employees prior to age 65 pursuant to a pension or retirement benefit plan. Ante, at 198. The critical question, then, is whether the phrase "employee benefit plan," as used by Congress here to include a "retirement, pension or insurance plan," encompasses only the rules defining what benefits retirees receive, or whether it also encompasses rules mandating retirement at a particular age.
61
We need not decide on a strictly grammatical basis which reading is preferable. We are judges, not linguists, and our task is to divine congressional intent, using all available evidence. "[W]ords are inexact tools at best, and for that reason there is wisely no rule of law forbidding resort to explanatory legislative history no matter how 'clear the words may appear on "superficial examination." ' " Harrison v. Northern Trust Co., 317 U.S. 476, 479, 63 S.Ct. 361, 363, 87 L.Ed. 407 (1943), quoting United States v. American Trucking Assns., 310 U.S. 534, 544, 60 S.Ct. 1059, 1064, 84 L.Ed. 1345 (1940). See Train v. Colorado Public Interest Research Group, 426 U.S. 1, 10, 96 S.Ct. 1938, 1942, 48 L.Ed.2d 434 (1976).
62
The Court's analysis of the legislative history establishes that the primary purpose of the Act was to facilitate the hiring of older workers. I have no quarrel with that proposition. Understanding this primary purpose, however, aids not at all in determining whether Congress also intended to prohibit forced retirement of those already employed. The Court's analysis of the legislative history on this issue, ante, at 199-202, on which Mr. Justice WHITE relies, ante, at 206, is unpersuasive, since it relies primarily on references to an exception that was not enacted.
63
There can be no question, that had Congress enacted § 4(f)(2) in the form in which it was proposed by the administration, forced retirement would be permissible. That section of the initial bill quite specifically allowed such retirement. It provided:
64
"It shall not be unlawful for an employer . . . to separate involuntarily an employee under a retirement policy or system where such policy or system is not merely a subterfuge to evade the purposes of this Act . . . ." S. 830 and H.R. 4221, § 4(f)(2), 90th Cong., 1st Sess (1967).
65
Thus the remarks of Secretary Wirtz, Senator Javits, and the representative of the AFL-CIO on which the Court relies, see ante, at 199-201, quite properly reflect that the bill as it then existed would have authorized involuntary retirement. But the present benefit-plan exception to the § 4(a) prohibition on age discrimination differs significantly from that contained in the original bill. The specific authorization for involuntary retirement was deleted. That this deletion was made may of itself suggest that Congress concluded such an exception was unwise; a review of the legislative history strongly supports this view.
66
Two sets of objections were made to the bill during the Senate and House hearings.4 Many persons, including members of the Committees, expressed concern that the bill did "not provide any flexibility in the amount of pension benefits payable to older workers depending on their age when hired, and thus may actually encourage employers, faced with the necessity of paying greatly increased premiums, to look for excuses not to hire older workers when they might have hired them under a law granting them a degree of flexibility with respect to such matters." Statement of Sen. Javits, Senate Hearings 27; see also, e. g., House Hearings 62-63 (statement of Labor Counsel, Chamber of Commerce of the United States). Representatives of organized labor voiced totally different objections to the initial version of § 4(f)(2); they argued against permitting any involuntary retirement based on age for those within the coverage of the bill, whether or not pursuant to a bona fide plan. Senate Hearings 98; House Hearings supra, n. 4, at 413. In addition, they suggested that bona fide seniority systems should receive express protection under § 4(f).
67
After the hearings, the House and Senate Committees changed the exemption section to its present form. By adding to § 4(f)(2) a provision permitting observance of bona fide seniority systems, Congress acceded to organized labor's concern that seniority systems not be abrogated. The addition of language permitting observance of the terms of a benefit plan was plainly responsive to the numerous criticisms that the bill would deter employment of older workers.5 But the third change that was made—the deletion of the specific language permitting involuntary retirement—was not responsive to either of those criticisms, since deletion of that language could have no effect on the hiring of older workers or on seniority systems. A reasonable inference to be drawn from the deletion, therefore, is that Congress was responding to labor's other objection by removing the authorization for involuntary retirement from the exceptions to the statute's prohibitions. While, as the Court notes, ante, at 201, the specific language proposed by labor was not adopted, the Court offers no alternative explanation for the deletion of the explicit authorization for involuntary retirement.6
68
In contrast to the hearings on the original version of the § 4(f)(2) exception, where there are repeated references to the fact that the bill permitted involuntary retirement, there are no similar statements in the Committee Reports or in the House and Senate debates with respect to the amended version of § 4(f)(2). For example, the House and Senate Committee Reports explain the purpose and effect of § 4(f)(2) as follows:
69
"This exception serves to emphasize the primary purpose of the bill—hiring of older workers—by permitting employment without necessarily including such workers in employee benefit plans. The specific exception was an amendment to the original bill, is considered vita[l] to the legislation, and was favorably received by witnesses at the hearings." H.R.Rep.No. 805, 90th Cong., 1st Sess., 4 (1967).
70
See S.Rep.No. 723, 90th Cong., 1st Sess., 4 (1967),7 U.S.Code Cong. & Admin.News 1967, p. 2217. Nowhere did the Committees suggest that the exemption permitted involuntary retirements. Indeed, their emphasis on encouraging the employment of older workers by allowing employers to make distinctions based on age in the provision of certain ancillary employment benefits, fully accords with the view that § 4(f)(2) was intended only to permit those variations. Moreover, when the sponsors of the legislation explained the bill to the House and Senate during the debates preceding its passage, they made no mention of the possibility that § 4(f)(2) permitted involuntary retirement and discussed it in terms incompatible with any such interpretation.8 The following exchange between Senator Javits, the minority floor manager of the bill and Senator Yarborough, the majority floor manager, is illustrative:
71
"Mr. JAVITS. The meaning of this provision is as follows: An employer will not be compelled under this section to afford to older workers exactly the same pension, retirement, or insurance benefits as he affords to younger workers. If the older worker chooses to waive all of those provisions, then the older worker can obtain the benefits of this act, but the older worker cannot compel an employer through the use of this act to undertake some special relationship, course, or other condition with respect to a retirement, pension, or insurance plan which is not merely a subterfuge to evade the purposes of the act— and we understand that—in order to give that older employee employment on the same terms as others.
72
"I would like to ask the manager of the bill whether he agrees with that interpretation, because I think it is very necessary to make its meaning clear to both employers and employees. . . .
73
"Mr. YARBOROUGH. I wish to say to the Senator that that is basically my understanding of the provision in line 22, page 20 of the bill, clause 2, subsection (f) of section 4, when it refers to retirement, pension, or insurance plan, it means that a man who would not have been employed except for this law does not have to receive the benefits of the plan. Say an applicant for employment is 55, comes in and seeks employment, and the company has bargained for a plan with its labor union that provides that certain moneys will be put up for a pension plan for anyone who worked for the employer for 20 years so that a 55-year-old employee would not be employed past 10 years. This means he cannot be denied employment because he is 55, but he will not be able to participate in that pension plan because unlike a man hired at 44, he has no chance to earn 20 years retirement. In other words, this will not disrupt the bargained-for pension plan. This will not deny an individual employment or prospective employment but will limit his rights to obtain full consideration in the pension, retirement, or insurance plan.
74
"Mr. JAVITS. I thank my colleague. That is important to business people." 113 Cong.Rec. 31255 (1967) (emphasis added).9
75
The statements of those who criticized the bill for not going far enough lend still further support to the interpretation of the Act that would preclude forced retirement of persons covered by the Act. Senator Young spoke eloquently against subjecting those aged 65 or older to "[c]ompulsory retirement programs" which, he proclaimed, "have forged an iron collar" for those Americans "ready, willing and able" to work past 65. Id., at 31256. Senator Young never alluded to the possibility that compulsory retirement of those under 65 and thus covered by the Act would be permitted, since the unmistakable premise of his argument was that, under the law being considered, compulsory retirement of covered employees was prohibited. Ibid. Others criticized § 4(f)(2) because it authorized employers to deny older employees various benefits in accordance with benefit plans, but again made no reference to the possibility of forced retirement of covered employees. 113 Cong.Rec., at 34745 (remarks of Rep. Smith); id., at 34750 (remarks of Rep. Randall). In view of the tenor and substance of those objections to the Act, it is inconceivable that these Congressmen would have remained silent had they understood § 4(f)(2) to allow involuntary retirement before the age of 65.10
76
Any doubt as to the correctness of reading the Act to prohibit forced retirement is dispelled by considering the anomaly that results from the Court's contrary interpretation. Under §§ 4(a) and 4(f)(2), see n. 5, supra, it is unlawful for an employer to refuse to hire a job applicant under the age of 65 because of his age. If, as the Court holds, involuntary retirement before age 65 is permissible under § 4(f)(2), the individual so retired has a simple route to regain his job: He need only reapply for the vacancy created by his retirement. As a new applicant, the individual plainly cannot be denied the job because of his age. And as someone with experience in performing the tasks of the "vacant" job he once held, the individual likely will be better qualified than any other applicant. Thus the individual retired one day would have to be hired the next. We should be loathe to attribute to Congress an intention to produce such a bizarre result.
77
One final reason exists for rejecting the Court's broad interpretation of the Act's exemption. The Age Discrimination in Employment Act is a remedial statute designed, in the Act's own words, "to promote employment of older persons based on their ability rather than age; to prohibit arbitrary age discrimination in employment; [and] to help employers and workers find ways of meeting problems arising from the impact of age on employment." § 2(b), 29 U.S.C. § 621(b). It is well settled that such legislation 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, 76 L.Ed. 1115 (1932). See also, e. g., Phillips Co. v. Walling, 324 U.S. 490, 493, 65 S.Ct. 807, 808, 89 L.Ed. 1095 (1945). To construe the § 4(f)(2) exemption broadly to authorize involuntary retirement when no statement in the Committee Reports or by the Act's floor managers or sponsors in the debates supports that interpretation flouts this fundamental principle of construction.
78
The mischief the Court fashions today may be short lived. Both the House and Senate have passed amendments to the Act. 123 Cong.Rec. H9984-9985 (daily ed. Sept. 23, 1977); id., at S17303 (daily ed. Oct. 19, 1977). The amendments to § 4(f)(2) expressly provide that the involuntary retirement of employees shall not be permitted or required pursuant to any employee benefit plan. Thus, today's decision may have virtually no prospective effect.11 But the Committee Reports of both Houses make plain that, properly understood, the existing Act already prohibits involuntary retirement, and that the amendment is only a clarification necessitated by court decisions misconstruing congressional intent. H.R.Rep. No. 95-527, pp. 5-6 (1977); id., at 27 (additional views of Rep. Weiss, quoting statement of Sen. Javits); [i]S.Rep. No. 95-493, pp. 9-10 (1977).12 Because the Court today has also misconstrued congressional intent and has thereby deprived many older workers of the protection which Congress sought to afford, I must dissent.13
1
The plan paid retirement benefits pursuant to a group annuity contract between United and two life insurance companies.
2
The same concession was made in this Court.
3
No brief amicus was filed on behalf of the Department of Labor in this Court, but after submission of the case following oral argument the Solicitor General wrote a letter to the Clerk of this Court stating that the Government agreed with the Fourth Circuit and was prepared to file a brief amicus within three weeks. The Rules of this Court do not allow the filing of briefs amicus after oral argument. See Rule 42. No motion for leave to file a brief amicus was filed.
4
We note, too, that the Department of Labor's interpretation of § 4(f)(2), issued nearly contemporaneously with the effective date of the Act, was that the meaning did not turn on whether or not all employees under a plan are required to retire at the same age.
"The fact that an employer may decide to permit certain employees to continue working beyond the age stipulated in the formal retirement program does not, in and of itself, render an otherwise bona fide plan invalid, insofar as the exception provided in Section 4(f)(2) is concerned." 29 CFR § 860.110(a) (1976).
The Department's more recent position on the section is that pre-65 retirements "are unlawful unless the mandatory retirement provision . . . is required by the terms of the plan and is not optional . . . ." U. S. Department of Labor, Annual Report on Age Discrimination in Employment Act of 1967, p. 17 (1975). Having concluded, as did the Court of Appeals, that the United plan calls for mandatory retirement at age 60, however, we need not consider this further.
5
Similarly, in De Loraine v. MEBA Pension Trust, 499 F.2d 49 (CA2), cert. denied, 419 U.S. 1009, 95 S.Ct. 329, 42 L.Ed.2d 284 (1974), the court said a bona fide pension plan established in 1955 was not a subterfuge. That case did not properly present the question of whether the Act forbade involuntary retirement before age 65 and the court did not purport to decide it. 499 F.2d at 51 n. 7. Steiner v. National League of Professional Baseball Clubs, 377 F.Supp. 945, 948 (C.D.Cal.1974), aff'd No. 74-2604 (CA9, Oct. 15, 1975), likewise rejected the idea that a pension plan established long before the Act could be a subterfuge saying: "Obviously it could not have been evolved in an attempt to circumvent any public policy or law."
6
Section 4(f)(2) of the original administration bill provided: "It shall not be unlawful for an employer . . . to separate involuntarily an employee under a retirement policy or system where such policy or system is not merely a subterfuge to evade the purposes of this Act . . . ."
7
Legislative observations 10 years after passage of the Act are in no sense part of the legislative history. See post, at 218.
8
"Mr. YARBOROUGH. I wish to say to the Senator that that is basically my understanding of the provision in line 22, page 20 of the bill, clause 2, subsection (f) of section 4, when it refers to retirement, pension, or insurance plan, it means that a man who would not have been employed except for this law does not have to receive the benefits of the plan. Say an applicant for employment is 55, comes in and seeks employment, and the company has bargained for a plan with its labor union that provides that certain moneys will be put up for a pension plan for anyone who worked for the employer for 20 years so that a 55-year-old employee would not be employed past 10 years. This means he cannot be denied employment because he is 55, but he will not be able to participate in that pension plan because unlike a man hired at 44, he has no chance to earn 20 years retirement. In other words, this will not disrupt the bargained-for pension plan. This will not deny an individual employment or prospective employment, but will limit his rights to obtain full consideration in the pension, retirement, or insurance plan.
"Mr. JAVITS. I thank my colleague. That is important to business people." 113 Cong.Rec. 31255 (1967).
9
Reference is made by the dissent, post, at 219 n. 13, to a recital on § 4(f)(2) in the House Report. The House Report states: "[Section 4(f)(2)] applies to new and existing employee benefit plans, and to both the establishment and maintenance of such plans. This exception serves to emphasize the primary purpose of the bill—hiring of older workers—by permitting employment without necessarily including such workers in employee benefit plans. The specific exception was an amendment to the original bill, is considered vita[l] to the legislation, and was favorably received by witnesses at the hearings." H.R.Rep.No.805, 90th Cong., 1st Sess., 4 (1967), U.S.Code Cong. & Admin.News 1967, pp. 2213, 2217. (Emphasis supplied.)
The italicized portion shows quite clearly that the primary purpose of the bill was the hiring of older workers. A quite different question would be presented if a pre-existing bona fide plan were used as a reason for refusing to hire an older applicant for employment.
1
Other exceptions recommended by the President, which were included within the final version of the Act, covered "special situations where age is a reasonable occupational qualification, [and] where an employee is discharged for good cause . . . ." 113 Cong.Rec. 1089-1090 (1967).
2
S. 830, 90th Cong., 1st Sess. (1967); H.R. 4221, 90th Cong., 1st Sess. (1967).
1
Section 703(a)(1) provides that it is unlawful for an employer "to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, or national origin."
2
Courts have also suggested that involuntary retirement of an employee on a discriminatory basis might violate § 703(a)(2) of the Civil Rights Act of 1964, which proscribes classification by an employer of an employee in a way which would "adversely affect his status as an employee," 42 U.S.C. § 2000e-2(a)(2). Bartmess v. Drewrys U. S. A., Inc., 444 F.2d, at 1189; Peters v. Missouri-Pacific R. Co., 483 F.2d, at 495. Section 4(a)(2) of the Age Discrimination in Employment Act, 29 U.S.C. § 623(a)(2), includes an identical prohibition.
3
This reading is illustrated by Senator Yarborough's example of the effect of § 4(f)(2):
"Say an applicant for employment is 55, comes in and seeks employment, and the company has bargained for a plan with its labor union that provides that certain moneys will be put up for a pension plan for anyone who worked for the employer for 20 years so that a 55-year-old employee would not be employed past 10 years. This means he cannot be denied employment because he is 55, but he will not be able to participate in that pension plan because unlike a man hired at 44, he has no chance to earn 20 years retirement. In other words, this will not disrupt the bargained-for pension plan. This will not deny an individual employment or prospective employment but will limit his rights to obtain full consideration in the pension, retirement, or insurance plan." 113 Cong.Rec. 31255 (1967).
4
Hearings on S. 830 et al. before the Subcommittee on Labor of the Senate Committee on Labor and Public Welfare, 90th Cong., 1st Sess. (1967) (hereafter Senate Hearings); Hearings on H.R. 4221 et al. before the General Subcommittee on Labor of the House Committee on Education and Labor, 90th Cong., 1st Sess. (1967) (hereafter House Hearings).
5
The Committees' concern that the Act not deter employers from hiring older employees is also reflected in the amendment to the section providing that "no such employee benefit plan shall excuse the failure to hire any individual." § 4(f)(2), 29 U.S.C. § 623(f)(2).
6
The Committees were certainly aware that Congress could retain the provision specifically authorizing involuntary retirement and add to it a provision permitting variation in the coverage of insurance and benefit plans. Many of the state statutes at which the Committees looked employed that approach. Senate Hearings 298-315; House Hearings 501-518 (e. g., Connecticut, Indiana, Maine, Pennsylvania). That they deleted the specific authorization rather than follow the model of those state statutes is not without significance.
7
The Senate Committee Report's description, although otherwise identical, did not include the statement that the amendment was considered vital. Supra, this page.
8
During the hearings, Senator Javits indicated that the administration bill might raise problems concerning existing pension plans. He stated that the involuntary retirement provision did not adequately address whether variations in benefits based on age would be permitted. Senate Hearings 27. Although, as the Court notes, he offered no objection during the hearings to the provision allowing involuntary retirement, it is significant that at no point in his statements on the floor of the Senate did he even hint that the bill as revised permitted involuntary retirement. Since Senator Javits had expressly acknowledged the permissibility of involuntary retirement under the administration's bill at the hearings, in explaining at length the meaning of § 4(f)(2) as revised by the Committee he would surely have adverted to involuntary retirement if it were still allowed.
9
The Court somehow finds that the above dialogue indicates approval by Senators Yarborough and Javits of mandatory retirement before age 65. Ante, at 202. I see nothing in this dialogue to suggest that the Senators thought involuntary retirement before age 65 was permissible.
10
In contrast to this history which demonstrates forcefully that § 4(f)(2) was not intended to provide for involuntary retirement, there are only two pieces of legislative history that provide even a modicum of support for the Court's interpretation. First, when he testified during the hearings on the House bill which then specifically permitted involuntary retirement, Secretary Wirtz was asked about the effect of the Senate Committee's modification of § 4(f)(2). He responded that "[w]e count that change as not going to the substance and involving matters going to clarification which would present no problem." House Hearings 40. Since no exemption for benefit plans had been provided in the original bill, it is difficult to understand how Secretary Wirtz could reasonably have called the change only a "clarification." In any event, his statement at the hearings is entitled to far less weight than the Committee Reports and the statements by the floor managers and sponsors of the Act. See Maintenance Employes v. United States, 366 U.S. 169, 176-177, 81 S.Ct. 913, 916-917, 6 L.Ed.2d 206 (1961); Leedom v. Mine, Mill, & Smelter Workers, 352 U.S. 145, 149-150, 77 S.Ct. 154, 156-157, 1 L.Ed.2d 201 (1956).
Second, on the House floor, Representatives Eilberg and Olsen, in voicing their support for the bill, stated that one reason the bill was necessary was that people who were retired needed to have opportunities for other employment open to them. 113 Cong.Rec. 34745 (1967); id., at 34746. It is not entirely clear whether they were referring to people who would be involuntarily retired in the future, or only to those who had been retired prior to enactment of the Act. But even if they were implicitly expressing the view that the Act permits involuntary retirement, their statements stand in opposition to the clear import of every other statement on the floor of each House, as well as to the Committee Reports. Such a conflict must be resolved in favor of "the statements of those . . . most intimately connected with the final version of the statute." Maintenance Employes v. United States, supra, at 176-177, 81 S.Ct. at 916-917. See remarks of Senator Yarborough, quoted supra, at 215.
11
Indeed both the House and Senate bills provide that, because the addition to § 4(f)(2) is only a clarification, it is to be effective immediately; by contrast, the effective date for other changes regarded as alterations of the 1967 Act has been deferred.
12
The Committee Reports cite and discuss Zinger v. Blanchette, 549 F.2d 901 (CA3 1977), cert. pending, No. 76-1375; Brennan v. Taft Broadcasting Co., 500 F.2d 212 (CA5 1974); and the instant case. H.R.Rep. No. 95-527, p. 5; S.Rep. No. 95-493, p. 10.
13
Because I do not interpret § 4(f)(2) to authorize involuntary retirement, I have no occasion to address the questions discussed by the Court, ante, at 197-198, and by Mr. Justice STEWART, ante, at 204, as to whether the plan involved here is "a subterfuge to evade the purposes of [the Act]," 29 U.S.C. § 623(f)(2). I am compelled to note, however, my emphatic disagreement with their suggestion that a pre-Act plan cannot be a subterfuge to avoid the purposes of the Act. The 1967 Committee Reports of both Houses expressly state: "It is important to note that [§ 4(f)(2)] applies to new and existing employee benefit plans, and to both the establishment and maintenance of such plans. This exception serves to emphasize the primary purpose of the bill—hiring of older workers—by permitting employment without necessarily including such workers in employee benefit plans. The specific exception was an amendment to the original bill, is considered vita[l] to the legislation, and was favorably received by witnesses at the hearings." H.R.Rep. No. 805, 90th Cong., 1st Sess., 4 (1967); see S.Rep.No. 723, 90th Cong., 1st Sess., 4 (1967), U.S.Code Cong. & Admin.News 1967, p. 2217.
| 12
|
434 U.S. 220
98 S.Ct. 458
54 L.Ed.2d 424
James Raymond MOORE, Petitioner,v.State of ILLINOIS.
No. 76-5344.
Argued Oct. 3, 1977.
Decided Dec. 12, 1977.
Syllabus.
After petitioner had been arrested for rape and related offenses he was identified by the complaining witness as her assailant at the ensuing preliminary hearing, during which petitioner was not represented by counsel nor offered appointed counsel. The victim had been asked to make identification after being told that she was going to view a suspect, after being told his name and having heard it called as he was led before the bench, and after having heard the prosecutor recite the evidence believed to implicate petitioner. Subsequently, petitioner was indicted, and counsel was appointed, who moved to suppress the victim's identification of petitioner. The Illinois trial court denied the motion on the ground that the prosecution had shown an independent basis for the victim's identification. At trial, the victim testified on direct examination by the prosecution that she had identified petitioner as her assailant at the preliminary hearing, and there was certain other evidence linking petitioner to the crimes. He was convicted and the Illinois Supreme Court affirmed. He then sought habeas corpus relief in Federal District Court on the ground that the admission of the identification testimony at trial violated his Sixth and Fourteenth Amendment rights, but the court denied relief again on the ground that the prosecution had shown an independent basis for the identification, and the Court of Appeals affirmed. Held :
1. Petitioner's Sixth Amendment right to counsel was violated by a corporeal identification conducted after the initiation of adversary judicial criminal proceedings and in the absence of counsel. United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149; Gilbert v. California, 388 U.S. 263, 87 S.Ct. 1951, 18 L.Ed.2d 1178. It is difficult to imagine a more suggestive manner in which to present a suspect to a witness for their critical first confrontation than was employed in this case at the preliminary hearing, and if petitioner had been represented by counsel, some or all of this suggestiveness could have been avoided. And the prosecution could not properly buttress its case-in-chief by introducing evidence of a pretrial identification made in violation of petitioner's Sixth Amendment rights, even if it could prove that the pretrial identification had an independent source. Pp. 224-232.
2. The case will be remanded, however, for a determination of whether the failure to exclude the evidence derived directly from the violation of petitioner's Sixth Amendment right to counsel was harmless constitutional error under Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705. Pp. 232.
534 F.2d 331, reversed and remanded.
Patrick J. Hughes, Jr., Chicago, Ill., for petitioner.
Charles H. Levad, Chicago, Ill., for respondent.
Mr. Justice POWELL delivered the opinion of the Court.
1
Petitioner was convicted of rape and related offenses. At trial the complaining witness testified on direct examination by the prosecution that she had identified petitioner at a preliminary hearing at which he was not represented by counsel. The State Supreme Court affirmed petitioner's convictions, and the Federal District Court and Court of Appeals denied habeas corpus relief. We granted certiorari because of an apparent conflict between the decisions below and our holdings with respect to the right to counsel at corporeal identifications 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 Kirby v. Illinois, 406 U.S. 682, 92 S.Ct. 1877, 32 L.Ed.2d 411 (1972). We reverse.
2
* The victim of the offenses in question lived in an apartment on the South Side of Chicago. Shortly after noon on December 14, 1967, she awakened from a nap to find a man standing in the doorway to her bedroom holding a knife. The man entered the bedroom threw her face down on the bed, and choked her until she was quiet. After covering his face with a bandana, the intruder partially undressed the victim, forced her to commit oral sodomy, and raped her. Then he left, taking a guitar and a flute from the apartment.
3
When police arrived, the victim gave them a description of her assailant. Although she did not know who he was and had seen his face for only 10 to 15 seconds during the attack, she thought he was the same man who had made offensive remarks to her in a neighborhood bar the night before. She also gave police a notebook she had found next to her bed after the attack.
4
In the week that followed, police showed the victim two groups of photographs of men. From the first group of 200 she picked about 30 who resembled her assailant in height, weight, and build. From the second group of about 10, she picked two or three. One of these was of petitioner. Police also found a letter in the notebook that the victim had given them. Investigation revealed that it was written by a woman with whom petitioner had been staying. The letter had been taken from the woman's home in her absence, and petitioner appeared to be the only other person who had access to the home.
5
On the evening of December 20, 1967, police arrested petitioner at his apartment and held him overnight pending a preliminary hearing to determine whether he should be bound over to the grand jury and to set bail. The next morning, a policeman accompanied the victim to the Circuit Court of Cook County (First Municipal District) for the hearing. The policeman told her she was going to view a suspect and should identify him if she could. He also had her sign a complaint that named petitioner as her assailant. At the hearing, petitioner's name was called and he was led before the bench. The judge told petitioner that he was charged with rape and deviate sexual behavior. The judge then called the victim, who had been in the courtroom waiting for the case to be called, to come before the bench. The State's Attorney stated that police had found evidence linking petitioner with the offenses charged. He asked the victim whether she saw her assailant in the courtroom, and she pointed at petitioner. The State's Attorney then requested a continuance of the hearing because more time was needed to check fingerprints. The judge granted the continuance and fixed bail. Petitioner was not represented by counsel at this hearing, and the court did not offer to appoint counsel.
6
At a subsequent hearing, petitioner was bound over to the grand jury, which indicted him for rape, deviate sexual behavior, burglary, and robbery. Counsel was appointed, and he moved to suppress the victim's identification of petitioner because it had been elicited at the preliminary hearing through an unnecessarily suggestive procedure at which petitioner was not represented by counsel.1 After an evidentiary hearing the trial court denied the motion on the ground that the prosecution had shown an independent basis for the victim's identification.
7
At trial, the victim testified on direct examination by the prosecution that she had identified petitioner as her assailant at the preliminary hearing. She also testified that the defendant on trial was the man who had raped her. The prosecution's other evidence linking petitioner with the crimes was the letter found in the victim's apartment. Defense counsel stipulated that petitioner had taken the letter from his woman friend's home, but he presented evidence that petitioner might have lost the notebook containing the letter at the neighborhood bar the night before the attack. The defense theory was that the victim, who also was in the bar that night, could have picked up the notebook by mistake and taken it home. The defense also called witnesses who testified that petitioner was with them in a college lunchroom in another part of Chicago at the time the attack was committed.
8
The jury found petitioner guilty on all four counts, thus rejecting his theory and alibi. The trial court sentenced him to 30 to 50 years in prison. The Illinois Supreme Court affirmed. People v. Moore, 51 Ill.2d 79, 281 N.E.2d 294 (1972). It rejected petitioner's argument that the victim's identification testimony should have been excluded, on the ground that the prosecution had shown an "independent basis" for the identification. Id., at 86, 281 N.E.2d, at 298. After this Court denied certiorari, 409 U.S. 979, 93 S.Ct. 331, 34 L.Ed.2d 242 (1972), petitioner sought a writ of habeas corpus from the Federal District Court. He contended that admission of the identification testimony at trial violated his Sixth and Fourteenth Amendment rights. Relying on the transcript from the state proceedings, the District Court denied the writ in an unpublished opinion, again on the ground that the prosecution had shown an independent basis for the identification. App. 31-35. The Court of Appeals for the Seventh Circuit affirmed in an unpublished opinion, United States ex rel. Moore v. Illinois, 534 F.2d 331 (1976), and we granted certiorari. 429 U.S. 1061, 97 S.Ct. 783, 50 L.Ed.2d 776 (1977).
II
9
United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967), held that a pretrial corporeal identification conducted after a suspect has been indicted is a critical stage in a criminal prosecution at which the Sixth Amendment entitles the accused to the presence of counsel. The Court emphasized the dangers inherent in a pretrial identification conducted in the absence of counsel. Persons who conduct the identification procedure may suggest, intentionally or unintentionally, that they expect the witness to identify the accused. Such a suggestion, coming from a police officer or prosecutor, can lead a witness to make a mistaken identification. The witness then will be predisposed to adhere to this identification in subsequent testimony at trial. Id., at 229, 235-236, 87 S.Ct., at 1933, 1936-1937. If an accused's counsel is present at the pretrial identification, he can serve both his client's and the prosecution's interests by objecting to suggestive features of a procedure before they influence a witness' identification. Id., at 236, 238, 87 S.Ct., at 1937, 1938. In view of the "variables and pitfalls" that exist at an uncounseled pretrial identification, id., at 235, 87 S.Ct., at 1936, the Wade Court reasoned:
10
"[T]he first line of defense must be the prevention of unfairness and the lessening of the hazards of eyewitness identification at the lineup itself. The trial which might determine the accused's fate may well not be that in the courtroom but that at the pretrial confrontation, with the State aligned against the accused, the witness the sole jury, and the accused unprotected against the overreaching, intentional or unintentional, and with little or no effective appeal from the judgment there rendered by the witness 'that's the man.' " Id., at 235-236, 87 S.Ct. at 1937.
11
Wade and its companion case, Gilbert v. California, 388 U.S. 263, 87 S.Ct. 1951, 18 L.Ed.2d 1178 (1967), also considered the admissibility of evidence derived from a corporeal identification conducted in violation of the accused's right to counsel. In Wade, witnesses to a robbery who had identified the defendant at an uncounseled pretrial lineup testified at trial on direct examination by the prosecution that he was the man who had committed the robbery. The prosecution did not elicit from the witnesses the fact that they had identified the defendant at the pretrial lineup. Nevertheless, because of the likelihood that the witnesses' in-court identifications were based on their observations of the defendant at the uncounseled lineup rather than at the scene of the crime, the Court held that this testimony should have been excluded unless the prosecution could "establish by clear and convincing evidence that the in-court identifications were based upon observations of the suspect other than the lineup identification." 388 U.S., at 240, 87 S.Ct., at 1939.2
12
Gilbert differed from Wade in one critical respect. In Gilbert the prosecution did elicit testimony in its case-in-chief that witnesses had identified the accused at an uncounseled pretrial lineup. The Court recognized that such testimony would "enhance the impact of [a witness'] in-court identification on the jury and seriously aggravate whatever derogation exists of the accused's right to a fair trial." 388 U.S., at 273-274, 87 S.Ct., at 1957. Because "[t]hat testimony [was] the direct result of the illegal lineup 'come at by exploitation of [the primary] illegality[,]' Wong Sun v. United States, 371 U.S. 471, 488, 83 S.Ct. 407, 9 L.Ed.2d 441" the prosecution was "not entitled to an opportunity to show that the testimony had an independent source." Id., at 272-273, 87 S.Ct., at 1957; see also Wade, supra, 388 U.S., at 240 n. 32, 87 S.Ct., at 1939. The Court announced this exclusionary rule in the belief that such a sanction is necessary "to assure that law enforcement authorities will respect the accused's constitutional right to the presence of his counsel at the critical lineup." Gilbert, supra, at 273, 87 S.Ct., at 1957. The Court therefore reversed the conviction and remanded to the state court for a determination of whether admission of this evidence was harmless constitutional error under Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967). 388 U.S., at 274, 87 S.Ct., at 1957.
13
In Kirby v. Illinois, 406 U.S. 682, 92 S.Ct. 1877, 32 L.Ed.2d 411 (1972), the plurality opinion made clear that the right to counsel announced inWade and Gilbert attaches only to corporeal identifications conducted "at or after the initiation of adversary judicial criminal proceedings—whether by way of formal charge, preliminary hearing, indictment, information, or arraignment." 406 U.S., at 689, 92 S.Ct., at 1882. This is so because the initiation of such proceedings "marks the commencement of the 'criminal prosecutions' to which alone the explicit guarantees of the Sixth Amendment are applicable." Id., at 690, 92 S.Ct., at 1882. Thus, in Kirby the plurality held that the prosecution's evidence of a robbery victim's one-on-one stationhouse identification of an uncounseled suspect shortly after the suspect's arrest was admissible because adversary judicial criminal proceedings had not yet been initiated. In such cases, however, due process protects the accused against the introduction of evidence of, or tainted by, unreliable pretrial identifications obtained through unnecessarily suggestive procedures. Id., at 690-691, 92 S.Ct., at 1882-1883; Neil v. Biggers, 409 U.S. 188, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972); Stovall v. Denno, 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199 (1967); see generally Manson v. Brathwaite, 432 U.S. 98, 97 S.Ct. 2243, 53 L.Ed.2d 140 (1977).3
III
14
In the instant case, petitioner argues that the preliminary hearing at which the victim identified him marked the initiation of adversary judicial criminal proceedings against him. Hence, under Wade, Gilbert, and Kirby, he was entitled to the presence of counsel at that confrontation. Moreover, the prosecution introduced evidence of this uncounseled corporeal identification at trial in its case-in-chief. Petitioner contends that under Gilbert, this evidence should have been excluded without regard to whether there was an "independent source" for it.
15
The Court of Appeals took a different view of the case. It read Kirby as holding that evidence of a corporeal identification conducted in the absence of defense counsel must be excluded only if the identification is made after the defendant is indicted. App. 45-46. Such a reading cannot be squared with Kirby itself, which held that an accused's rights under Wade and Gilbert attach to identifications conducted "at or after the initiation of adversary judicial criminal proceedings," including proceedings instituted "by way of formal charge [or] preliminary hearing." 406 U.S., at 689, 92 S.Ct., at 1882. The prosecution in this case was commenced under Illinois law when the victim's complaint was filed in court. See Ill.Rev.Stat., ch. 38, § 111 (1975). The purpose of the preliminary hearing was to determine whether there was probable cause to bind petitioner over to the grand jury and to set bail. §§ 109-1, 109-3. Petitioner had the right to oppose the prosecution at that hearing by moving to dismiss the charges and to suppress the evidence against him. § 109-3(e). He faced counsel for the State, who elicited the victim's identification, summarized the State's other evidence against petitioner, and urged that the State be given more time to marshal its evidence. It is plain that "the government ha[d] committed itself to prosecute," and that petitioner found "himself faced with the prosecutorial forces of organized society, and immersed in the intricacies of substantive and procedural criminal law." Kirby, supra, at 689, 92 S.Ct., at 1882. The State candidly concedes that this preliminary hearing marked the "initiation of adversary judicial criminal proceedings" against petitioner, Brief for Respondent 8, and n. 1; Tr. of Oral Arg. 32, 34, and it hardly could contend otherwise. The Court of Appeals therefore erred in holding that petitioner's rights under Wade andGilbert had not yet attached at the time of the preliminary hearing.
16
The Court of Appeals also suggested that Wade and Gilbert did not apply here because the "in-court identification could hardly be considered a line-up." App. 45. The meaning of this statement is not entirely clear. If the court meant that a one-on-one identification procedure, as distinguished from a lineup, is not subject to the counsel requirement, it was mistaken. Although Wade and Gilbert both involved lineups, Wade clearly contemplated that counsel would be required in both situations: "The pretrial confrontation for purpose of identification may take the form of a lineup . . . or presentation of the suspect alone to the witness . . .. It is obvious that risks of suggestion attend either form of confrontation . . .." 388 U.S., at 229, 87 S.Ct. at 1933; see also id., at 251, 87 S.Ct., at 1944 (WHITE, J., dissenting in part and concurring in part); cf. Stovall v. Denno, supra; Kirby v. Illinois. Indeed, a one-on-one confrontation generally is thought to present greater risks of mistaken identification than a lineup. E. g., P. Wall, Eye-Witness Identification in Criminal Cases 27-40 (1965); Williams & Hammelmann, Identification Parades I, Crim.L.Rev. 479, 480-481 (1963). There is no reason, then, to hold that a one-on-one identification procedure is not subject to the same requirements as a lineup.
17
If the court believed that petitioner did not have a right to counsel at this identification procedure because it was conducted in the course of a judicial proceeding, we do not agree. The reasons supporting Wade's holding that a corporeal identification is a critical stage of a criminal prosecution for Sixth Amendment purposes apply with equal force to this identification. It is difficult to imagine a more suggestive manner in which to present a suspect to a witness for their critical first confrontation than was employed in this case. The victim, who had seen her assailant for only 10 to 15 seconds, was asked to make her identification after she was told that she was going to view a suspect, after she was told his name and heard it called as he was led before the bench, and after she heard the prosecutor recite the evidence believed to implicate petitioner.4 Had petitioner been represented by counsel, some or all of this suggestiveness could have been avoided.5
18
In sum, we are unpersuaded by the reasons advanced by the Court of Appeals for distinguishing the identification procedure in this case from those considered in Wade and Gilbert. Here, as in those cases, petitioner's Sixth Amendment rights were violated by a corporeal identification conducted after the initiation of adversary judicial criminal proceedings and in the absence of counsel. The courts below thought that the victim's testimony at trial that she had identified petitioner at an uncounseled pretrial confrontation was admissible even if petitioner's rights had been violated, because there was an "independent source" for the victim's identification at the uncounseled confrontation. 51 Ill.2d, at 86, 281 N.E.2d, at 298; App. 35 (District Court), 45-46 (Court of Appeals).6 But Gilbert held that the prosecution cannot buttress its case-in-chief by introducing evidence of a pretrial identification made in violation of the accused's Sixth Amendment rights, even if it can prove that the pretrial identification had an independent source. "That testimony is the direct result of the illegal lineup 'come at by exploitation of [the primary] illegality,' " Gilbert, 388 U.S., at 272-273, 87 S.Ct., at 1957, and the prosecution is "therefore not entitled to an opportunity to show that that testimony had an independent source." Id., at 273, 87 S.Ct., at 1957. Because the prosecution made use of such testimony in this case, petitioner is entitled to the benefit of the strict rule of Gilbert.
IV
19
In view of the violation of petitioner's Sixth and Fourteenth Amendment right to counsel at the pretrial corporeal identification, and of the prosecution's exploitation at trial of evidence derived directly from that violation, we reverse the judgment of the Court of Appeals and remand for a determination of whether the failure to exclude that evidence was harmless constitutional error under Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967). See Gilbert, supra, 388 U.S., at 274, 87 S.Ct., at 1957. That court also will be free on remand to re-examine the other issues presented by the petition, upon which we do not pass.7
20
Reversed and remanded.
21
Mr. Justice STEVENS took no part in the consideration or decision of this case.
22
Mr. Justice REHNQUIST, concurring.
23
In 1964, this Court held that in certain limited circumstances a statement given to police after persistent questioning would be suppressed at trial if the suspect had repeatedly requested, and been denied, an opportunity to consult with his attorney. Escobedo v. Illinois, 378 U.S. 478, 490-491, 84 S.Ct. 1758, 1764-1765, 12 L.Ed.2d 977. At the time, there were intimations that this ruling rested largely on the Sixth Amendment guarantee of right to counsel at critical stages of the criminal proceeding. Id., at 484-486, 84 S.Ct., at 1761-1762. Shortly thereafter, however, the Court perceived "that the 'prime purpose' of Escobedo was not to vindicate the constitutional right to counsel as such, but, like Miranda, 'to guarantee full effectuation of the privilege against self-incrimination . . . .' Johnson v. New Jersey, 384 U.S. 719, 729, 86 S.Ct. 1772, 16 L.Ed.2d 882." Kirby v. Illinois, 406 U.S. 682, 689, 92 S.Ct. 1877, 1882, 32 L.Ed.2d 411 (1972) (Stewart, J.). Cf. Darwin v. Connecticut, 391 U.S. 346, 349, 88 S.Ct. 1488, 1489, 20 L.Ed.2d 630 (1968). Accordingly, Escobedo was largely limited to its facts. See Johnson v. New Jersey, 384 U.S. 719, 733-734, 86 S.Ct. 1772, 1780-1781, 16 L.Ed.2d 882 (1966); Kirby v. Illinois, supra; Frazier v. Cupp, 394 U.S. 731, 739, 89 S.Ct. 1420, 1424, 22 L.Ed.2d 684 (1969); Michigan v. Tucker, 417 U.S. 433, 438, 94 S.Ct. 2357, 2360, 41 L.Ed.2d 182 (1974). This, of course, left open the possibility of examining the voluntariness of a confession under a more appropriate standard—the totality of the circumstances. Cf. Clewis v. Texas, 386 U.S. 707, 87 S.Ct. 1338, 18 L.Ed.2d 423 (1967).
24
I believe the time will come when the Court will have to re-evaluate and reconsider the Wade-Gilbert* rule for many of the same reasons. The rule was established to ensure the accuracy and reliability of pretrial identifications and the Court will have to decide whether a per se exclusionary rule should still apply or whether Wade-Gilbert violations, like other questions involving the reliability of pretrial identification, should be judged under the totality of the circumstances. Cf. Manson v. Brathwaite, 432 U.S. 98, 106, 97 S.Ct. 2243, 53 L.Ed.2d 140 (1977); cf. Kirby v. Illinois, supra, 406 U.S., at 690-691, 92 S.Ct., at 1882-1883; Simmons v. United States, 390 U.S. 377, 383, 88 S.Ct. 967, 970, 19 L.Ed.2d 1247 (1968); Stovall v. Denno, 388 U.S. 293, 302, 87 S.Ct. 1967, 1972, 18 L.Ed.2d 1199 (1967). However, since the State has chosen not to press this point and because I believe the Court's opinion is a correct reading of Wade and Gilbert, I concur in the opinion and judgment of the Court.
25
Mr. Justice BLACKMUN, concurring in the result.
26
I concur in the result, and I join the Court in remanding the case for a determination as to whether the adjudged error was harmless. On the record of this case, the conclusion that it was harmless seems to me to be almost inevitable; that, however, is for the courts below to decide in the first instance.
27
I feel, furthermore, that the Court in its opinion has made more out of this case than its facts warrant. As the Court points out, ante, p. 464, the State of Illinois has conceded, Brief for Respondent 8, and n. 1; Tr. of Oral Arg. 32, 34, that the so-called preliminary hearing on December 21, 1967, at which the victim testified, was the initiation of adversary judicial criminal proceedings against petitioner. At trial, the victim testified that at that hearing she had identified petitioner as her assailant. This being so, the ban of Gilbert v. California, 388 U.S. 263, 87 S.Ct. 1951, 18 L.Ed.2d 1178 (1967), applies in full force and in itself would require the remand the Court orders. With the State's concession, I see no need to wrestle with the issue whether what took place on December 21 marked the initiation of formal proceedings against petitioner in the sense of Kirby v. Illinois, 406 U.S. 682, 92 S.Ct. 1877, 32 L.Ed.2d 411 (1972), and thereby possibly to become entangled with the ghost, unmentioned by the Court, of the holding in Coleman v. Alabama, 399 U.S. 1, 90 S.Ct. 1999, 26 L.Ed.2d 387 (1970), determined not to be retroactive inAdams v. Illinois, 405 U.S. 278, 92 S.Ct. 916, 31 L.Ed.2d 202 (1972).
28
One last word: I disassociate myself from the implication twice appearing in the Court's opinion, ante, at 222 and at 229 that there is something insignificant or unreliable about a rape victim's observation during the crime of the facial features of her assailant when that observation lasts "only 10 to 15 seconds." Time, of course, is always a comparative matter. Fifteen seconds perhaps would mean little in the identification of scores of separate individuals participating in an illegal riot. But 10 to 15 seconds of observation of the face of a rapist at midday by his female victim during the commission of the crime by no means is insufficient to leave an accurate and indelible impression on the victim. One need only observe another person's face for 10 seconds by the clock to know this. To the resisting woman, the 10 to 15 seconds would seem endless. No female victim of a rape, given that period of daylight observation, will ever believe otherwise. I therefore cannot be a party to the Court's degradation, and almost literal dismissal, of so vital an observation.
1
Counsel for petitioner explicitly drew the court's attention to our then recent decision in United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967): "If we may look at the Wade case, Your Honor, it has as its holding, Your Honor, the requirement that a defendant have an attorney at an identification procedure . . . ." Trial Transcript 132.
2
Among the factors to be considered in making this determination are "the prior opportunity to observe the alleged criminal act, the existence of any discrepancy between any pre-lineup description and the defendant's actual description, any identification prior to lineup of another person, the identification by picture of the defendant prior to the lineup, failure to identify the defendant on a prior occasion, and the lapse of time between the alleged act and the lineup identification." 388 U.S., at 241, 87 S.Ct., at 1940.
3
In United States v. Ash, 413 U.S. 300, 93 S.Ct. 2568, 37 L.Ed.2d 619 (1973), the Court held that the Sixth Amendment does not require that defense counsel be present when a witness views police or prosecution photographic arrays. A photographic showing, unlike a corporeal identification, is not a "trial-like adversary confrontation" between an accused and agents of the government; hence, "no possibility arises that the accused might be misled by his lack of familiarity with the law or overpowered by his professional adversary." Id., at 317, 93 S.Ct. at 2577. Moreover, even without attending the prosecution's photographic showing, defense counsel has an equal chance to prepare for trial by presenting his own photographic displays to witnesses before trial. But "[d]uplication by defense counsel is a safeguard that normally is not available when a formal confrontation occurs." Id., at 318 n. 10, 93 S.Ct., at 2578. An accused nevertheless is entitled to due process protection against the introduction of evidence of, or tainted by, unreliable identifications elicited through unnecessarily suggestive photographic displays. Id., at 320, 93 S.Ct., at 2579; Manson v. Brathwaite; Simmons v. United States, 390 U.S. 377, 88 S.Ct. 967, 19 L.Ed.2d 1247 (1968).
4
Immediately before the State's Attorney asked the victim to identify petitioner, he stated:
"This is an allegation of rape and deviate sexual assault. It's a home invasion of an apartment in Hyde Park and the victim was raped and forced to commit an oral copulation. Taken from her was a guitar and other instruments. When the defendant was arrested upon an arrest warrant signed by the Judge of the Court, the articles, the guitar and other instruments were found in the apartment, as were the clothes described of the man that attacked her that day." App. 48-49.
It appears from the record that although a guitar and a flute were found in petitioner's apartment when he was arrested, they were not the ones taken from the victim's apartment and they were not introduced into evidence at petitioner's trial. Transcript of Proceedings at Hearing of Feb. 5, 1968, p. 10; Trial Transcript 44-45, 400-401. Neither was any clothing.
5
For example, counsel could have requested that the hearing be postponed until a lineup could be arranged at which the victim would view petitioner in a less suggestive setting. See, e. g., United States v. Ravich, 421 F.2d 1196, 1202-1203 (CA2), cert. denied, 400 U.S. 834, 91 S.Ct. 69, 27 L.Ed.2d 66 (1970); Mason v. United States, 134 U.S.App.D.C. 280, 283, n. 19, 414 F.2d 1176, 1179 n. 19 (1969). Short of that, counsel could have asked that the victim be excused from the courtroom while the charges were read and the evidence against petitioner was recited, and that petitioner be seated with other people in the audience when the victim attempted an identification. See Allen v. Rhay, 431 F.2d 1160, 1165 (CA9 1970), cert. denied, 404 U.S. 834, 92 S.Ct. 116, 30 L.Ed.2d 64 (1971). Counsel might have sought to cross-examine the victim to test her identification before it hardened. Cf. Haberstroh v. Montanye, 493 F.2d 483, 485 (CA2 1974); United States ex rel. Riffert v. Rundle, 464 F.2d 1348, 1351 (CA3 1972), cert. denied sub nom. Riffert v. Johnson, 415 U.S. 927, 94 S.Ct. 1434, 39 L.Ed.2d 484 (1974). Because it is in the prosecution's interest as well as the accused's that witnesses' identifications remain untainted, see Wade, 388 U.S., at 238, 87 S.Ct., at 1938, we cannot assume that such requests would have been in vain. Such requests ordinarily are addressed to the sound discretion of the court, see United States v. Ravich, supra, at 1203; we express no opinion as to whether the preliminary hearing court would have been required to grant any such requests.
6
The existence of an "independent source" was thought to be demonstrated by the victim's selection of a picture of petitioner from the second photographic array. The courts below and the parties here have not been certain as to how many pictures the victim actually selected from that array. Although there is some ambiguity in the record, compare Trial Transcript 110-111, 113-114, 167, 290-292, 294, 307-308, 421, 454, with id., at 155-156, 158, 231-232, we think a fair reading indicates that the victim selected more than one photograph and that she did not make a positive identification of petitioner from them. But resolution of this factual issue is not necessary to our decision in this case.
7
In addition to his Gilbert argument, petitioner urges that the victim's in-court identification was tainted by the prior uncounseled identification, see Wade ; that the in-court identification was the unreliable product of an unnecessarily suggestive identification procedure and should have been excluded under the Due Process Clause of the Fourteenth Amendment, see Manson v. Brathwaite, 432 U.S. 98, 97 S.Ct. 2243, 53 L.Ed.2d 140 (1977); and that the trial court's denial of a transcript of the preliminary hearing was prejudicial constitutional error, see Roberts v. LaVallee, 389 U.S. 40, 88 S.Ct. 194, 19 L.Ed.2d 41 (1967).
*
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).
1
The District Court certified its interlocutory decision for immediate ppeal under 28 U.S.C. § 1292(b).
| 01
|
434 U.S. 241
98 S.Ct. 546
54 L.Ed.2d 506
PHILADELPHIA NEWSPAPERS, INC., et al.v.Domenic D. JEROME, Judge of the Court of Common Pleas of Delaware County, Pennsylvania.
No. 77-308.
Jan. 9, 1978.
PER CURIAM.
1
The proceedings below were brought to gain access by the press and public to pretrial suppression hearings in three separate state criminal proceedings. Access was denied and the trial judges closed all pretrial hearings and sealed and impounded all papers, documents, and records filed in the cases. The judges also prohibited the parties, their attorneys, public officials, and certain others, from disseminating information concerning the hearings. ppellants then filed petitions for writs of mandamus with the Supreme Court of Pennsylvania. However, these were denied without opinion. Appellants, arguing that they had been denied their federal constitutional rights, now urge us to take appellate jurisdiction of these matters under 28 U.S.C. § 1257(2).
2
As matters now stand, the record does not disclose whether the Supreme Court of Pennsylvania passed on appellants' federal claims or whether it denied mandamus on an adequate and independent state ground. For this reason, we vacate the judgments of the Supreme Court, and remand the cause to that court for such further proceedings as it may deem appropriate to clarify the record. See California v. Krivda, 409 U.S. 33, 93 S.Ct. 32, 34 L.Ed.2d 45 (1972).
3
So ordered.
4
Mr. Justice REHNQUIST, with whom Mr. Justice STEVENS joins, dissenting.
5
The Court today summarily vacates the judgments of the State Supreme Court and remands for further proceedings. Neither past decisions of this Court nor policy considerations support this unwarranted assumption of jurisdiction and imposition on the state courts.
6
The Pennsylvania Rules of Criminal Procedure permit a trial judge to close pretrial suppression hearings from the press and public at the request of the criminal defendant, mandate that all records of such hearings be sealed, and allow the judge in a "widely-publicized or sensational case" to prohibit parties and witnesses from making extrajudicial statements. This appeal stems from the entry of such orders in three Pennsylvania murder trials. In the first trial, appellants filed a petition to vacate the orders with the trial judge; on the same day, appellants also filed petitions for writ of mandamus and prohibition and for plenary jurisdiction with the Pennsylvania Supreme Court. The petition to vacate was denied by the trial judge after the suppression hearing on the ground, according to appellants, that "he was obligated to accord prima facie validity to the Pennsylvania Supreme Court's Rules." The Pennsylvania Supreme Court two weeks later denied the petitions for mandamus and for plenary jurisdiction without opinion. Appellants filed similar petitions to vacate with the Common Pleas judges presiding over the other two trials; these petitions were denied on the ground that appellants lacked standing to challenge the orders. Appellants thereafter again filed petitions for mandamus and prohibition and for plenary jurisdiction with the Pennsylvania Supreme Court which were denied without opinion.
7
We do not know why the Pennsylvania Supreme Court denied appellants' petitions for writ of mandamus and prohibition and for plenary jurisdiction.1 There is no reason to presume that the petitions were rejected because the Pennsylvania Supreme Court disagreed with appellants' constitutional claims. The petitions were for extraordinary relief. The Pennsylvania Supreme Court has consistently emphasized that such petitions are "to be used only with great caution and forbearance and as an extraordinary remedy in cases of extreme necessity, to secure order and regularity in judicial proceedings if none of the ordinary remedies provided by law is applicable or adequate to afford relief." Such relief "is not of absolute right but rests largely in the sound discretion of the court. It will never be granted where there is a complete and effective remedy by appeal, certiorari, writ of error, injunction, or otherwise." Carpentertown Coal & Coke Co. v. Laird, 360 Pa. 94, 102, 61 A.2d 426, 430 (1948). See also Commonwealth ex rel. Specter v. Shiomos, 457 Pa. 104, 320 A.2d 134 (1974); In re Specter, 455 Pa. 518, 317 A.2d 286 (1974); Francis v. Corleto, 418 Pa. 417, 211 A.2d 503 (1965).
8
While appellants claim that their petitions to the Pennsylvania Supreme Court drew into question the constitutional validity of the sections of the Pennsylvania Rules of Criminal Procedure described above, the Pennsylvania Supreme Court's denials of their petitions did not on its face decide in favor of the rules' validity. Thus, it would not appear that we have jurisdiction to note the appeal under 28 U.S.C. § 1257(2).2
9
Of course, the denials may have been grounded on a decision by the Pennsylvania Supreme Court that the Rules do not violate the Federal Constitution. But this does not require that we vacate a presumably valid judgment of a state supreme court and remand for further proceedings. A less intrusive alternative, and one supported by past precedents of this Court, is to postpone consideration of jurisdiction until appellants have had an opportunity to demonstrate that the judgment appealed from does not rest on an independent and adequate state ground. See, e. g., Lynum v. Illinois, 368 U.S. 908, 82 S.Ct. 190, 7 L.Ed.2d 128 (1961) (consideration of certiorari deferred "to accord counsel for petitioner opportunity to secure a certificate from the Supreme Court of Illinois as to whether the judgment herein was intended to rest on an adequate and independent state ground"); Herb v. Pitcairn, 324 U.S. 117, 65 S.Ct. 459, 89 L.Ed. 789 (1945). By vacating the judgment below, this Court is taking from appellants the normal burden of demonstrating that we have jurisdiction and placing it on the Supreme Court of Pennsylvania. We deny extraordinary relief regularly without typically expressing our reasons for so doing. We should not place a higher requirement on state supreme courts under penalty of this Court's vacating their judgment.
10
The Supreme Court of Pennsylvania did not affirm the orders of the trial judges. If it had and if there were reasonable doubt as to whether the affirmance were on state or federal grounds, the precedential and res judicata effects of the affirmance might call for vacating the judgment below. Cf. California v. Krivda, 409 U.S. 33, 93 S.Ct. 32, 34 L.Ed.2d 45 (1972) (judgment affirming a suppression order vacated when it was unclear whether judgment rested on state or federal constitutional grounds). However, the Supreme Court of Pennsylvania has merely denied extraordinary and discretionary relief without indicating any opinion on appellants' constitutional challenge. Appellants are thus presumably free to pursue their challenge through state and federal actions still open to them. Under similar circumstances, where it was unclear whether the lower court denied relief on the merits or because the wrong remedy had been chosen, this Court has dismissed the appeal or petition for certiorari. See, e. g., Phyle v. Duffy, 334 U.S. 431, 68 S.Ct. 1131, 92 L.Ed. 1494 (1948); Woods v. Nierstheimer, 328 U.S. 211, 66 S.Ct. 996, 90 L.Ed. 1177 (1946); White v. Ragen, 324 U.S. 760, 65 S.Ct. 978, 89 L.Ed. 1348 (1945). I would do that here unless appellants carry their burden of establishing that the decisions of the Supreme Court of Pennsylvania did not rest on an adequate state ground.
1
Title 17 Pa.Cons.Stat. § 211.201 (Purdon Supp.1977) gives the Supreme Court of Pennsylvania "original but not exclusive jurisdiction" to issue writs of mandamus or prohibition to courts of inferior jurisdiction. Title 17 Pa.Cons.Sta . § 211.205 (Purdon Supp.1977), entitled "Extraordinary Jurisdiction," permits the Supreme Court of Pennsylvania to assume plenary jurisdiction "on its own motion or upon petition of any party, in any matter pending before any court or justice of the peace of this Commonwealth involving an issue of immediate public importance."
2
Section 1257(2) provides for Supreme Court review of final judgments rendered by the highest court of a State "[b]y 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."
| 89
|
434 U.S. 236
98 S.Ct. 544
54 L.Ed.2d 501
CHASE MANHATTAN BANK (NATIONAL ASSOCIATION)v.SOUTH ACRES DEVELOPMENT COMPANY, a partnership.
No. 77-267.
Decided Jan. 9, 1978.
PER CURIAM.
1
The issue in this case is whether Congress has authorized the District Court of Guam to exercise federal diversity jurisdiction. Respondent brought suit in the Guam District Court, claiming that the court had jurisdiction over its action on the basis of diverse citizenship. The court agreed, denied petitioner's motion to dismiss for lack of jurisdiction,1 Mailloux v. Mailloux, 417 F.Supp. 11 (1975), and a divided Court of Appeals affirmed. 554 F.2d 976 (CA9 1977). Because Congress has neither explicitly nor implicitly granted diversity jurisdiction to the District Court of Guam, we reverse.
2
As part of the Organic Act of Guam, Congress created the District Court of Guam. 64 Stat. 389, 48 U.S.C. § 1424(a). The District Court was established "under Art. IV, § 3, of the Federal Constitution rather than under Art. III," Guam v. Olsen, 431 U.S. 195, 196-197, n. 1, 97 S.Ct. 1774, 1776, 52 L.Ed.2d 250 (1977),2 and Congress provided that the District Court would have the following jurisdiction:
3
"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, regardless of the sum or value of the matter in controversy, 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." 48 U.S.C. § 1424(a).
4
Conspicuously absent in this provision is any mention of federal diversity jurisdiction. The provision's first clause follows the language of the federal-question statute, 28 U.S.C. § 1331, and the federal-question clause of Art. III, § 2. The second clause establishes original jurisdiction over local causes of action without regard to diversity of citizenship. The second clause is not applicable to this case, however, because in 1974 the Guam Legislature transferred jurisdiction of all cases arising under the laws of Guam from the District Court to the local courts.3 Thus, the only issue before us is whether the first clause, which grants federal-question jurisdiction to the District Court, see Guam v. Olsen, supra, also encompasses diversity jurisdiction. The Court of Appeals apparently reasoned that any cause of action with diverse parties "arising under the . . . laws . . . of the United States," since 28 U.S.C. § 1332, the diversity statute, is a law of the United States. By this logic, any cause of action with diverse parties under § 1332 would be within the scope of federal-question jurisdiction. But as we stated in Guam v. Olsen, "whatever may be the ambiguities of the phrase 'arising under [the Constitution, treaties, and laws of the United States]'—it does not embrace all civil cases that may present questions of federal law." 431 U.S., at 202, 97 S.Ct., at 1779. By the same token, it does not embrace federal diversity jurisdiction. The short answer to the contention that diversity jurisdiction is merely a species of federal-question jurisdiction is that the Constitution itself distinguishes between these two types of jurisdictions. "The Constitution certainly contemplates these . . . as distinct classes of cases; and if they are distinct, the grant of jurisdiction over one of them does not confer jurisdiction over . . . the other . . .. The discrimination made between them, in the Constitution, is, we think, conclusive against their identity." American Insurance Co. v. Canter, 1 Pet. 511, 545, 7 L.Ed. 242 (1828).
5
We also reject the notion that Congress, by extending the Privileges and Immunities Clauses of the Federal Constitution t Guam, 48 U.S.C. § 1421b(u), intended and implicitly authorized the Guam District Court to exercise federal diversity jurisdiction. 554 F.2d, at 977. This Court has never held that the Privileges and Immunities Clauses prohibit Congress from withholding or restricting diversity jurisdiction,4 and there is nothing in the legislative history of § 1421b(u) to suggest that Congress intended that provision to have any effect on the Guam District Court's original jurisdiction.5 Without support in the language or legislative history of the section, it is simply untenable to interpret § 1421b(u) either as conferring diversity jurisdiction by its own terms or as impliedly expanding the grant of original jurisdiction contained in § 1424(a).
6
We recognize that Congress' jurisdictional grant to the District Court of Guam is unique. All other federal district courts in the States and Territories exercise either diversity jurisdiction or concurrent original jurisdiction over many local causes of action. See 554 F.2d, at 984 n.18 (Sneed, J., dissenting). Whether or not this peculiar treatment of the Guam District Court is preferable or even wise, however, we are constrained by the principle that federal courts are courts of limited jurisdiction. Where, as here, Congress has clearly established appropriate limitations on the District Court's original jurisdiction, we are compelled to respect those limits.
7
The petition for a writ of certiorari is granted, and the decision of the Court of Appeals is reversed.
8
So ordered.
1
The District Court its interlocutory decision for immediate appeal under 28 U. S. C. § 1292 (b).
2
We are, therefore, not faced with the question of what jurisdictional limits Congress may place upon federal district courts established under Art. III. Congress' broad power over Territories under Art. IV is, of course, well established. See, e. g., Binns v. United States, 194 U.S. 486, 24 S.Ct. 816, 48 L.Ed. 1087 (1904).
3
Court Reorganization Act of 1974, Guam Pub.L. 12-85, § 55. The Court of Appeals for the Ninth Circuit has held that the jurisdiction of the local court under the Court Reorganization Act is exclusive and not concurrent with the Guam District Court. Agana Bay Dev. Co. (Hong Kong) v. Supreme Court of Guam, 529 F.2d 952, 955, n.4 (1976). As in Guam v. Olsen, 431 U.S., at 197 n.3, 97 S.Ct., at 1776, that holding is not at issue in this case.
4
Indeed, we have never held that the Privileges and Immunities Clauses of Art. IV, § 2, cl. 1, and the Fourteenth Amendment restrict congressional—as opposed to state—action.
5
In fact, the legislative history of § 1421b(u) reveals that Congress' intent in extending the Privileges and Immunities Clauses to Guam was "to limit the power of the territorial legislature rather than affect the jurisdiction of the district court . . . ." 554 F.2d, at 984 n.17 (Sneed, J., dissenting). There is limited support in the legislative history for the view that Congress was also concerned with the ability of citizens "to appeal in proper cases to the national courts . . . ." S.Rep. No. 216, 90th Cong., 1st Sess., 12 (1967) (letter of Feb. 19, 1967, from Assistant Secretary of Interior Harry R. Anderson to Senator Henry M. Jackson, Chairman of the Committee on Interior and Insular Affairs) (emphasis added); see also H.R.Rep. No. 1521, 90th Cong., 2d Sess., 14 (1968). It is doubtful that this one statement could serve as a sufficient basis for concluding that Congress impliedly amended its jurisdictional grant to the Guam District Court through the oblique mechanism of the Privileges and Immunities Clauses. But even if it could, the jurisdictional grant at issue here does not deny Guam litigants "access to Art. III courts for appellate review of local-court decisions . . . ." Guam v. Olsen, 431 U.S., at 204, 97 S.Ct., at 1780. Only the limitation on the District Court's original jurisdiction under the first clause of § 1424(a), as quoted supra, is at issue here, and there is nothing in the legislative history of § 1421b(u) to suggest that Congress intended to alter the plain language of that jurisdictional grant.
| 89
|
434 U.S. 257
98 S.Ct. 556
54 L.Ed.2d 521
Ben Earl BROWDER, Petitioner,v.DIRECTOR, DEPARTMENT OF CORRECTIONS OF ILLINOIS.
No. 76-5325.
Argued Oct. 31, 1977.
Decided Jan. 10, 1978.
Rehearing Denied Feb. 21, 1978.
See 434 U.S. 1089, 98 S.Ct. 1286.
Syllabus by the Court
After unsuccessful efforts to overturn his state-court conviction on direct appeal and state collateral attack, petitioner sought a writ of habeas corpus in a Federal District Court, which on October 21, 1975, ordered his release from respondent Corrections Director's custody unless the State retried him within 60 days. The court held no evidentiary hearing, but based its order on the habeas corpus petition, respondent's "motion to dismiss," and the state-court record. Twenty-eight days after entry of the order, respondent moved for a stay of the conditional release order and for an evidentiary hearing. The District Court granted the motion, but after a hearing ruled on January 26, 1976, that the writ of habeas corpus was properly issued. Respondent immediately filed a notice of appeal seeking review of both the October 21 and January 26 orders and the Court of Appeals reversed. Federal Rule App.Proc. 4(a) and 28 U.S.C. § 2107 require that a notice of appeal in a civil case be filed within 30 days of entry of the judgment or order from which the appeal is taken, but under Rule 4(a) the running of time for filing an appeal may be tolled by a timely motion filed in the district court pursuant to Fed.Rule Civ.Proc. 52(b) or 59. Held: The Court of Appeals lacked jurisdiction to review the original October 21 order because respondent's motion for a stay and an evidentiary hearing (in essence a motion for rehearing or reconsideration) was untimely under Rule 52(b) or 59 and hence could not toll the running of the "mandatory and jurisdictional" 30-day time limit of Rule 4(a). Pp. 246-271.
(a) The October 21 order was final for purposes of 28 U.S.C. § 2253, which provides for an appeal in a habeas corpus proceeding from a "final order." The District Court discharged its duty under 28 U.S.C. § 2243 "summarily [to] hear and determine the facts" by granting the habeas corpus petition on the state-court record, and the absence of an evidentiary hearing, whether error or not, did not render the release order nonfinal. Pp. 265-267.
(b) Habeas corpus is a civil proceeding, and Rules 52(b) and 59 were applicable. While the procedures set forth in the habeas corpus statutes apply during the pendency of such a proceeding and Fed.Rules Civ.Proc. 81(a)(2) recognizes the supremacy of such procedures over the Federal Rules, the habeas corpus statutes say nothing about the proper method for obtaining correction of asserted errors after judgment, whether on appeal or in the district court. Accordingly, the timeliness of respondent's post-judgment motion was governed by Rule 52(b) or 59. Pp. 267-271.
534 F.2d 331, reversed.
Kenneth N. Flaxman, Chicago, Ill., for petitioner.
Raymond McKoski, Chicago, Ill., for respondent.
Mr. Justice POWELL delivered the opinion of the Court.
1
This case requires us to decide whether the Court of Appeals lacked jurisdiction to review an order directing petitioner's discharge from respondent's custody because respondent's appeal was untimely. In order to resolve this question, we must consider the applicability of Fed.Rules Civ.Proc. 52(b) and 59 in habeas corpus proceedings. Because we conclude that the Court of Appeals lacked jurisdiction, we reverse.1
2
* On January 29, 1971, a teenage girl reported to Chicago police that she had been raped. She gave a physical description of her assailants to one officer and told another officer that one of her attackers was named "Browder," was about 17 years old, and lived in the 4000 block of West Monroe. On the basis of this information and further investigation, the police focused on petitioner's brother, Tyrone Browder, whose name was in the files of the Youth Division of the Chicago Police Department. A telephone conversation between a Youth Division officer and Mrs. Lucille Browder shifted the officers' suspicions from Tyrone to petitioner, and Mrs. Browder agreed to keep both her sons at home until the police arrived to talk to them. Four officers interviewed petitioner and his brother, both of whom denied knowledge of the rape. The officers arrested the brothers along with two other teenage Negro males who were present at the Browder home. The four arrestees were taken to the police station, where another officer noticed that petitioner fit the description of the assailant in a rape that had taken place on January 30. In separate lineups, each complainant identified petitioner as her assailant. After being informed of his rights as required by Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), petitioner confessed to the second rape but denied having committed the rape on January 29.
3
At his trial for the January 30 rape, petitioner moved unsuccessfully to suppress the lineup identification and the confession on grounds unrelated to the lawfulness of his arrest, which petitioner did not challenge. On direct appeal, however, petitioner argued that the identification and confession were the fruits of an unlawful arrest, effected without probable cause and without a warrant. The Illinois intermediate appellate court invoked its contemporaneous-objection rule and held that petitioner had waived this claim. Petitioner's efforts to obtain review of this claim on direct appeal to the Illinois Supreme Court and on state collateral attack fared no better.
4
Petitioner met with success at last when he petitioned for a writ of habeas corpus in Federal District Court. On October 21, 1975, the District Court issued an opinion and order directing that petitioner be released from custody unless the State retried him within 60 days. The court did not hold an evidentiary hearing, but it found on the basis of the petition, the respondent's "motion to dismiss,"2 and the state-court record that the police lacked probable cause to arrest petitioner on the evening of January 31, 1971. Unable to conclude that the taint of the unlawful arrest had been dissipated when the identification and confession were obtained, the court held that both were inadmissible.3
5
On November 18, or 28 days after entry of the District Court's order, respondent filed with the District Court a motion "to Further Stay the Execution of the Writ of Habeas Corpus and to Conduct an Evidentiary Hearing." Respondent submitted that the state-court record was inadequate and that the District Court had "erred in granting the writ without first conducting an evidentiary hearing to determine if in fact petitioner was arrested without probable cause and if so, whether his confession was thereby tainted." App. 118. Respondent cited Townsend v. Sain, 372 U.S. 293, 83 S.Ct. 745, 9 L.Ed.2d 770 (1963), and United States ex rel. McNair v. New Jersey, 492 F.2d 1307 (CA3 1974), as authority for his asserted right to an evidentiary hearing, but did not identify the source of the court's authority to consider the motion.
6
The District Court nevertheless entertained the motion, granted a stay of execution on December 8, and on December 12 set a date for an evidentiary hearing on the issue of probable cause. The court noted that the inadequacy of the state-trial record had not been raised in respondent's "motion to dismiss" but concluded "that the request for an evidentiary hearing should not be denied solely because it is untimely."4 App. 120. Petitioner moved immediately to vacate the orders granting a stay and an evidentiary hearing on the ground that the court lacked jurisdiction to enter them. Petitioner explained that because the period of time prescribed by the Federal Rules of Civil Procedure for a motion for a new trial or to alter or amend a judgment had elapsed,5 the District Court "no longer ha[d] jurisdiction to alter or amend its final order of October 21, 1975, and the orders whose vacatur is sought are void orders." Id., at 122.6
7
The evidentiary hearing was held nevertheless on January 7, 1976, and on January 26, 1976, the District Court ruled: "[T]he writ of habeas corpus was properly issued on October 21, 1975. The motion to reconsider is therefore DENIED." Id., at 161. Respondent immediately filed a notice of appeal seeking review of the order of October 21 as well as the order of January 26. Petitioner maintained, consistently, that the Court of Appeals lacked jurisdiction to review the original order granting relief, since respondent's notice of appeal was not filed within 30 days of that order, and the time for appeal had not been tolled by respondent's untimely post-judgment motion. See n. 5, supra. Even if the order of January 26 were construed as a denial of relief from judgment under Fed.Rule Civ.Proc. 60(b), as to which the appeal would have been timely, petitioner argued that the Court of Appeals would have jurisdiction only to review that order for abuse of discretion.7 Respondent disclaimed reliance on Rule 60(b), insisting instead that the order of October 21 was not a final order and that a timely appeal had been taken from the final order of January 26.8
8
The Court of Appeals did not address the question of its appellate jurisdiction except to observe, in a cryptic footnote, that it did not have to consider "whether there was an untimely appeal" on the issue whether petitioner's confession was admissible under Brown v. Illinois, 422 U.S. 590, 95 S.Ct. 2254, 45 L.Ed.2d 416 (1975). The court reversed the District Court without a published opinion, holding that the police had had probable cause to arrest petitioner. Judgt. order reported at 534 F.2d 331 (CA7 1976). Rehearing was denied. We granted certiorari. 429 U.S. 1072, 97 S.Ct. 808, 50 L.Ed.2d 789 (1977).
II
9
Under Fed.Rule App.Proc. 4(a) and 28 U.S.C. § 2107, a notice of appeal in a civil case must be filed within 30 days of entry of the judgment or order from which the appeal is taken. This 30-day time limit is "mandatory and jurisdictional." United States v. Robinson, 361 U.S. 220, 229, 80 S.Ct. 282, 288, 4 L.Ed.2d 259 (1960). See also Fallen v. United States, 378 U.S. 139, 84 S.Ct. 1689, 12 L.Ed.2d 760 (1964); Coppedge v. United States, 369 U.S. 438, 442, 82 S.Ct. 917, 919, 8 L.Ed.2d 21 (1962); United States v. Schaefer Brewing Co., 356 U.S. 227, 78 S.Ct. 674, 2 L.Ed.2d 721 (1958); Matton Steamboat Co. v. Murphy, 319 U.S. 412, 415, 63 S.Ct. 1126, 1128, 87 L.Ed. 1483 (1943); George v. Victor Talking Mach. Co., 293 U.S. 377, 379, 55 S.Ct. 229, 230, 79 L.Ed. 439 (1934). The purpose of the rule is clear: It is "to set a definite point of time when litigation shall be at an end, unless within that time the prescribed application has been made; and if it has not, to advise prospective appellees that they are freed of the appellant's demands. Any other construction of the statute would defeat its purpose." Matton Steamboat, supra, 319 U.S., at 415, 63 S.Ct., at 1128.
10
The running of time for filing a notice of appeal may be tolled, according to the terms of Rule 4(a), by a timely motion filed in the district court pursuant to Rule 52(b) or Rule 59. Respondent's motion for a stay and an evidentiary hearing was filed 28 days after the District Court's order directing that petitioner be discharged. It was untimely under the Civil Rules, see n. 5, supra, and therefore could not toll the running of time to appeal under Rule 4(a). The Court of Appeals therefore lacked jurisdiction to review the order of October 21. But respondent answers that Rules 52(b) and 59 do not apply because the order of October 21 was not final and, in any event, the Federal Rules of Civil Procedure did not apply in this habeas corpus proceeding.9 We consider each of these contentions.
11
An appeal in a habeas corpus proceeding lies from a "final order," 28 U.S.C. § 2253. The District Court's order of October 21 purported to be final, as it granted petitioner's application for a writ of habeas corpus and directed that petitioner be discharged if the State did not retry him within 60 days. Respondent contends, however, that this order was not a final order " 'leaving nothing to be done but to enforce by execution what had been determined,' Catlin v. Un ted States, 324 U.S. 229, 236, 65 S.Ct. 631, 635, 89 L.Ed. 911 (1945), because all required procedures under the Habeas Corpus Act had not been completed at the time the order was issued." Brief for Respondent 42. Respondent cites 28 U.S.C. §§ 2243 and 2254(d) and the Court's decision in Townsend v. Sain, 372 U.S. 293, 83 S.Ct. 745, 9 L.Ed.2d 770 (1963), in support of his contention that the October 21 order "cannot be considered a final order under 28 U.S.C. [§] 2253 because it left unresolved the statutorily prescribed QUESTION OF WHETHER AN EVIDENTIARY HEARING WOULD BE REQUIRED . . . ." brief for Respondent 43.
12
Respondent's position confuses error with nonfinality and fails to distinguish between the requirements of the habeas corpus statutes and the procedural means for correcting asserted error in fulfilling the statutory command. Here the District Court discharged its duty "summarily [to] hear and determine the facts," 28 U.S.C. § 2243, by granting the petition on the state-court record. See Walker v. Johnston, 312 U.S. 275, 284, 61 S.Ct. 574, 578, 85 L.Ed. 830 (1941).10 Respondent's failure to assert the need for an evidentiary hearing in his motion to dismiss did not necessarily deprive him of the right to assert the absence of a hearing as a reason for reconsideration11 or as error on appeal,12 but neither did the absence of an evidentiary hearing render the District Court order nonfinal. If respondent were correct in his theory of finality, any order later alleged to have been entered precipitately or after an incomplete hearing could be considered nonfinal for purposes of appeal. The confusion that would result from litigants' divergent views of the completeness of proceedings would be wholly at odds with the imperative that jurisdictional requirements be explicit and unambiguous.
B
13
Since the order of October 21 was a final order, the time for appeal commenced to run on that date. Respondent's notice of appeal therefore was untimely by 68 days, unless respondent's motion of November 18 tolled the time for appeal under Rule 4(a). The rationale behind the tolling principle of the Rule is the same as in traditional practice: "A timely petition for rehearing tolls the running of the [appeal] period because it operates to suspend the finality of the . . . court's judgment, pending the court's further determination whether the judgment should be modified so a to alter its adjudication of the rights of the parties." Department of Banking v. Pink, 317 U.S. 264, 266, 63 S.Ct. 233, 234, 87 L.Ed. 254 (1942) (emphasis supplied). An untimely request for rehearing does not have the same effect. Respondent seeks to avoid the conclusion that his motion was untimely under the Civil Rules, and therefore did not toll the time for appeal under Appellate Rule 4(a), by asserting that his motion was not based on Rule 52(b) or Rule 59 because the Federal Rules of Civil Procedure were not applicable in this habeas proceeding.
14
Respondent's failure to rely on a particular rule in making his motion does not suffice to make the Federal Rules inapplicable. Respondent's insistence that his motion was not based on any of the Federal Rules, but rather on the habeas corpus statutes and Townsend v. Sain, supra, parallels his theory of the nonfinality of the October 21 order and reflects his failure to recognize that the habeas corpus statutes do not prescribe postjudgment procedures. During the pendency of a habeas proceeding, the procedure indeed is set out in the habeas corpus statutes, and Fed.Rule Civ.Proc. 81(a)(2) recognizes the supremacy of the statutory procedures over the Federal Rules. But those procedures say nothing about the proper method for obtaining the correction of asserted errors after judgment, whether on appeal or in the District Court.
15
Respondent asserts that his motion of November 18 was timely because it was filed within the 30-day period allowed for appeal, as was the case in United States v. Dieter, 429 U.S. 6, 97 S.Ct. 18, 50 L.Ed.2d 8 (1976). In relying upon Dieter, respondent misconceives our holding in that case. There the Court followed United States v. Healy, 376 U.S. 75, 84 S.Ct. 553, 11 L.Ed.2d 527 (1964), and held that a timely motion for rehearing in a criminal case would toll the running of the time for appeal. In Dieter, as in Healy, no rule governed the timeliness of a motion for rehearing by the Government in a criminal case or the effect of such a motion on the time allowed for appeal. Instead " 'traditional and virtually unquestioned practice' " dictated that a timely petition for rehearing would render the original judgment nonfinal for purposes of appeal and therefore would toll the time for appeal, Dieter, supra, 429 U.S., at 8, and n. 3, 97 S.Ct., at 19, (quoting Healy, supra, 376 U.S., at 79, 84 S.Ct., at 556); and absent a rule specifying a different time limit, a petition for rehearing in a criminal case would be considered timely "when filed within the original period for review," 376 U.S., at 78, 84 S.Ct., at 555. In a civil case, however, the timeliness of a motion for rehearing or reconsideration is governed by Rule 52(b) or Rule 59, each of which allows only 10 days;13 and Rule 4(a) follows the "traditional and virtually unquestioned practice" in requiring that a motion be timely if it is to toll the time for appeal.
16
Respondent has maintained throughout that the Federal Rules of Civil Procedure are wholly inapplicable on habeas.14 We think this is a mistaken assumption. It is well settled that habeas corpus is a civil proceeding. Fisher v. Baker, 203 U.S. 174, 181, 27 S.Ct. 135, 136, 51 L.Ed. 142 (1906); Ex parte Tom Tong, 108 U.S. 556, 2 S.Ct. 871, 27 L.Ed. 826 (1883); see Heflin v. United States, 358 U.S 415, 418 n. 7, 79 S.Ct. 451, 453, 3 L.Ed.2d 407 (1959). Perhaps in recognition of the differences between general civil litigation and habeas corpus proceedings, see Harris v. Nelson, 394 U.S. 286, 293-294, and n. 4, 89 S.Ct. 1082, 1087-1088, 22 L.Ed.2d 281 (1969), the Federal Rules of Civil Procedure apply in habeas proceedings only "to the extent that the practice in such proceedings is not set forth in statutes of the United States and has heretofore conformed to the practice in civil actions." Fed.Rule Civ.Proc. 81(a)(2); see Fed.Rule Civ.Proc. 1.
17
In Harris the Court considered whether the discovery procedure authorized by Fed.Rule Civ.Proc. 33 is available in a habeas corpus proceeding. The Court concluded "that the intended scope of the Federal Rules of Civil Procedure and the history of habeas corpus procedure . . . make it clear that Rule 81(a)(2) must be read to exclude the application of Rule 33 in habeas corpus proceedings." 394 U.S., at 293, 89 S.Ct., at 1087. In Thompson v. INS, 375 U.S. 384, 84 S.Ct. 397, 11 L.Ed.2d 404 (1964), on the other hand, the Court assumed without discussion that Rules 52(b) and 59 applied in a "proceeding for admission to citizenship" in which, as in a habeas corpus proceeding, the applicability of the Civil Rules is qualified by Rule 81(a)(2).
18
Although this Court has not had occasion to hold Rules 52(b) and 59 applicable in habeas corpus proceedings, the Courts of Appeals uniformly have so held or assumed. E. g., Rothman v. United States, 508 F.2d 648, 651 (CA3 1975); Hunter v. Thomas, 173 F.2d 810 (CA10 1949) (motion for a new trial by the custodian). The combined application of the time limit in Rule 52(b) or 59 and the tolling principle of Rule 4(a) or its predecessor, Fed.Rule Civ.Proc. 73(a), has resulted in dismissal of appeals from dispositions on habeas corpus petitions. E. g., Flint v. Howard, 464 F.2d 1084, 1086 (CA1 1972). See also Fitzsimmons v. Yeager, 391 F.2d 849 (CA3) (en banc), cert. denied, 393 U.S. 868, 89 S.Ct. 154, 21 L.Ed.2d 137 (1968); Munich v. United States, 330 F.2d 774 (CA9 1964).
19
We see no reason to hold to the contrary. No other statute of the United States is addressed to the timeliness of a motion to reconsider the grant or denial of habeas corpus relief, and the practice in habeas corpus proceedings before the advent of the Federal Rules of Civil Procedure conformed to the practice in other civil proceedings with respect to the correction or reopening of a judgment. At common law, a court had the power to alter or amend its own judgments during, but not after, the term of court in which the original judgment was rendered, United States v. Mayer, 235 U.S. 55, 67, 35 S.Ct. 16, 59 L.Ed. 129 (1914); Bronson v. Schulten, 104 U.S. 410, 415, 26 L.Ed. 797 (1882); Ex parte Lange, 18 Wall. 163, 167, 21 L.Ed. 872 (1874); Basset v. United States, 9 Wall. 38, 41, 19 L.Ed. 548 (1870); and this rule was applied in habeas corpus cases, see Aderheld v. Murphy, 103 F.2d 492 (CA10 1939); Tiberg v. Warren, 192 F. 458, 463 (CA9 1911). The 1946 amendments to the Rules of Civil Procedure abolished terms of court and instead confined the power of a district court to alter or amend a final order to the time period stated in Rules 52(b) and 59. See Advisory Committee Report, 5 F.R.D. 483, 486-487 (1946). "The Rules, in abolishing the term rule did not substitute indefiniteness. On the contrary, precise times, independent of the term, were prescribed." United States v. Smith, 331 U.S. 469, 473 n. 2, 67 S.Ct. 1330, 1333, 91 L.Ed. 1610 (1947) (referring to the time limit prescribed by the Federal Rules of Criminal Procedure for new trial motions).
20
In addition to the settled conformity of habeas corpus and other civil proceedings with respect to time limits on postjudgment relief, the emphasis in the Federal Rules of Civil Procedure on "just" and "speedy" adjudication, see Fed.Rule Civ.Proc. 1, parallels the ideal of "a swift, flexible, and summary determination" of a habeas corpus petitioner's claim. Preiser v. Rodriguez, 411 U.S. 475, 495, 93 S.Ct. 1827, 1839, 36 L.Ed.2d 439 (1973). See also Fay v. Noia, 372 U.S. 391, 401-402, 83 S.Ct. 822, 828, 829, 9 L.Ed.2d 837 (1963); United States ex rel. Mattox v. Scott, 507 F.2d 919, 923 (CA7 1974); Wallace v. Heinze, 351 F.2d 39, 40 (CA9 1965), cert. denied, 384 U.S. 954, 86 S.Ct. 1574, 16 L.Ed.2d 550 (1966). Rule 59 in particular is based on an "interest in speedy disposition and finality," Silk v. Sandoval, 435 F.2d 1266, 1268 (CA1), cert. denied, 402 U.S. 1012, 91 S.Ct. 2189, 29 L.Ed.2d 435 (1971). Although some aspects of the Federal Rules of Civil Procedure may be inappropriate for habeas proceedings, see Harris v. Nelson, supra; Preiser, supra, 411 U.S., at 495-496, 93 S.Ct., at 1839-1840, the requirement of a prompt motion for reconsideration is well suited to the "special problems and character of such proceedings." Harris v. Nelson, supra, 394 U.S., at 296, 89 S.Ct., at 1089. Application of the strict time limits of Rules 52(b) and 59 to motions for reconsideration of rulings on habeas corpus petitions, then, is thoroughly consistent with the spirit of the habeas corpus statutes.
21
Because respondent failed to comply with these "mandatory and jurisdictional" time limits, the judgment of the Court of Appeals must be
22
Reversed.
23
Mr. Justice BLACKMUN, with whom Mr. Justice REHNQUIST joins, concurring.
24
I join the Court's opinion but add the comment that, under slightly altered circumstances, respondent's position might be sustained under Fed.Rule Civ.Proc. 60(b)(1) or (6). This would be done by treating the District Court's December 8, 1975, order as an order granting relief from judgment and the post-evidentiary-hearing order dated January 26, 1976, and entered January 28, as an order reinstating judgment. With a judgment thus newly entered, respondent's notice of appeal would have been timely under Fed.Rule App.Proc. 4(a) when it was filed on January 27. See Edwards v. Louisiana, 520 F.2d 321 (CA5 1975), cert. denied, 423 U.S. 1089, 96 S.Ct. 882, 47 L.Ed.2d 100 (1976).
25
I would not decline to treat the matter under Rule 60(b) merely because respondent did not label his initial motion for a new evidentiary hearing as a "Rule 60(b) motion," for that would exalt nomenclature over substance. 7 J. Moore, Federal Practice ¶ 60.42, p. 903 (1975) ("[M]islabelled moving papers may be treated as a motion under 60(b), in the absence of prejudice"). Certainly petitioner recognized in the District Court that Rule 60(b) might provide a basis for the December 8 order; petitioner moved there unsuccessfully to vacate the order on the ground that respondent's motion did not satisfy the "reasonable time" standard or meet the substantive categories of Rule 60(b). Petitioner's Memorandum of Law in Support of Motion to Vacate in No. 75 C 69 (ND Ill.) pp. 2-3; Brief for Petitioner in No. 76 1089 (CA7), p. 13.
26
The District Judge's actions, in denominating his December 8 order as one granting respondent's "motion for stay of execution of writ" and his January 28 order as one denying respondent's "motion to reconsider," are more of an obstacle. The District Judge, though noting that respondent's motion was "untimely" (App. 120), evidently intended to permit re-examination of the issue of probable cause in light of the evidence to be presented by the State at the hearing set for January 1976. An obvious way for the District Court to permit such further examination was of course to set aside the original October 21 judgment under Rule 60(b). Though the District Court made no explicit finding that the standards of Rule 60(b)(1) or (6) were satisfied, it did deny sub silentio petitioner's motion disputing the applicability of those subsections. Arguably the District Judge might not have intended to set aside the October 21 judgment until and unless the January hearing turned up evidence mandating a change in the grant of habeas. But where, as here, the District Judge acted on respondent's motion to conduct an evidentiary hearing within 48 days of the original judgment—when the possibility of granting a retroactive 30-day extension of time for taking an appeal was still open—a Court of Appeals would properly be reluctant to interpret the District Judge's ambiguous succession of orders as intending to preclude full appellate review of his habeas corpus determination. Were I sitting in review on the Court of Appeals, I might well have chosen to treat the December 8 order as one granting relief from judgment.
27
The difficulty with effecting any such rescue of the Court of Appeals' jurisdiction over the appeal from the January 28 order, is that respondent has strenuously resisted the aid. Respondent, evidently fearing that the January 28 order would be treated as an order declining to set aside judgment under Rule 60(b)—rather than as an order re-entering judgment which already had been set aside on December 8 under Rule 60(b)—and fearing that the scope of review thus would be limited to determining whether there was abuse of discretion, urged in his reply brief in the Court of Appeals, p. 3, that "[i]n point of fact respondent's motion was not filed under Rule 60, but filed pursuant to . . . 28 U.S.C. [§] 2254 and iTownsend v. Sain, 372 U.S. 293 [83 S.Ct. 745, 9 L.Ed.2d 770] (1963), as is clear from the fac[e] of the motion." And to deepen the difficulty, respondent added: "Indeed it is doubtful whether Rule 60 even applies in habeas cases." Id., at 4 n. 1. Even in this Court, respondent has disavowed any reliance on Rule 60(b), evidently preferring to bank on the possibility that the Federal Rules of Civil Procedure governing timeliness would be found not to apply in federal habeas proceedings. Brief in Opposition 7; Tr. of Oral Arg. 33-34. Under these circumstances, I see no obligation on this Court's part to attempt to rescue respondent's case on a Rule 60(b) basis.
1
In light of this disposition, it is nnecessary to reach any of the other questions presented. In addition to his jurisdictional point, petitioner contended that the Court of Appeals erred in finding the facts de novo on the issue of probable cause and in concluding that petitioner's arrest was lawful. On the latter point, petitioner maintained that the arrest of four youths in the Browder home violated the Fourth and Fourteenth Amendments' requirement of probable cause, Davis v. Mississippi, 394 U.S. 721, 89 S.Ct. 1394, 22 L.Ed.2d 676 (1969), and, even assuming the existence of probable cause, that the Fourth and Fourteenth Amendments required the police to obtain an arrest warrant before entering the Browder home to make the arrests. The parties also have disputed whether litigation of petitioner's Fourth Amendment claim on federal habeas corpus was barred either by Wainwright v. Sykes, 433 U.S. 72, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977), or by Stone v. Powell, 428 U.S. 465, 96 S.Ct. 3037, 49 L.Ed.2d 1067 (1976). Finally, petitioner questioned the validity of the Seventh Circuit's "unpublished opinion" rule. We leave these questions to another day.
2
Respondent moved to dismiss the habeas corpus petition for "failure to state a claim upon which relief may be granted, pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure." Respondent did not base his "motion to dismiss" solely on petitioner's waiver of his claim of unlawful arrest; respondent also addressed the merits of the Fourth Amendment claim.
3
The District Court held that petitioner's failure to raise the issue at trial did not bar habeas corpus relief because it found, citing Fay v. Noia, 372 U.S. 391, 83 S.Ct. 822, 9 L.Ed.2d 837 (1963), that the failure was not the result of a deliberate tactical decision to forgo the claim.
4
By untimeliness the District Court apparently meant respondent's failure to request an evidentiary hearing prior to the court's ruling on October 21. The court made no mention of the Federal Rules of Civil Procedure. The untimeliness of respondent's motion under those Rules was first mentioned in petitioner's motion to vacate the orders granting a stay and setting a date for an evidentiary hearing.
5
A motion for a new trial may be made under Rule 59(a). Rule 59(b) provides that such a motion "shall be served not later than 10 days after the entry of the judgment." Similarly, "[u]pon motion of a party made not later than 10 days after entry of judgment the court may amend its findings or make additional findings and may amend the judgment accordingly." Rule 52(b). Under Rule 59(e), "[a] motion to alter or amend the judgment shall be served not later than 10 days after entry of the judgment." Since respondent neglected to label his motion, it is impossible to tell whether the motion was based on Rule 59(a), Rule 52(b), or Rule 59(e). Rule 6(b) prohibits enlargement of the time period prescribed in all of these Rules.
Because all three Rules contain the same 10-day time limit, it is unnecessary for purposes of this decision to determine whether respondent's motion should be considered a motion for a new trial, a motion to amend or make additional findings, or a motion to alter or amend the judgment. We shall refer to the motion as one for rehearing or reconsideration, for such was the essence of the relief requested. See generally United States . Dieter, 429 U.S. 6, 8-9, 97 S.Ct. 18, 19-20, 50 L.Ed.2d 8 (1976).
6
Petitioner acknowledged that under Rule 60(b), which provides for relief from judgment under certain enumerated circumstances, "a court may modify a final order granting habeas relief after the ten day limit of Rules 52 and 59"; but petitioner argued that respondent's motion was "insufficient" under Rule 60(b). This asserted insufficiency was two-fold: The motion was not made within a "reasonable time," as required by the Rule; more significantly, it did not contain allegations that would qualify for relief under any of the Rule's six categories. Respondent merely sought to convince the court that it had erred in granting relief without holding an evidentiary hearing; respondent's purpose was to introduce additional, not newly discovered, evidence.
7
Rule 60(b), unlike Rules 52(b) and 59, does not contain a 10-day time limit. A motion for relief from judgment under Rule 60(b), however, does not toll the time for appeal from, or affect the finality of, the original judgment. See 7 J. Moore, Federal Practice ¶ 60.29, pp. 413-414 (1975). Thus, while the District Court lost jurisdiction 10 days after entry of the October 21 judgment to grant relief under Rule 52(b) or 59, its power to grant relief from judgment under Rule 60(b) still existed on January 26. A timely appeal may be taken under Fed.Rule App.Proc. 4(a) from a ruling on a Rule 60(b) motion. The Court of Appeals may review the ruling only for abuse of discretion, however, and an appeal from denial of Rule 60(b) relief does not bring up the underlying judgment for review. See Daily Mirror, Inc. v. New York News, Inc., 533 F.2d 53 (CA2), cert. denied, 429 U.S. 862, 97 S.Ct. 166, 50 L.Ed.2d 140 (1976); Brennan v. Midwestern United Life Ins. Co., 450 F.2d 999 (CA7 1971), cert. denied, 405 U.S. 921, 92 S.Ct. 957, 30 L.Ed.2d 792 (1972); 7 J. Moore, Federal Practice ¶ 60.19, p. 231; ¶ 60.30[3], pp. 430-431 (1975).
8
Respondent has insisted throughout this litigation that his motion for an evidentiary hearing was not based on Rule 60(b). This position derives in part from respondent's consistently held view that until January 26, 1976, there was no final judgment from which relief could be sought or obtained, and in part from his view that the Federal Rules of Civil Procedure are not applicable in habeas corpus proceedings. It may be that respondent desired as well to avoid the force of petitioner's arguments as to the limited scope of appellate review of a district court's disposition of a Rule 60(b) motion. See n. 7, supra. In any event, since respondent has represented to the Court of Appeals and to this Court that his motion was not based on Rule 60(b), and since the District Court did not construe it as such, we find it unnecessary to address the question whether the decision of the Court of Appeals could be sustained on the theory that despite the absence of any reference to Rule 60(b) or any of its specified grounds, the action of the District Court was reversible as an improper denial of relief under that Rule.
9
Rule 11 of the new Federal Rules Governing 28 U.S.C. § 2254 Cases provides:
"The Federal Rules of Civil Procedure, to the extent that they are not inconsistent with these rules, may be applied, when appropriate, to petitions filed under these rules."
The new Rules are applicable to cases commenced on or after February 1, 1977. They have no bearing on the instant case, which was commenced on January 8, 1975.
It is undisputed that Fed.Rule App.Proc. 4(a) is applicable to habeas corpus proceedings. See Developments in the Law—Federal Habeas Corpus, 83 Harv.L.Rev. 1038, 1192, and n. 262 (1970).
10
The Court stated in Walker v. Johnston, that there could be situations where "on the facts admitted, it may appear that, as matter of law, the prisoner is entitled to the writ and to a discharge." 312 U.S., at 284, 61 S.Ct., at 578. Several Courts of Appeals have acknowledged the power of a federal district court to discharge a habeas corpus petitioner from state custody without conducting an evidentiary hearing, when the facts are undisputed and establish a denial of petitioner's constitutional rights. E. g., Gladden v. Gidley, 337 F.2d 575, 578 (CA9 1964) (dictum); United States ex rel. Meers v. Wilkins, 326 F.2d 135, 140 (CA2 1964) (Marshall, J.); Dorsey v. Gill, 80 U.S.App.D.C. 9, 18, 148 F.2d 857, 866, cert. denied, 325 U.S. 890, 65 S.Ct. 1580, 89 L.Ed. 2003 (1945). We express no view on whether or not the District Court erred in not conducting an evidentiary hearing before issuing its order directing petitioner's conditional discharge.
11
See, e. g., Gladden, supra; Hunter v. Thomas, 173 F.2d 810 (CA10 1949).
12
See, e. g., United States ex rel. McNair v. New Jersey, 492 F.2d 1307 (CA3 1974); United States ex rel. Mitchell v. Follette, 358 F.2d 922 (CA2 1966); Gladden, supra. The better procedure, of course, would be for the custodian "to indicate, in any submission asking dismissal as a matter of law, the proceedings to which it deems itself entitled if its request should be denied." Mitchell, supra, at 929. See also McNair, supra, at 1309; Gladden, supra, at 578.
13
Respondent's contention that the "traditional and virtually unquestioned practice" in habeas corpus proceedings contemplates an evidentiary hearing in cases like this one misunderstands the import of Dieter and Healy. The Court's resort to traditional practice in those cases was predicated explicitly on the absence of a relevant statute or rule governing the tolling of the time to appeal. It had nothing to do with the practice or procedure of the underlying criminal trial. Where, as here, a rule governs the procedure in question, the problem addressed in Dieter and Healy is absent.
14
Respondent did assume, however, that Rule 12(b)(6) is applicable; he denominated his original response to the habeas petition a "motion to dismiss" explicitly based on that Rule. See n. 2, supra. Respondent's conception—which lies at the heart of his view that the lack of an evidentiary hearing rendered the order of October 21 nonfinal—seems to have been that a Rule 12(b)(6) motion is an appropriate motion in a habeas corpus proceeding, and that upon denial of such a motion, the case should proceed through answer, discovery, and trial. This view is erroneous. See Preiser v. Rodriguez, 411 U.S. 475, 496, 93 S.Ct. 1827, 1839, 36 L.Ed.2d 439 (1973). The custodian's response to a habeas corpus petition is not like a motion to dismiss. The procedure for responding to the application for a writ of habeas corpus, unlike the procedure for seeking correction of a judgment, is set forth in the habeas corpus statutes and, under Rule 81(a)(2), takes precedence over the Federal Rules.
| 89
|
434 U.S. 275
98 S.Ct. 566
54 L.Ed.2d 538
ADAMO WRECKING CO., Petitioner,v.UNITED STATES.
No. 76-911.
Argued Oct. 11, 1977.
Decided Jan. 10, 1978.
Syllabus
The Clean Air Act authorizes the Administrator of the Environmental Protection Agency (EPA) to promulgate "emission standards" for hazardous air pollutants. The emission of an air pollutant in violation of an applicable emission standard is prohibited by § 112(c)(1)(B), the knowing violation of which is made a criminal offense by § 113(c)(1)(C). Section 307(b)(1) provides that a petition for review of the Administrator's action in p omulgating an emission standard may be filed only in the Court of Appeals for the District of Columbia Circuit, and under § 307(b)(2) such action is not subject to judicial review in a civil or criminal enforcement proceeding. Petitioner was indicted for violating § 112(c)(1)(B) for allegedly having failed while demolishing a building to comply with an EPA regulation captioned "National Emission Standard for Asbestos" and specifying that a certain procedure or "work practice" be followed in demolition of buildings containing asbestos but not limiting asbestos emissions that occur during a demolition. The District Court, finding that the cited regulation was not an "emission standard" within the meaning of § 112(c), granted petitioner's motion to dismiss the indictment. The Court of Appeals reversed, holding that § 307(b) precluded petitioner from questioning in a criminal enforcement proceeding whether a regulation ostensibly promulgated under § 112(c) was in fact an emission standard. Held :
1. A defendant charged with a criminal violation under the Act may assert the defense that the "emission standard" with whose violation he is charged is not such a standard as Congress contemplated when it used the term even though that standard has not previously been subjected to a § 307(b) review procedure. Such procedure does not relieve the Government of the duty of proving, in a prosecution under § 113(c)(1)(C) that the regulation allegedly violated is an "emission standard," and a federal court in which such a prosecution is brought may determine whether or not the regulation that a defendant is alleged to have violated is an "emission standard" within the Act's meaning. From the totality of the statutory scheme, in which Congress dealt more leniently, either in terms of liability, notice, or available defenses, with other infractions of EPA orders, but, in contrast, attached stringent sanctions to the violation of "emission standards," it is clear that Congress intended to limit "emission standards" to regulations of a certain type and did not intend to empower the Administrator of EPA to make a regulation an "emission standard" by his mere designation. Yakus v. United States, 321 U.S. 414, 64 S.Ct. 660, 88 L.Ed. 834, distinguished. Pp. 278-285.
2. The District Court did not err in holding that the regulation that petitioner was charged with violating was not an emission standard. Section 112 itself distinguishes between emission standards and techniques to be used in achieving those standards, and the language of § 112(b)(1)(B) clearly supports the conclusion that an emission standard was intended to be a quantitative limit on emissions, not a work-practice standard. Recent amendments to the Act fortify that conclusion. Pp. 285-289.
6 Cir., 545 F.2d 1, reversed.
Stanley M. Lipnick, Chicago, for petitioner.
Frank H. Easterbrook, Washington, D. C., for respondent, pro hac vice, by special leave of Court.
Mr. Justice REHNQUIST delivered the opinion of the Court.
1
The Clean Air Act authorizes the Administrator of the Environmental Protection Agency to promulgate "emission standards" for hazardous air pollutants "at the level which in his judgment provides an ample margin of safety to protect the public health." § 112(b)(1)(B), 84 Stat. 1685, 42 U.S.C. § 1857c-7(b)(1)(B). The emission of an air pollutant in violation of an applicable emission standard is prohibited by § 112(c)(1)(B) of the Act, 42 U.S.C. § 1857c-7(c)(1)(B). The knowing violation of the latter section, in turn, subjects the violator to fine and imprisonment under the provisions of § 113(c)(1)(C) of the Act, 42 U.S.C. § 1857c-8(c)(1)(C) (1970 ed., Supp. V). The final piece in this statutory puzzle is § 307(b) of the Act, 84 Stat. 1708, 42 U.S.C. § 1857h-5(b) (1970 ed., Supp. V), which provides in pertinent part:
2
"(1) A petition for review of action of the Administrator in promulgating . . . any emission standard under ection 112 . . . may be filed only in the United States Court of Appeals for the District of Columbia. . . . Any such petition shall be filed within 30 days from the date of such promulgation, or approval, or after such date if such petition is based solely on grounds arising after such 30th day.
3
"(2) Action of the Administrator with respect to which review could have been obtained under paragraph (1) shall not be subject to judicial review in civil or criminal proceedings for enforcement."
4
It is within this legislative matrix that the present criminal prosecution arose.
5
Petitioner was indicted in the United States District Court for the Eastern District of Michigan for violation of § 112(c)(1)(B). The indictment alleged that petitioner, while engaged in the demolition of a building in Detroit, failed to comply with 40 CFR § 61.22(d)(2)(i) (1975). That regulation, described in its caption as a "National Emission Standard for Asbestos," specifies procedures to be followed in connection with building demolitions, but does not by its terms limit emissions of asbestos which occur during the course of a demolition. The District Court granted petitioner's motion to dismiss the indictment on the ground that no violation of § 112(c)(1)(B), necessary to establish criminal liability under § 113(c)(1)(C), had been alleged, because the cited regulation was not an "emission standard" within the meaning of § 112(c). The United States Court of Appeals for the Sixth Circuit reversed, 545 F.2d 1 (1976), holding that Congress had in § 307(b) precluded petitioner from questioning in a criminal proceeding whether a regulation ostensibly promulgated under § 112(b)(1)(B) was in fact an emission standard. We granted certiorari, 430 U.S. 953, 97 S.Ct. 1596, 51 L.Ed.2d 802 (1977), and we now reverse.
6
* We do not intend to make light of a difficult question of statutory interpretation when we say that the basic question in this case may be phrased: "When is an emission standard not an emission standard?" Petitioner contends, and the District Court agreed, that while the preclusion and exclusivity provisions of § 307(b) of the Act prevented his obtaining "judicial review" of an emission standard in this criminal proceeding, he was nonetheless entitled to claim that the administrative regulation cited in the indictment was actually not an emission standard at all. The Court of Appeals took the contrary view. It held that a regulation designated by the Administrator as an "emission standard," however different in content it might be from what Congress had contemplated when it authorized the promulgation of emission standards, was sufficient to support a criminal charge based upon § 112(c), unless it had been set aside in an appropriate proceeding commenced in the United States Court of Appeals for the District of Columbia Circuit pursuant to § 307(b).
7
The Court of Appeals in its opinion relied heavily on Yakus v. United States, 321 U.S. 414, 64 S.Ct. 660, 88 L.Ed. 834 (1944), in which this Court held that Congress in the context of criminal proceedings could require that the validity of regulatory action be challenged in a particular court at a particular time, or not at all. That case, however, does not decide this one. Because § 307(b) expressly applies only to "emission standards," we must still inquire as to the validity of the Government's underlying assumption that the Administrator's mere designation of a regulation as an "emission standard" is sufficient to foreclose any further inquiry in a criminal prosecution under § 113(c)(1)(C) of the Act. For the reasons hereafter stated, we hold that one such as respondent who is charged with a criminal violation under the Act may defend on the ground that the "emission standard" which he is charged with having violated was not an "emission standard" within the contemplation of Congress when it employed that term, even though the "emission standard" in question has not been previously reviewed under the provisions of § 307(b) of the Act.
II
8
In resolving this question, we think the statutory provisions of the Clean Air Act are far less favorable to the Government's position than were the provisions of the Emergency Price Control Act considered in Yakus. The broad language of that statute gave clear evidence of congressional intent that any actions taken by the Price Administrator under the purported authority of the designated sections of the Act should be challenged only in the Emergency Court of Appeals. Nothing has been called to our attention which would lead us to disagree with the Government's description of the judicial review provisions of that Act:
9
"Review of price control regulations was centralized in the Emergency Court of Appeals under a statute giving that court 'exclusive' jurisdiction of all non-constitutional challenges to price control regulations. The Court had no difficulty construing the statute as precluding any attack on a regulation in a criminal case (321 U.S., at 430-431, 64 S.Ct. 660), even though the statute did not explicitly mention criminal cases." Brief for United States 18.
10
This relatively simple statutory scheme contrasts with the Clean Air Act's far more complex interrelationship between the imposition of criminal sanctions and judicial review of the Administrator's actions. The statutory basis for imposition of criminal liability under Subchapter I of the Act, under which this indictment was brought, is § 113(c)(1), 84 Stat. 1687, as amended, 42 U.S.C. § 1857c-8(c)(1) (1970 ed. and Supp. V):
11
"(c)(1) Any person who knowingly—
12
"(A) violates any requirement of an applicable implementation plan (i) during any period of Federally assumed enforcement, or (ii) more than 30 days after having been notified by the Administrator under subsection (a)(1) that such person is violating such requirement, or
13
"(B) violates or fails or refuses to comply with any order issued by the Administrator under subsection (a), or
14
"(C) violates section 111(e), section 112(c), or section 119(g)
15
"shall be punished by a fine of not more than $25,000 per day of violation, or by imprisonment for not more than one year, or by both. If the conviction is for a violation committed after the first conviction of such person under this paragraph, punishment shall be by a fine of not more than $50,000 per day of violation, or by imprisonment for not more than two years, or by both."
16
Each of the three separate subsections in the quoted language creates criminal offenses. The first of them, subsection (A), deals with violations of applicable implementation plans after receipt of notice of such violation. Under § 307(b)(1), judicial review of the Administrator's action in approving or promulgating an implementation plan is not restricted to the Court of Appeals for the District of Columbia Circuit, but may be had "in the United States Court of Appeals for the appropriate circuit." But § 307(b)(2) does provide that the validity of such plans may not be reviewed in the criminal proceeding itself.
17
Subsection (C), which we discuss before turning to subsection (B), provides criminal penalties for violations of three separate sections of the Act: § 111(e), 84 Stat. 1684, 42 U.S.C. § 1857c-6(e), which prohibits operation of new stationary sources in violation of "standards of performance" promulgated by the Administrator; § 112(c), which is the offense charged in this case; and § 119(g), 88 Stat. 254, 42 U.S.C. § 1857c-10(g) (1970 ed., Supp. V),1 which requires compliance with an assortment of administrative requirements, set out in more detail below. The Administrator's actions in promulgating "standards of performance" under § 111, or "emission standards" under § 112 are, by the provisions of § 307(b)(1), made reviewable exclusively in the Court of Appeals for the District of Columbia Circuit. However, his actions under subs ctions (A), (B), and (C) of § 119(c)(2), compliance with which is required by § 119(g)(2), are reviewable "in the United States Court of Appeals for the appropriate circuit." Those subsections define the Administrator's authority to issue compliance date extensions to particular stationary sources with regard to various air pollution requirements. The preclusive provisions of § 307(b)(2) prohibit challenges to all of these administrative actions in both civil and criminal enforcement proceedings. But these restrictive review provisions do not apply to other violations of § 119(g); with regard to those offenses, the invalidity of administrative action may be raised as a defense to the extent allowable in the absence of such restrictions.
18
Finally, subsection (B) of § 113(c)(1) subjects to criminal penalties "any person who knowingly . . . violates or fails or refuses to comply with any order issued by the Administrator under subsection (a)." Subsection (a), in turn, empowers the Administrator to issue orders requiring compliance, not only with those regulations for which criminal penalties are provided under subsections (A) and (C), but also with the recordkeeping and inspection requirements of § 114, 42 U.S.C. § 1857c-9 (1970 ed., Supp. V), for which only civil penalties are ordinarily available under § 113(b)(4). The restrictive review provisions of § 307(b)(1), again do not apply to orders issued under § 113(a) or to the underlying requirements of § 114. Those administrative actions would likely be reviewable under the Administrative Procedure Act, 5 U.S.C. § 701 et seq., and any infirmity in them could be raised as a defense in enforcement proceedings to the same extent as it could be in the absence of a provision such as § 307(b)(2).
III
19
The conclusion we draw from this excursion into the complexities of the criminal sanctions provided by the Act are several. First, Congress has not chosen to prescribe either civil or criminal sanctions for violations of every rule, regulation, or order issued by the Administrator. Second, Congress, as might be expected, has imposed civil liability for a wider range of violations of the orders of the Administrator than those for which it has imposed criminal liability. Third, even where Congress has imposed criminal liability for the violation of an order of the Administrator, it has not uniformly precluded judicial challenge to the order as a defense in the criminal proceeding. Fourth, although Congress has applied the preclusion provisions of § 307(b)(2) to implementation plans approved by the Administrator, and it has in § 113(c)(1)(A) provided criminal penalties for violations of those plans, it has nonetheless required, under normal circumstances, that a violation continue for a period of 30 days after receipt of notice of the violation from the Administrator before the criminal sanction may be imposed.
20
These conclusions in no way detract from the fact that Congress has precluded judicial review of an "emission standard" in the court in which the criminal proceeding for the violation of the standard is brought. Indeed, the conclusions heighten the importance of determining what it was that Congress meant by an "emission standard," since a violation of that standard is subject to the most stringent criminal liability imposed by § 113(c)(1) of the Act: Not only is the Administrator's promulgation of the standard not subject to judicial review in the criminal proceeding, but no prior notice of violation from the Administrator is required as a condition for criminal liability.2 Since Congress chose to attach these stringent sanctions to the violation of an emission standard, in contrast to the violation of various other kinds of orders that might be issued by the Administrator, it is crucial to determine whether the Administrator's mere designation of a regulation as an "emission standard" is conclusive as to its character.
21
The stringency of the penalty imposed by Congress lends substance to petitioner's contention that Congress envisioned a particular type of regulation when it spoke of an "emission standard." The fact that Congress dealt more leniently, either in terms of liability, of notice, or of available defenses, with other infractions of the Administrator's orders suggests that it attached a peculiar importance to compliance with "emission standards." Unlike the situation in Yakus, Congress in the Clean Air Act singled out violators of this generic form of regulation, imposed criminal penalties upon them which would not be imposed upon violators of other orders of the Administrator, and precluded them from asserting defenses which might be asserted by violators of other orders of the Administrator. All of this leads us to conclude that Congress intended, within broad limits, that "emission standards" be regulations of a certain type, and that it did not empower the Administrator, after the manner of Humpty Dumpty in Through the Looking-Glass, to make a regulation an "emission standard" by his mere designation.
22
The statutory scheme supports the conclusion that § 307(b)(2), in precluding judicial review of the validity of emission standards, does not relieve the Government of the duty of proving, in a prosecution under § 113(c)(1)(C), that the regulation allegedly violated is an emission standard. Here, the District Court properly undertook to resolve that issue. In so doing, the court did not undermine the twin congressional purposes of insuring that the substantive provisions of the standard would be uniformly applied and interpreted and that the circumstances of its adoption would be quickly reviewed by a single court intimately familiar with administrative procedures. The District Court did not presume to judge the wisdom of the regulation or to consider the adequacy of the procedures which led to its promulgation, but merely concluded that it was not an emission standard.3
23
In sum, a survey of the totality of the statutory scheme does not compel agreement with the Government's contention that Congress intended that the Administrator's designation of a regulation as an emission standard should be conclusive in a criminal prosecution. At the very least, it may be said that the issue is § bject to some doubt. Under these circumstances, we adhere to the familiar rule that, "where there is ambiguity in a criminal statute, doubts are resolved in favor of the defendant." United States v. Bass, 404 U.S. 336, 348, 92 S.Ct. 515, 523, 30 L.Ed.2d 488 (1971). Cf. Rewis v. United States, 401 U.S. 808, 812, 91 S.Ct. 1056, 1059, 28 L.Ed.2d 493 (1971).
24
We conclude, therefore, that a federal court in which a criminal prosecution under § 113(c)(1)(C) of the Clean Air Act is brought may determine whether or not the regulation which the defendant is alleged to have violated is an "emission standard" within the meaning of the Act. We are aware of the possible dangers that flow from this interpretation; district courts will be importuned, under the guise of making a determination as to whether a regulation is an "emission standard," to engage in judicial review in a manner that is precluded by § 307(b)(2) of the Act. This they may not do. The narrow inquiry to be addressed by the court in a criminal prosecution is not whether the Administrator has complied with appropriate procedures in promulgating the regulation in question, or whether the particular regulation is arbitrary, capricious, or supported by the administrative record. Nor is the court to pursue any of the other familiar inquiries which arise in the course of an administrative review proceeding. The question is only whether the regulation which the defendant is alleged to have violated is on its face an "emission standard" within the broad limits of the congressional meaning of that term.
IV
25
It remains to be seen whether the District Court reached the correct conclusion with regard to the regulation here in question. In the Act, Congress has given a substantial indication of the intended meaning of the term "emission standard." Section 112 on its face distinguishes between emission standards and the techniques to be utilized in achieving those standards. Under § 112(c)(1)(B)(ii), the Administrator is empowered temporarily to exempt certain facilities from the burden of compliance with an emission standard, "if he finds that such period is necessary for the installation of controls." In specified circumstances, the President, under § 112(c)(2), has the same power, "if he finds that the technology to implement such standards is not available." Section 112(b)(2) authorizes the Administrator to issue information on "pollution control techniques."
26
Most clearly supportive of petitioner's position that a standard was intended to be a quantitative limit on emissions is this provision of § 112(b)(1)(B): "The Administrator shall establish any such standard at the level which in his judgment provides an ample margin of safety to protect the public health from such hazardous air pollutant." (Emphasis added.) All these provisions lend force to the conclusion that a standard is an quantitative "level" to be attained by use of "techniques," "controls," and "technology." This conclusion is fortified by recent amendments to the Act, by which Congress authorized the Administrator to promulgate a "design, equipment, work practice, or operational standard" when "it is not feasible to prescribe or enforce an emission standard." Clean Air Act Amendments of 1977, Pub.L. 95-95, § 110, 91 Stat. 703.4
27
This distinction, now endorsed by Congress, between "work practice standards" and "emission standards" first appears in the Administrator's own account of the development of this regulation. Although the Administrator has contended that a "work practice standard" is just another type of emission standard, the history of this regulation demonstrates that he chose to regulate work practices only when it became clear he could not regulate emissions. The regulation as originally proposed would have prohibited all visible emissions of asbestos during the course of demolitions. 36 Fed.Reg. 23242 (1971). In adopting the final form of the regulation, the Administrator concluded "that the no visible emission requirement would prohibit repair or demolition in many situations, since it would be impracticable, if not impossible, to do such work without creating visible emissions." 38 Fed.Reg. 8821 (1973). Therefore the Administrator chose to "specif[y] certain work practices" instead. Ibid.
28
The Government concedes that, prior to the 1977 Amendments, the statute was ambiguous with regard to whether a work-practice standard was properly classified as an emission standard, but argues that this Court should defer to the Administrator's construction of the Act.5 Brief for United States 32, and n. 22. While such deference is entirely appropriate under ordinary circumstances, in this case the 1977 Amendments to the Clean Air Act tend to undercut the administrative construction. The Senate Report reiterated its "strong preference for numerical emission limitations," but endorsed the addition of § 112(e) to the Act to allow the use of work-practice standards "in a very few limited cases." S.Rep.No.95-127, p. 44 (1977). Although the Committee agreed that the Amendments would authorize the regulation involved here, it refrained from endorsing the Administrator's view that the regulation had previously been authorized as an emission standard under § 112(c). The clear distinction drawn in § 112(e) between work-practice standards and emission standards practically forecloses any such inference. Cf. Red Lion Broadcasting Co. v. FCC, 395 U.S. 367, 380-381, 89 S.Ct. 1794, 1801-1802, 23 L.Ed.2d 371 (1969).
29
For all of the foregoing reasons, we conclude that the work-practice standard involved here was not an emission standard. The District Court's order dismissing the indictment was therefore proper, and the judgment of the Court of Appeals is
30
Reversed.
31
Mr. Justice POWELL, concurring.
32
If the constitutional validity of § 307(b) of the Clean Air Act had been raised by petitioner, I think it would have merited serious consideration. This section limits judicial review to the filing of a petition in the United States Court of Appeals for the District of Columbia Circuit within 30 days from the date of the promulgation by the Administrator of an emission standard. No notice is afforded a party who may be subject to criminal prosecution other than publication of the Administrator's action in the Federal Register.1 The Act in this respect is similar to the preclusion provisions of the Emergency Price Control Act before the Court in Yakus v. United States, 321 U.S. 414, 64 S.Ct. 660, 88 L.Ed. 834 (1944), and petitioner may have thought the decision in that case effectively foreclosed a due process challenge in the present case.
33
Although I express no considered judgment, I think Yakus is at least arguably distinguishable. The statute there came before the Court during World War II, and it can be viewed as a valid exercise of the war powers of Congress under Art. I, § 8, of the Constitution. Although the opinion of Mr. Chief Justice Stone is not free from ambiguity, there is language emphasizing that the price controls imposed by the Congress were a "war emergency measure." Indeed, the Government argued that the statute should be upheld under the war powers authority of Congress. Brief for United States in Yakus v. United States, O.T. 1943, No. 374, p. 35. As important as environmental concerns are to the country, they are not comparable—in terms of an emergency justifying the shortcutting of normal due process rights—to the need for national mobilization in wartime of economic as well as military activity.
34
The 30-day limitation on judicial review imposed by the Clean Air Act would afford precariously little time for many affected persons even if some adequate method of notice were afforded. It also is totally unrealistic to assume that more than a fraction of the persons and entities affected by a regulation—especially small contractors scattered across the country—would have knowledge of its promulgation or familiarity with or access to the Federal Register. Indeed, following Yakus, and apparently concerned by Mr. Justice Rutledge's eloquent dissent. Congress amended the most onerous features of the Emergency Price Control Act.2
35
I join the Court's opinion with the understanding that it implies no view as to the constitutional validity of the preclusion provisions of § 307(b) in the context of a criminal prosecution.
36
Mr. Justice STEWART, with whom Mr. Justice BRENNAN and Mr. Justice BLACKMUN join, dissenting.
37
Section 307(b)(1) of the Clean Air Act provides that a "petition for review of action of the Administrator in promulgating . . . any emission standard under section 112" may be filed only in the United States Court of Appeals for the District of Columbia Circuit within 30 days of promulgation. Section 307(b)(2) of the Act provides that an "[a]ction of the Administrator with respect to which review could have been obtained under paragraph (1) shall not be subject to judicial review in civil or criminal proceedings for enforcement." Despite these unambiguous provisions, the Court holds in this case that such an action of the Administrator shall be subject to judicial review in a criminal proceeding for enforcement of the Act, at least sometimes. Because this tampering with the plain statutory language threatens to destroy the effectiveness of the unified and expedited judicial review procedure established by Congress in the Clean Air Act, I respectfully dissent.
38
The inquiry that the Court today allows a trial court to make whether the asbestos regulation at issue is an emission standard of the type envisioned by Congress—is nothing more than an inquiry into whether the Administrator has acted beyond his statutory authority. But such an inquiry is a normal part of judicial review of agency action. 5 U.S.C. § 706(2)(C); see Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402, 415, 91 S.Ct. 814, 823, 28 L.Ed.2d 136. And it is precisely such "judicial review" of an "[a]ction of the Administrator" that Congress has, in § 307(b)(2), expressly forbidden a trial court to u dertake. There is not the slightest indication in the Act or in its legislative history that Congress, in providing for review of the Administrator's actions only in the Court of Appeals for the District of Columbia Circuit, meant nonetheless to allow some kinds of review to be available in other courts. To the contrary, Congress clearly ordained that "any review of such actions" be controlled by the provisions of § 307. S.Rep.No.91-1196, p. 41 (1970) (emphasis supplied).
39
The Court's interpretation of § 307(b)(2) also conspicuously frustrates the intent of Congress to establish a speedy and unified system of judicial review under the Act. The Court concludes that violation of the regulation involved in this case is not proscribed by §§ 112(c)(1)(B) and 113(c)(1)(C) because the regulation is not an emission standard. This interpretation of the Act would make judicial review of this regulation in the Court of Appeals for the District of Columbia Circuit impossible, since that court has statutory jurisdiction under § 307(b)(1) to review "emission standard[s]" but is not given jurisdiction to review the actions of the Administrator generally. It follows that judicial review of this action of the Administrator could be had only in other courts, either in enforcement proceedings as in this case or under the general provisions of the Administrative Procedure Act, 5 U.S.C. § 701 et seq., despite the clearly expressed congressional intent to centralize all judicial review of the Administrator's regulations. The Court's interpretation thus not only invites precisely the sort of inconsistent judicial determinations by various courts that Congress sought to prevent, but flies in the face of the congressional purpose "to maintain the integrity of the time sequences provided throughout the Act." S.Rep.No.91-1196, p. 41.
40
Finally, the Court provides no real guidance as to which aspects of an emission standard are so critical that they fall outside the scope of the exclusive judicial review procedure provided by Congress. For example, § 112 requires that an emission standard relate to a "hazardous air pollutant," and that it be set so as to provide "an ample margin of safety to protect the public health." Such express congressional mandates would seem at least as important in determining whether a regulation is a statutorily authorized emission standard as the supposed requirement that the regulation be numerical in form. Are issues such as these, therefore, now to be subject to review in trial court enforcement proceedings? The Court today has allowed the camel's nose into the tent, and I fear that the rest of the camel is almost certain to follow.
41
Since I believe that the Administrator's action in promulgating this regulation could have been reviewed in the Court of Appeals for the District of Columbia Circuit under § 307(b)(1), and that such review could have included the petitioner's claim that the Administrator's action was beyond his authority under the Act, I would hold that the petitioner was barred by the express language of § 307(b)(2) from raising that issue in the present case.*
42
Mr. Justice STEVENS, dissenting.
43
The reason Congress attached "the most stringent criminal liability," ante, at 283, to the violation of an emission standard for a "hazardous air pollutant" is that substances within that narrow category pose an especially grave threat to human health. That is also a reason why the Court should avoid a construction of the statute that would deny the Administrator the authority to regulate these poisonous substances effectively.
44
The reason the Administrator did not frame the emission standard for asbestos in numerical terms is that asbestos emissions cannot be measured numerically. For that reason, if Congress simultaneously commanded him (a) to regulate asbestos emissions by establishing and enforcing emission standards and (b) never to use any kind of standard except one framed in numerical terms, it commanded an impossible task.
45
Nothing in the language of the 1970 statute, or in its history, compels so crippling an interpretation of the Administrator's authority. On the contrary, I am persuaded (1) that the Administrator's regulation of asbestos emissions was entirely legitimate; (2) that if this conclusion were doubtful, we would nevertheless be required to respect his reasonable interpretation of the governing statute; (3) that the 1977 Amendments, fairly read, merely clarified his pre-existing authority; and (4) that the Court's reading of the statute in its current form leads to the anomalous conclusion that work-practice rules, even though properly promulgated, are entirely unenforceable. Accordingly, although I agree with the conclusions reached in Parts I, II, and III of the Court's opinion, I cannot accept Part IV's disposition of the most important issue in this case.1
46
* The regulation which petitioner is accused of violating requires that asbestos insulation and fireproofing in large buildings be watered down before the building is demolished.2 The effect of the regulation is to curtail the quantity of asbestos which is emitted into the open air during demolition. Because neither the rule nor its limiting effect is expressed in numerical terms, the Court holds that the asbestos regulation cannot be a "standard" within the meaning of § 112(b)(1) of the Clean Air Act.3 This conclusion is not compelled by the use of the word "standard"4 or by Congress' expectation that standards would normally be expressed in numerical terms; for the statute contains no express requirement that standards always be framed in such language. The question is simply whether § 112(b), which directs the Administrator to adopt regulations establishing emission standards for hazardous air pollutants, granted him the authority to promulgate the asbestos standard challenged in this case.
47
Section 112 is concerned with a few extraordinarily toxic pollutants. Only three substances, including asbestos, have been classified as "hazardous air pollutants" within the meaning of § 112.5 These pollutants are subject to special federal regulation. In § 112, Congress ordered the Administrator to identify and to regulate them without waiting for the States to develop implementation plans of their own. Thus, the procedure under § 112 contrasts markedly with the more leisurely and decentralized process of setting and enforcing the general ambient air standards.6 Congress was gravely concerned about the poisonous character of asbestos emissions when it drafted § 112.7 In fact, with regard to the hazardous air pollutants covered by this section, Congress expressed its willingness to accept the prospect of plant closings: "The standards must be set to provide an ample margin of safety to protect the public health. This could mean, effectively, that a plant would be required to close because of the absence of control techniques. It could include emission standards which allowed for no measurable emissions."8
48
In accord with Congress' expectation, the Administrator promptly listed asbestos as a hazardous air pollutant,9 and published a proposed emission standard. As first proposed, the standard would have prohibited any visible emission of asbestos in connection with various activities, including the repair or demolition of commercial and apartment buildings.10
49
If that total prohibition had been adopted, it unquestionably would have conformed to the statutory mandate. It was not adopted, however, because industry convinced the Administrator that his proposal would prevent the demolition of any large building.11 At public hearings it was demonstrated that demolition inevitably causes some emission of particulate asbestos and, further, that these emissions cannot be measured. Accordingly, instead of the severe numerical standard of zero emissions—which might have put an entire industry out of business the Administrator adopted a standard which would reduce the emission of asbestos without totally prohibiting it. Not a word in the Administrator's long and detailed explanation of the standard indicates that anyone questioned his statutory authority to promulgate this type of emission standard.12
50
The promulgated standard is entirely consistent with congressional intent. Congress had indicated a preference for numerical emission standards.13 Congress had also expressed a willingness to accept the serious economic hardships that a total prohibition of asbestos emissions would have caused. But there is no evidence that Congress intended to require the Administrator to make a choice between the extremes of closing down an entire industry and imposing no regulation on the emission of a hazardous pollutant; Congress expressed no overriding interest in using a numerical standard when industry is able to demonstrate that a less drastic control technique is available,14 and that it provides an ample margin of safety to the public health.15
51
Admittedly, Congress did not foresee the Administrator's dilemma with precision. But there is nothing unique about that circumstance. See, e. g., Mourning v. Family Publications Serv., Inc., 411 U.S. 356, 372-373, 93 S.Ct. 1652, 1662-1663, 36 L.Ed.2d 318. Indeed, there would be no need for interstitial administrative lawmaking if Congress could foresee every ramification of laws as complex as this.16 I am persuaded that the Administrator's solution was faithful to his statutory authority and that he would have misused his power if he had either failed to regulate asbestos emissions at all or unnecessarily demolished an entire industry.
II
52
The precise question presented to this Court is not whether, as an initial matter, we would regard the asbestos regulation as an "emission standard" within the meaning of § 112. Rather, the issue is whether the Administrator's answer to the question of statutory construction is "sufficiently reasonable that it should have been accepted by the reviewing courts." Train v. Natural Resources Defense Council, 421 U.S. 60, 75, 95 S.Ct. 1470, 1480, 43 L.Ed.2d 731.
53
The Administrator, who has primary responsibility for carrying out the purposes f the Clean Air Act, interpreted the term "emission standard" to include the rule before us. Contrary to the Court's implication, ante, at 287, the Administrator did not promulgate this rule "instead" of an emission standard. He unambiguously concluded that the rule was a proper emission standard.17
54
Because the statute is the Administrator's special province, we should not lightly set aside his judgment. "When faced with a problem of statutory construction, this Court shows great deference to the interpretation given the statute by the officers or agency charged with its administration. 'To sustain the Commission's application of this statutory term, we need not find that its construction is the only reasonable one, or even that it is the result we would have reached had the question arisen in the first instance in judicial proceedings.' " Udall v. Tallman, 380 U.S. 1, 16, 85 S.Ct. 792, 801, 13 L.Ed.2d 616.18
55
The Administrator began the process of promulgating this rule within weeks of § 112's enactment. 36 Fed.Reg. 23242 (1971). The wise teaching of Mr. Justice Cardozo, who spoke for the Court in Norwegian Nitrogen Co. v. United States, 288 U.S. 294, 53 S.Ct. 350, 77 L.Ed. 796, is therefore directly pertinent. He observed that an administrative "practice has peculiar weight when it involves a contemporaneous construction of a statute by the men charged with the responsibility of setting its machinery in motion; of making the parts work efficiently and smoothly while they are yet untried and new." Id., at 315, 53 S.Ct., at 358.
56
The Court holds that these well-established doctrines apply only in "ordinary circumstances." Ante, at 288. I do not understand why these rules of cons ruction should be less applicable in the unusual than in the ordinary case. Indeed, it seems to me that the extraordinary importance of regulating a hazardous air pollutant in a way that is both fair and effective provides an additional reason for respecting the Administrator's reliance on well-established doctrine, rather than a reason for reaching out to undermine his authority.19
57
In the Court's view, however, the enactment of amendments to the Clean Air Act in 1977 was an extraordinary circumstance that justifies a departure from settled principles. The Court takes the novel position that the Administrator's construction of the 1970 Amendments may be ignored because the legislative history of the 1977 Amendments did not produce an explicit endorsement of his construction. In my judgment this holding places an unwise limit on the deference which should be accorded to administrators' interpretations of the statutes they enforce. It also misreads the history of the 1977 Amendments.
III
58
The Court's conclusion ultimately rests on the 1977 Amendments. Even accepting the dubious premise that we can rely on the 95th Congress to tell us what the 93d had in mind, the 1977 Amendments do not support the Court's interpretation of the statute.
59
The history of the Amendments is instructive. In late 1974, several wrecking companies successfully challenged indictments brought against them in the Northern District of Illinois for violating the wetting requirements.20 Six weeks after the first court ruling, the Administrator proposed an amendment that would expressly confirm his authority to establish design, equipment, or work-practice standards when numerical emission limitations were not feasible.21 A major bill to amend the Clean Air Act was proposed in the 94th Congress, but the House and Senate were unable to agree. In 1977, the Senate again proposed a major revision. It included the Administrator's requested authorization. S.Rep. No. 95-127, p. 163. The Senate Report does not indicate whether the Senators considered the Illinois decisions correct or incorrect. Id., at 44. However, as introduced in the Senate, the bill clearly provided that a design, equipment, or operational standard was a species of "hazardous emission standard."22
60
When the bill emerged from conference, it no longer expressly stated that a work-practice rule was an emission standard. This change therefore lends support to the Court's view. But it is most unlikely that the Conference Committee intended to express indirect disapproval of the Administrator's reading of the 1970 Amendments. The Conference Report explained that the change in language was merely intended to "clarify" an aspect of the Senate version which was unrelated to the question whether a work-practice rule is, or had been a species of emission standard.23
61
There is only one relevant lesson that may be learned from this history: As soon as someone challenged the Administrator's power to promulgate work-practice rules of this sort, Congress made it unambiguously clear that the Administrator had that power. As the Court notes, Congress preferred numerical standards; it accepted work-practice rules only as a last resort. But the same may be said of the Administrator, who instituted a wetting requirement only after becoming convinced that no other standard was practicable.
62
It is true, as the Court says, that the Senate Report "refrained from endorsing the Administrator's view that the regulation had previously been authorized as an emission standard under § 112(c)." Ante, at 289. It is equally true that the Senate Report refrained from criticizing the Administrator's view. In short, what Congress said in 1977 sheds no light on its understanding of the original meaning of the 1970 Amendments. But what Congress did when it expressly authorized work-practice rules persuasively indicates that, if Congress in 1970 had focused on the latent ambiguity in the term "emission standard," it would have expressly granted the authority that the Administrator regarded as implicit in the statute as written.24
IV
63
A reading of the entire statute, as amended in 1977, confirms my opinion that the asbestos regulation is, and since its promulgation has been, an emission standard. If this is not true, as the Court holds today, it is unenforceable, and will continue to be unenforceable even if promulgated anew pursuant to the authority expressly set forth in the 1977 Amendments.
64
The Clean Air Act treats the Administrator's power to promulgate emission standards separately from his power to enforce them. While it is § 112(b) that gives the Administrator authority to promulgate an "emission standard," it is § 112(c) that prohibits the violation of an "emission standard." Presumably the Court's holding that a work-practice rule is not an "emission standard" applies to both of these sections. Under that holding a work-practice rule may neither be enforced nor promulgated as an emission standard. This holding will not affect the Administrator's power to promulgate work-practice rules, because the 1977 Amendments explicitly recognize that power. But Congress has not amended § 112(c), which continues to permit enforcement only of "emission standards." Accordingly, the Court's holding today has effectively made the asbestos regulation, and any other work-practice rule as well, unenforceable.
65
Ironically, therefore, the 1977 Amendments, which were intended to lift the cloud over the Administrator's authority, have actually made his exercise of that authority ineffectual. This is the kind of consequence a court risks when it substitutes its reading of a complex statute for that of the Administrator charged with the responsibility of enforcing it. Moreover, it is a consequence which would be entirely avoided by recognizing that the Administrator acted well within his statutory authority when he promulgated the asbestos regulation as an "emission standard" for hazardous air pollutants.
66
I would affirm the judgment of the Court of Appeals for the Sixth Circuit.
1
Section 119, which was in effect at the inception of this prosecution, has lately been replaced by a new § 113(d). Clean Air Act Amendments of 1977, Pub.L. 95-95, § 112, 91 Stat. 705.
2
The severity of the scheme is accentuated by the fact that persons subject to the Act, including innumerable small businesses, may protect themselves against arbitrary administrative action only by daily perusal of proposed emission standards in the Federal Register and by immediate initiation of litigation in the District of Columbia to protect their interests.
3
Such a preliminary analysis of administrative action is hardly unique. Only last Term, in E. I. du Pont de Nemours & Co. v. Train, 430 U.S. 112, 97 S.Ct. 965, 51 L.Ed.2d 204 (1977), this Court approved such an initial examination of regulations promulgated under the Federal Water Pollution Control Act. As we described the issue presented there:
"If EPA is correct that its regulations are 'effluent limitation[s] under section 301,' the regulations are directly reviewable in the Court of Appeals. If industry is correct that the regulations can only be considered § 304 guidelines, suit to review the regulations could probably be brought only in the District Court, if anywhere. Thus, the issue of jurisdiction to review the regulations is intertwined with the issue of EPA's power to issue the regulations". Id., at 124-125, 97 S.Ct., at 973.
In that case, the District Court had conducted a careful analysis, concluding that the regulations were "effluent limitations," 383 F.Supp. 1244 (WDVa.1974), aff'd, 528 F.2d 1136 (CA 4 1975), just as the District Court here concluded that this regulation is not an emission standard.
4
Since oral argument, Congress has again confirmed that the term "emission standard" is not broad enough to include a work-practice standard. Congress has amended § 307(b)(1), which originally governed review of "any emission standard under section 112," to cover "any emission standard or requirement under section 112." Pub.L.No. 95-190, § 14(a)(79), 91 Stat. 1404. As Mr. Justice STEVENS' dissent notes, post, at 306, Congress has yet to apply this recognition to the enforcement provisions of § 112(c).
5
Our Brother STEVENS quite correctly points out, post, at 302, that an administrative " 'contemporaneous construction' " of a statute is entitled to considerable weight, and it is true that the originally proposed regulations contain, with respect to some uses of asbestos, the sort of provisions which the Administrator and the Congress later designated as "work practice standards." It bears noting, however, that these regulations can only be said to define by implication the meaning of the term "emission standard." The Administrator promulgated both of them; both were denominated "emission standards"; and it is undoubtedly a fair inference that the Administrator thought each to be an "emission standard." But neither the regulations themselves nor the comments accompanying them give any indication of the Administrator's reasons for concluding that Congress, in authorizing him to promulgate "emission standards," intended to include "work practice standards" within the meaning of that term. See 38 Fed.Reg. 8820-8822, 8829-8830 (1973); 36 Fed.Reg. 23239-23240, 23242 (1971).
This lack of specific attention to the statutory authorization is especially important in light of this Court's pronouncement in Skidmore v. Swift & Co., 323 U.S. 134, 140, 65 S.Ct. 161, 164, 89 L.Ed. 124 (1944), that one factor to be considered in giving weight to an administrative ruling is "the thoroughness evident in its consideration, the validity of its reasoning, its consistency with earlier and later pronouncements, and all those factors which give it power to persuade, if lacking power to control." The Administrator's remarks with regard to
these regulations clearly demonstrate that he carefully considered available techniques and methods for controlling asbestos emissions, but they give no indication of "the validity of [his] reasoning" in concluding that he as authorized to promulgate these techniques as an "emission standard," within the statutory definition. Since this Court can only speculate as to his reasons for reaching that conclusion, the mere promulgation of a regulation, without a concomitant exegesis of the statutory authority for doing so, obviously lacks "power to persuade" as to the existence of such authority.
By contrast, the Wage and Hour Administrator in Gemsco, Inc. v. Walling, 324 U.S. 244, 65 S.Ct. 605, 89 L.Ed. 921 (1945), referred to in Brother STEVENS' dissenting opinion, post, at 299-300, n. 16, gave clear indication of his reasons for concluding that the administrative regulation prohibiting industrial homework was authorized by § 8(f) of the Fair Labor Standards Act, 52 Stat. 1065. The statute empowered the Administrator to issue orders necessary "to prevent the circumvention or evasion" of orders issued under § 8(f), and the Administrator specifically found that the practice prohibited by the order there challenged " 'furnishe[d] a ready means of circumventing or evading the minimum wage order for this Industry.' " 324 U.S., at 250, n. 9, 65 S.Ct., at 609, n. 9. In this case, the Administrator of the Environmental Protection Agency offered no comparable analysis of his statutory authority.
In Train v. Natural Resources Defense Council, 421 U.S. 60, 95 S.Ct. 1470, 43 L.Ed.2d 731 (1975), relied upon by Brother STEVENS' dissent, this Court was not persuaded by "a single sentence in the Federal Register," post, at 301 n. 18, but by our own "analysis of the structure and legislative history of the Clean Air Amendments," 421 U.S., at 86, 95 S.Ct., at 1485, which led us to a result consistent with the Administrator's prior practice. Here, our analysis mandates a contrary conclusion, which is not undercut by the Administrator's unexplained exercise of supposed authority.
Finally, as noted in n. 4, supra, Congress has not explicitly adopted the Administrator's present position with regard to the meaning of the term "emission standard," although it could easily have done so. It is true, as that dissent remarks, post, at 305-306, n. 24, that Congress has responded to concerns expressed by the Administrator. However, he first advised us of the deficiency in § 307(b) at oral argument, and even then did not suggest that under the statutory scheme as it presently exists his work-practice standards may be unenforceable. This piecemeal approach to the complexities of the Act hardly displays the "thoroughness . . . in . . . consideration," Skidmore, supra, 323 U.S. at 140, 65 S.Ct. at 164, which we would expect to find in an administrative construction.
1
Section 112(b)(1)(B) of the Act requires the Administrator to publish proposed emission standards and to hold a public hearing before standards are promulgated. But there is no more assurance that notice of proposed standards will come to the attention of the thousands of persons and entities affected than that notice of their actual promulgation will. Neither is it realistic to assume that more than a fraction of these persons and entities could afford to follow or participate in the Administrator's hearing.
2
See 321 U.S., at 460, 64 S.Ct., at 684 (Rutledge, J., dissenting); 58 Stat. 638-640, amending the Emergency Price Control Act of 1942, 56 Stat. 23; L. Jaffe Judicial Control of Administrative Action 451 (1965).
*
Because the petitioner has not raised any constitutional challenge in this case, there is no occasion to consider what limits, if any, the Due Process Clause of the Fifth Amendment imposes on the power of Congress to qualify or foreclose judicial review of agency action.
1
Nor can I join Mr. Justice STEWART's opinion, because he does not explain what test he applies to determine that § 307(b) precludes any challenge to the asbestos regulation in an enforcement proceeding. The preclusion provision applies only if the Administrator's action could have been reviewed in the Court of Appeals for the District of Columbia Circuit; and review was not available there unless the Administrator's "action" was the promulgation of an "emission standard" within the meaning of § 307(b). In short, Mr. Justice STEWART's dissent rests either on the unarticulated premise that the asbestos regulation was an "emission standard" under § 307(b), or on the application of a test not to be found in the language of the statute.
2
The emission standard for asbestos provides, in pertinent part:
"(i) Friable asbestos materials, used to insulate or fireproof any boiler, pipe, or load-supporting structural member, shall be wetted and removed from any building, structure, facility, or installation subject to this paragraph before wrecking of load-supporting structural members is commenced. The friable asbestos debris shall be wetted adequately to insure that such debris remains wet during all stages of demolition and related handling operations." 40 CFR § 61.22(d)(2)(i) (1975).
3
Section 112(b)(1) provides:
"(A) The Administrator shall, within 90 days after the date of enactment of the Clean Air Amendments of 1970, publish (and shall from time to time thereafter revise) a list which includes each hazardous air pollutant for which he intends to establish an emission standard under this section.
"(B) Within 180 days after the inclusion of any air pollutant in such list, the Administrator shall publish proposed regulations establishing emission standards or such pollutant together with a notice of a public hearing within thirty days. Not later than 180 days after such publication, the Administrator shall prescribe an emission standard for such pollutant, unless he finds, on the basis of information presented at such hearings, that such pollutant clearly is not a hazardous air pollutant. The Administrator shall establish any such standard at the level which in his judgment provides an ample margin of safety to protect the public health from such hazardous air pollutant.
"(C) Any emission standard established pursuant to this section shall become effective upon promulgation." 84 Stat. 1685, 42 U.S.C. § 1857c-7(b)(1).
4
There is no semantic reason why the word "standard" may not be used to describe the watered-down asbestos standard involved in this case. Indeed, the Court itself has previously identified a "watered down standard" that is not expressed in numerical terms, see Benton v. Maryland, 395 U.S. 784, 796, 89 S.Ct. 2056, 23 L.Ed.2d 707.
5
See 40 CFR § 61 (1975).
6
Compare § 112, 42 U.S.C. § 1857c-7, with §§ 109 and 110, 42 U.S.C. §§ 1857c-4 and 1857c-5 (1970 ed. and Supp. V).
7
See, e. g., National Air Quality Standards Act of 1970, S.Rep.No. 91-1196, p. 20 (1970).
8
This statement was made in a written summary of the conference agreement presented by Senator Muskie to the Senate, which then agreed to the Conference Report. Summary of the Provisions of Conference Agreement on the Clean Air Amendments of 1970, reprinted in Senate Committees on Public Works, A Legislative History of the Clean Air Amendments of 1970, 93d Cong., 2d Sess., 133 (Comm.Print 1974). See also id., at 150.
9
36 Fed.Reg. 5931 (1971). The three hazardous air pollutants—asbestos, beryllium, and mercury—listed by the Administrator on March 29, 1971, were all identified in the legislative history.
The Administrator's investigation fully supported Congress' suspicion that asbestos was an intolerably dangerous pollutant. Among other risks, even low-level or intermittent exposure to asbestos can cause cancer 20 or 30 years after the event. 38 Fed.Reg. 8820 (1973). For example, a form of cancer usually found almost exclusively in asbestos workers killed a woman whose only contact with the pollutant was washing the workclothes of her children, who worked for an asbestos company. See Horvitz, Asbestos and Its Environmental Impact, 3 Environmental Affairs 145, 146 (1974).
10
"(d) Visible emissions to the tmosphere of asbestos particulate matter resulting from the repair or demolition of any building or structure, other than a single-family dwelling are prohibited." 36 Fed.Reg. 23242 (1971).
11
The Administrator explained:
"The proposed standard would have prohibited visible emissions of asbestos particulate material from the repair or demolition of any building or structure other than a single-family dwelling. Comments indicated that the no visible emission requirement would prohibit repair or demolition in many situations, since it would be impracticable, if not impossible, to do such work without creating visible emissions. Accordingly, the promulgated standard specifies certain work practices which must be followed when demolishing certain buildings or structures. The standard covers institutional, industrial, and commercial buildings or structures, including apartment houses having more than four dwelling units, which contain friable asbestos material." 38 Fed.Reg. 8821 (1973).
12
There was no review of the emission standard for asbestos in the United States Court of Appeals for the District of Columbia Circuit. An untimely petition for review was dismissed without any decision on the merits. Dore Wrecking Co. v. Fri, No. 73-1686 (CADC, Aug. 1, 1973). Contrary to the implication in n. 2 of the Court's opinion, this case does not raise any question about fair notice to small businesses. The wrecking company prosecuted here was individually notified about the wetting requirement and individually responded to the notice by promising to comply fully with the regulation on all future jobs. Indeed, the company's response specifically named the location, where, according to the indictment, it subsequently committed a knowing violation of the regulation.
13
Congress apparently believed that too frequent resort to work-practice rules or equipment specifications would discourage the private market's pursuit of "the most economic, acceptable technique to apply." S.Rep.No.91-1196, at 17.
14
A summary of the conference agreement states that § 112 "could mean, effectively, that a plant would be required to close because of the absence of control techniques." See text accompanying n. 8, supra. This statement implies that the Administrator should avoid setting emission standards that will require plant closings if alternative control techni ues—including work-practice rules—can provide an ample margin of safety. It is unlikely that Congress intended, by expressing a modest preference for numerical standards, see n. 11, supra, to mandate plant closings under a numerical standard when a work-practice rule would achieve the same level of protection with less economic disruption.
15
"[T]he Administrator has determined that, in order to provide an ample margin of safety to protect the public health from asbestos, it is necessary to control emissions from major man-made sources of asbestos emissions into the atmosphere, but that it is not necessary to prohibit all emissions." 38 Fed.Reg. 8820 (1973).
16
In Gemsco, Inc. v. Walling, 324 U.S. 244, 65 S.Ct. 605, 89 L.Ed. 921, this Court approved a much more dubious substitute for a regulation that Congress surely expected to be framed in numerical terms. In that case the Administrator of the Fair Labor Standards Act decided to ban industrial homework as a way of enforcing the minimum wage. If homework were allowed to continue, the Administrator concluded, industry could readily evade wage standards. Although the Administrator lacked any express authority to regulate industrial homework, this Court approved his action, saying:
"The industry is covered by the Act. This is not disputed. The intent of Congress was to provide the authorized minimum wage for each employee so covered. Neither is this questioned. Yet it is said in substance that Congress at the same time intended to deprive the Administrator of the only means available to make its mandate effective. The construction sought would make the statute a dead letter in this industry.
"The statute itself thus gives the answer. It does so in two ways, by necessity to avoid self-nullification and by its explicit terms. The necessity should be enough. But the Act's terms reinforce the necessity's teaching. Section 8(d) requires the Administrator to 'carry into effect' the committee's approved recommendations. Section 8(f) commands him to include in the order 'such terms and conditions' as he 'finds necessary to carry out' its purposes. . . . When command is so explicit and, moreover, is reinforced by necessity in order to make it operative, nothing short of express limitation or abuse of discretion in finding that the necessity exists should undermine the action taken to execute it." Id., at 254-255, 65 S.Ct., at 612.
In the present case, necessity also demanded the promulgation of a work-practice rule if Congress' purposes were to be carried out at a cost acceptable to the Nation. Furthermore, the Administrator of the Environmental Protection Agency has similar powers "to prescribe such regulations as are necessary to carry out his functions under this chapter." § 301, 42 U.S.C. § 1857g(a).
17
In promulgating the wetting requirement, the Administrator consistently referred to it as an emission standard:
"[T]he promulgated standard specifies certain work practices which must be followed when demolishing certain buildings or structures. The standard covers institutional, industrial, and commercial buildings or structures . . .. The standard requires that the Administrator be notified at least 20 days prior to the commencement of demolition." 38 Fed.Reg. 8821 (1973).
18
In a recent case dealing with the proper construction of the Clean Air Act, the Court deferred to the view of the Administrator:
"Without going so far as to hold that the Agency's construction of the Act was the only one it permissibly could have adopted, we conclude that it was at the very least sufficiently reasonable that it should have been accepted by the reviewing courts." Train v. Natural Resources Defense Council, 421 U.S. 60, 75, 95 S.Ct. 1470, 1479, 43 L.Ed.2d 731.
See also McLaren v. Fleischer, 256 U.S. 477, 480-481, 41 S.Ct. 577, 578, 65 L.Ed. 1052. The Court rejects the Administrator's view because his "mere promulgation of a regulation" lacks power to persuade. Ante, at 288 n. 5. We have not previously required that judicial-style opinions accompany administrative actions or interpretations. In Train, supra, the Court deferred to the Administrator's interpretation of the Clean Air Act even though his interpretation had been rejected by every Circuit to consider it, 421 U.S., at 72, 95 S.Ct., at 1478, and even though the interpretation was expressed and "supported" only by a single sentence in the Federal Register. 36 Fed.Reg. 22398, 22405 (1971). The Court's "own 'analysis of the structure and legislative history,' " ante, at 288 n. 5, was limited to answering the question whether the Administrator's construction was "sufficiently reasonable" to be permissible. 421 U.S., at 75, 95 S.Ct., at 1479. Similarly, in Norwegian Nitrogen Co. v. United States, 288 U.S. 294, 53 S.Ct. 350, 77 L.Ed. 796, the Court deferred to an administrative practice that apparently was formally justified only after the practice was challenged in court. Id., at 311, 314-315, 53 S.Ct., at 356, 358.
19
There is even more reason than usual to defer to the Administrator in the present case. Here we must decide whether the asbestos-wetting regulation is an emission standard within the meaning of a statute that allows prompt appellate review of such standards in a single court and precludes later challenges. § 307(b), 42 U.S.C. § 1857h-5(b) (1970 ed., Supp. V). Congress clearly wanted speedy, uniform, and final review of hazardous emission standards. Because this regulation is an attempt to control hazardous emissions on a nationwide basis, the need for speedy, uniform, and final review is just as great here as in the case of a numerical standard. If the reasons set forth in Part IV of the Court's opinion are sufficient to sustain a collateral attack on this regulation, the preclusion statute has become almost meaningless. Of course, I do not suggest that the Administrator may take advantage of preclusion by simply "deeming" a regulation an emission standard. But when his characterization is challenged, we should try to understand the reason for the characterization before assuming that it was the product of a "Humpty Dumpty" thought process. See ante, at 283.
20
See United States v. National Wrecking Co., No. 74 CR 755 (Dec. 20, 1974); United States v. Nardi Wrecking Co., No. 74 CR 756 (Jan. 2, 1975); United States v. Harvey Wrecking Co., No. 74 CR 758 (Jan. 7, 1975); United States v. Brandenburg Demolition, Inc., No. 74 CR 757 (Jan. 31, 1975).
21
Letter from Environmental Protection Agency Administrator to Senate Public Works Committee Chairman supporting proposed amendments to the Clean Air Act (Feb. 3, 1975), excerpted in Brief for United States, App.C.
22
The bill provided, in relevant part:
"(e) For purposes of this section the Administrator may promulgate a hazardous emission standard in terms of a design, equipment, or operational standard if he determines that such standard is necessary to control emissions of a hazardous pollutant or pollutants because, in the judgment of the Administrator, they cannot or should not be emitted through a conveyance designed and constructed to emit or capture such pollutants." S.Rep.No. 95-127, p. 163 (1977).
23
The Conference Report characterized the original Senate version as follows:
"Amends section 112 of existing law to specify design, equipment, or operational standards for the control of a source of hazardous emissions, where an emission limitation is not possible or feasible to measure hazardous emissions or to capture them through appropriate devices for control." H.R.Conf.Rep.No. 95-564, p. 131 (1977); U.S.Code Cong. & Admin.News 1977, p. 1512.
It described the conference substitute in these terms:
"The House concurs in the Senate provision with an amendment to clarify that the Administrator may specify a hazardous design standard if the emission of hazardous pollutants through a conveyance designed to emit or capture such pollutants would be inconsistent with any Federal, State or local law and minor clarifying modifications in the language." Id., at 131-132, U.S.Code Cong. & Admin.News 1977, p. 1512.
24
This conclusion is buttressed by the recent amendment to the judicial review provision of the Clean Air Act. Ante, at 286 n. 4. At oral argument in the present case, Members of this Court pointed out that § 307(b) applied by its terms only to "emission standards" and suggested that the words "emission standard" should be given a narrow reading. See, e. g., Tr. of Oral Arg. 20. That was on October 11. On November 1, a technical-amendments bill was introduced in both Houses to clarify "ambiguous language" and "technical problems" in the Clean Air Act. See 123 Cong. Rec. S18372 (Nov. 1, 1977) (statement of Sen. Muskie); see also id., at H11953 (reading of H.Res. 885). The bill, which pas ed both Houses and was signed into law on November 16, treated the Court's present reading of "emission standard" as a simple error. To prevent future misreadings of the provision, Congress amended it to apply to "any emission standard or requirement " under § 112. See § 307(b)(1), 42 U.S.C. § 7607(b)(1) (1976 ed., Supp. I), as amended and recodified by the Safe Drinking Water Amendments of 1977, § 14(a)(79), 91 Stat. 1399 (emphasis added). The presence of a similar ambiguity in the enforcement provision was not pointed out at oral argument, and it was not corrected. This history indicates that Congress is patiently correcting judicial errors in construing "emission standard" narrowly.
| 78
|
434 U.S. 246
98 S.Ct. 549
54 L.Ed.2d 511
Leon Webster QUILLOIN, Appellant,v.Ardell Williams WALCOTT et al.
No. 76-6372.
Arg ed Nov. 9, 1977.
Decided Jan. 10, 1978.
Rehearing Denied March 6, 1978.
See 435 U.S. 918, 98 S.Ct. 1477.
Syllabus
Under Georgia law no adoption of a child born in wedlock is permitted without the consent of each living parent (including divorced or separated parents) who has not voluntarily surrendered rights in the child or been adjudicated an unfit parent. In contrast, §§ 74-403(3) and 74-203 of the Georgia Code provide that only the mother's consent is required for the adoption of an illegitimate child. However, the father may acquire veto authority over the adoption if he has legitimated the child pursuant to § 74-103 of the Code. These provisions were applied to deny appellant, the father of an illegitimate child, authority to prevent the adoption of the child by the husband of the child's mother. Until the adoption petition was filed, appellant had not attempted to legitimate the child, who had always been in the mother's custody and was then living with the mother and her husband, appellees. In opposing the adoption appellant, seeking to legitimate the child but not to secure custody, claimed that §§ 74-203 and 74-403(3), as applied to his case, violated the Due Process and Equal Protection Clauses of the Fourteenth Amendment. The trial court, granting the adoption on the ground that it was in the "best interests of the child" and that legitimation by appellant was not, rejected appellant's constitutional claims, and the Georgia Supreme Court affirmed. Held :
1. Under the circumstances appellant's substantive rights under the Due Process Clause were not violated by application of a "best interests of the child" standard. This is not a case in which the unwed father at any time had, or sought, custody of his child or in which the proposed adoption would place the child with a new set of parents with whom the child had never lived. Rather, the result of adoption here is to give full recognition to an existing family unit. Pp. 254-255.
2. Equal protection principles do not require that appellant's authority to veto an adoption be measured by the same standard as is applied to a divorced father, from whose interests appellant's interests are readily distinguishable. The State was not foreclosed from recognizing the difference in the extent of commitment to a child's welfare between that of appellant, an unwed father who has never shouldered any significant responsibility for the child's rearing, and that of a divorced father who at least will have borne full responsibility for his child's rearing during the period of marriage. P. 255-256.
238 Ga. 230, 232 S.E.2d 246, affirmed.
William L. Skinner, Decatur, Ga., for appellant.
Thomas F. Jones, Atlanta, Ga., for appellees, [i]pro hac vice, by special leave of Court.
Mr. Justice MARSHALL delivered the opinion of the Court.
1
The issue in this case is the constitutionality of Georgia's adoption laws as applied to deny an unwed father authority to prevent adoption of his illegitimate child. The child was born in December 1964 and has been in the custody and control of his mother, appellee Ardell Williams Walcott, for his entire life. The mother and the child's natural father, appellant Leon Webster Quilloin, never married each other or established a home together, and in September 1967 the mother married appellee Randall Walcott.1 In March 1976, she consented to adoption of the child by her husband, who immediately filed a petition for adoption. Appellant attempted to block the adoption and to secure visitation rights, but he did not seek custody or object to the child's continuing to live with appellees. Although appellant was not found to be an unfit parent the adoption was granted over his objection.
2
In Stanley v. Illinois, 405 U.S. 645, 92 S.Ct. 1208, 31 L.Ed.2d 551 (1972), this Court held that the State of Illinois was barred, as a matter of both due process and equal protection, from taking custody of the children of an unwed father, absent a hearing and a particularized finding that the father was an unfit parent. The Court concluded, on the one hand, that a father's interest in the "companionship, care, custody, and management" of his children is "cognizable and substantial," id., at 651-652, 92 S.Ct., at 1212-13, and, on the other hand, that the State's interest in caring for the children is "de minimis" if the father is in fact a fit parent, id., at 657-658, 92 S.Ct., at 1215-1216. Stanley left unresolved the degree of protection a State must afford to the rights of an unwed father in a situation, such as that presented here, in which the countervailing interests are more substantial.
3
* Generally speaking, under Georgia law a child born in wedlock cannot be adopted without the consent of each living parent who has not voluntarily surrendered rights in the child or been adjudicated an unfair parent.2 Even where the child's parents are divorced or separated at the time of the adoption proceedings, either parent may veto the adoption. In contrast, only the consent of the mother is required for adoption of an illegitimate child. Ga.Code § 74-403(3) (1975).3 To acquire the same veto authority possessed by other parents, the father of a child born out of wedlock must legitimate his offspring, either by marrying the mother and acknowledging the child as his own, § 74-101, or by obtaining a court order declaring the child legitimate and capable of inheriting from the father, § 74-103.4 But unless and until the child is legitimated, the mother is the only recognized parent and is given exclusive authority to exercise all parental prerogatives, § 74-203,5 including the power to veto adoption of the child.
4
Appellant did not petition for legitimation of his child at any time during the 11 years between the child's birth and the filing of Randall Walcott's adoption petition.6 However, in response to Walcott's petition, appellant filed an application for a writ of habeas corpus seeking visitation rights, a petition for legitimation, and an objection to the adoption.7 Shortly thereafter, appellant amended his pleadings by adding the claim that §§ 74-203 and 74-403(3) were unconstitutional as applied to his case, insofar as they denied him the rights granted to married parents, and presumed unwed fathers to be unfit as a matter of law.
5
The petitions for adoption, legitimation and writ of habeas corpus were consolidated for trial in the Superior Court of Fulton County, Ga. The court expressly stated that these matters were being tried on the basis of a consolidated record to allow "the biological father . . . a right to be heard with respect to any issue or other thing upon which he desire[s] to be heard, including his fitness as a parent . . . ."8 After receiving extensive testimony from the parties and other witnesses, the trial court found that, although the child had never been abandoned or deprived, appellant had provided support only on an irregular basis.9 Moreover, while the child previously had visited with appellant on "many occasions," and had been given toys and gifts by appellant "from time to time," the mother had recently concluded that these contacts were having a disruptive effect on the child and on appellees' entire family.10 The child himself expressed a desire to be adopted by Randall Walcott and to take on Walcott's name,11 and the court found Walcott to be a fit and proper person to adopt the child.
6
On the basis of these findings, as well as findings relating to appellees' marriage and the mother's custody of the child for all of the child's life, the trial court determined that the proposed adoption was in the "best interests of [the] child." The court concluded, further, that granting either the legitimation or the visitation rights requested by appellant would not be in the "best interests of the child," and that both should consequently be denied. The court then applied §§ 74-203 and 74-403(3) to the situation at hand, and, since appellant had failed to obtain a court order granting legitimation, he was found to lack standing to object to the adoption. Ruling that appellant's constitutional claims were without merit, the court granted the adoption petition and denied the legitimation and visitation petitions.
7
Appellant took an appeal to the Supreme Court of Georgia, claiming that §§ 74-203 and 74-403(3), as applied by the trial court to his case, violated the Equal Protection and Due Process Clauses of the Fourteenth Amendment. In particular, appellant contended that he was entitled to the same power to veto an adoption as is provided under Georgia law to married or divorced parents and to unwed mothers, and, since the trial court did not make a finding of abandonment or other unfitness on the part of appellant, see n. 2, supra, the adoption of his child should not have been allowed.
8
Over a dissent which urged that § 74-403(3) was invalid under Stanley v. Illinois, the Georgia Supreme Court affirmed the decision of the trial court. 238 Ga. 230, 232 S.E.2d 246 (1977).12 The majority relied generally on the strong state policy of rearing children in a family setting, a policy which in the court's view might be thwarted if unwed fathers were required to consent to adoptions. The court also emphasized the special force of this policy under the facts of this case, pointing out that the adoption was sought by the child's stepfather, who was part of the family unit in which the child was in fact living, and that the child's natural father had not taken steps to support or legitimate the child over a period of more than 11 years. The court noted in addition that, unlike the father in Stanley, appellant had never been a de facto member of the child's family unit.
9
Appellant brought this appeal pursuant to 28 U.S.C. § 1257(2), continuing to challenge the constitutionality of §§ 74-203 and 74-403(3) as applied to his case, and claiming that he was entitled as a matter of due process and equal protection to an absolute veto over adoption of his child, absent a finding of his unfitness as a parent. In contrast to appellant's somewhat broader statement of the issue in the Georgia Supreme Court, on this appeal he focused his equal protection claim solely on the disparate statutory treatment of his case and that of a married father.13 We noted probable jurisdiction, 431 U.S. 937, 97 S.Ct. 2647, 53 L.Ed.2d 254 (1977), and we now affirm.
II
10
At the outset, we observe that appellant does not challenge the sufficiency of the notice he received with respect to the adoption proceeding, see n. 7, supra, nor can he claim that he was deprived of a right to a hearing on his individualized interests in his child, prior to entry of the order of adoption. Although the trial court's ultimate conclusion was that appellant lacked standing to object to the adoption, this conclusion was reached only after appellant had been afforded a full hearing on his legitimation petition, at which he was given the opportunity to offer evidence on any matter he thought relevant, including his fitness as a parent. Had the trial court granted legitimation, appellant would have acquired the veto authority he is now seeking.
11
The fact that appellant was provided with a hearing on his legitimation petition is not, however, a complete answer to his attack on the constitutionality of §§ 74-203 and 74-403(3). The trial court denied appellant's petition, and thereby precluded him from gaining veto authority, on the ground that legitimation was not in the "best interests of the child"; appellant contends that he was entitled to recognition and preservation of his parental rights absent a showing of his "unfitness." Thus, the underlying issue is whether, in the circumstances of this case and in light of the authority granted by Georgia law to married fathers, appellant's interests were adequately protected by a "best interests of the child" standard. We examine this issue first under the Due Process Clause and then under the Equal Protection Clause.
A.
12
Appellees suggest that due process was not violated, regardless of the standard applied by the trial court, since any constitutionally protected interest appellant might have had was lost by his failure to petition for legitimation during the 11 years prior to filing of Randall Walcott's adoption petition. We would hesitate to rest decision on this ground, in light of the evidence in the record that appellant was not aware of the legitimation procedure until after the adoption petition was filed.14 But in any event we need not go that far, since under the circumstances of this case appellant's substantive rights were not violated by application of a "best interests of the child" standard.
13
We have recognized on numerous occasions that the relationship between parent and child is constitutionally protected. See, e. g., Wisconsin v. Yoder, 406 U.S. 205, 231-233, 92 S.Ct. 1526, 1541-42, 32 L.Ed.2d 15 (1972); Stanley v. Illinois, supra ; Meyer v. Nebraska, 262 U.S. 390, 399-401, 43 S.Ct. 625, 626-27, 67 L.Ed. 1042 (1923). "It is cardinal with us that the custody, care and nurture of the child reside first in the parents, whose primary function and freedom include preparation for obligations the state can neither supply nor hinder." Prince v. Massachusetts, 321 U.S. 158, 166, 64 S.Ct. 438, 442, 88 L.Ed. 645 (1944). And it is now firmly established 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).
14
We have little doubt that the Due Process Clause would be offended "[i]f 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." Smith v. Organization of Foster Families, 431 U.S. 816, 862-863, 97 S.Ct. 2094, 2119, 53 L.Ed.2d 14 (1977) (Stewart, J., concurring in judgment). But this is not a case in which the unwed father at any time had, or sought, actual or legal custody of his child. Nor is this a case in which the proposed adoption would place the child with a new set of parents with whom the child had never before lived. Rather, the result of the adoption in this case is to give full recognition to a family unit already in existence, a result desired by all concerned, except appellant. Whatever might be required in other situations, we cannot say that the State was required in this situation to find anything more than that the adoption, and denial of legitimation, were in the "best interests of the child."
B
15
Appellant contends that even if he is not entitled to prevail as a matter of due process, principles of equal protection require that his authority to veto an adoption be measured by the same standard that would have been applied to a married father. In particular, appellant asserts that his interests are indistinguishable from those of a married father who is separated or divorced from the mother and is no longer living with his child, and therefore the State acted impermissibly in treating his case differently. We think appellant's interests are readily distinguishable from those of a separated or divorced father, and accordingly believe that the State could permissibly give appellant less veto authority than it provides to a married father.
16
Although appellant was subject, for the years prior to these proceedings, to essentially the same child-support obligation as a married father would have had, compare § 74-202 with § 74-105 and § 30-301, he has never exercised actual or legal custody over his child, and thus has never shouldered any significant responsibility with respect to the daily supervision, education, protection, or care of the child. Appellant does not complain of his exemption from these responsibilities and, indeed, he does not even now seek custody of his child. In contrast, legal custody of children is, of course, a central aspect of the marital relationship, and even a father whose marriage has broken apart will have borne full responsibility for the rearing of his children during the period of the marriage. Under any standard of review, the State was not foreclosed from recognizing this difference in the extent of commitment to the welfare of the child.
17
For these reasons, we conclude that §§ 74-203 and 74-403(3), as applied in this case, did not deprive appellant of his asserted rights under the Due Proces and Equal Protection Clauses. The judgment of the Supreme Court of Georgia is accordingly,
18
Affirmed.
1
The child lived with his maternal grandmother for the initial period of the marriage, but moved in with appellees in 1969 and lived with them thereafter.
2
See Ga.Code §§ 74-403(1), (2) (1975). Section 74-403(1) sets forth the general rule that "no adoption shall be permitted except with the written consent of the living parents of a child." Section 74-403(2) provides that consent is not required from a parent who (1) has surrendered rights in the child to a child-placing agency or to the adoption court; (2) is found by the adoption court to have abandoned the child, or to have willfully failed for a year or longer to comply with a court-imposed support order with respect to the child; (3) has had his or her parental rights terminated by court order, see Ga.Code § 24A-3201; (4) is insane or otherwise incapacitated from giving consent; or (5) cannot be found after a diligent search has been made.
3
Section 74-403(3), which operates as an exception to the rule stated in § 74-403(1), see n. 2, supra, provides:
"Illegitimate children.—If the child be illegitimate, the consent of the mother alone shall suffice. Such consent, however, shall not be required if the mother has surrendered all of her rights to said child to a licensed child-placing agency, or to the State Department of Family and Children Services."
Sections of Ga.Code (1975) will hereinafter be referred to merely by their numbers.
4
Section 74-103 provides in full:
"A father of an illegitimate child may render the same legitimate by petitioning the superior court of the county of his residence, setting forth the name, age, and sex of such child, and also the name of the mother; and if he desires the name changed, stating the new name, and praying the legitimation of such child. Of this application the mother, if alive, shall have notice. Upon such application, presented and filed, the court may pass an order declaring said child to be legitimate, and capable of in eriting from the father in the same manner as if born in lawful wedlock, and the name by which he or she shall be known."
5
Section 74-203 states:
"The mother of an illegitimate child shall be entitled to the possession of the child, unless the father shall legitimate him as before provided. Being the only recognized parent, she may exercise all the paternal power."
In its opinion in this case, the Georgia Supreme Court indicated that the word "paternal" in the second sentence of this provision is the result of a misprint, and was instead intended to read "parental." See 238 Ga. 230, 231, 232 S.E.2d 246, 247 (1977).
6
It does appear that appellant consented to entry of his name on the child's birth certificate. See § 88-1709(d)(2). The adoption petition gave the name of the child as "Darrell Webster Quilloin," and appellant alleges in his brief that the child has always been known by that name, see Brief for Appellant 11.
7
Appellant had been notified by the State's Department of Human Resources that an adoption petition had been filed.
8
In re: Application of Randall Walcott for Adoption of Child, Adoption Case No. 8466 (Ga.Super.Ct., July 12, 1976), App. 70.
Sections 74-103, 74-203, and 74-403(3) are silent as to the appropriate procedure in the event that a petition for legitimation is filed after an adoption proceeding has already been initiated. Prior to this Court's decision in Stanley v. Illinois, 405 U.S. 645, 92 S.Ct. 1208, 31 L.Ed.2d 551 (1972), and without consideration of potential constitutional problems, the Georgia Supreme Court had concluded that an unwed father could not petition for legitimation after the mother had consented to an adoption. Smith v. Smith, 224 Ga. 442, 445-446, 162 S.E.2d 379, 383-384 (1968). But cf. Clark v. Buttry, 226 Ga. 687, 177 S.E.2d 89 (1970), aff'g, 121 Ga.App. 492, 174 S.E.2d 356. However, the Georgia Supreme Court had not had occasion to reconsider this conclusion in light of Stanley, and, in the face of appellant's constitutional challenge to §§ 74-203, 74-403(3), the trial court evidently concluded that concurrent consideration of the legitimation and adoption petitions was consistent with the tatutory provisions. See also Tr. of Hearing before Superior Court, App., 34, 51; n. 12, infra.
9
Under § 74-202, appellant had a duty to support his child, but for reasons not appearing in the record the mother never brought an action to enforce this duty. Since no court ever ordered appellant to support his child, denial of veto authority over the adoption could not have been justified on the ground of willful failure to comply with a support order. See n. 2, supra.
10
In addition to Darrell, appellees' family included a son born several years after appellees were married. The mother testified that Darrell's visits with appellant were having unhealthy effects on both children.
11
The child also expressed a desire to continue to visit with appellant on occasion after the adoption. The child's desire to be adopted, however, could not be given effect under Georgia law without divesting appellant of any parental rights he might otherwise have or acquire, including visitation rights. See § 74-414.
12
The Supreme Court addressed itself only to the constitutionality of the statutes as applied by the trial court and thus, at least for purposes of this case, accepted the trial court's construction of §§ 74-203 and 74-403(3), as allowing concurrent consideration of the adoption and legitimation petitions. See n. 8, supra.
Subsequent to the Supreme Court's decision in this case, the Georgia Legislature enacted a comprehensive revision of the State's adoption laws, which became effective January 1, 1978. 1977 Ga. Laws 201. The new law expressly gives an unwed father the right to petition for legitimation subsequent to the filing of an adoption petitio concerning his child. See Ga.Code § 74-406 (1977 Supp.). The revision also leaves intact §§ 74-103 and 74-203, and carries forward the substance of § 74-403(3), and thus appellant would not have received any greater protection under the new law than he was actually afforded by the trial court.
13
In the last paragraph of his brief, appellant raises the claim that the statutes make gender-based distinctions that violate the Equal Protection Clause. Since this claim was not presented in appellant's jurisdictional statement, we do not consider it. This Court's Rule 15(1)(c); see, e. g., Phillips Chem. Co. v. Dumas School Dist., 361 U.S. 376, 386, and n. 12, 80 S.Ct. 474, 480, 481, 4 L.Ed.2d 384 (1960).
14
At the hearing in the trial court, the following colloquy took place between appellees' counsel and appellant:
"Q Had you made any effort prior to this time [prior to the instant proceedings], during the eleven years of Darrell's life to legitimate him?
"A . . . I didn't kno that was process even you went through [sic ]." App. 58.
| 12
|
54 L.Ed.2d 563
98 S.Ct. 584
434 U.S. 308
PFIZER, INC., et al., Petitioners,v.GOVERNMENT OF INDIA et al.
No. 76-749.
Argued Nov. 1, 1977.
Decided Jan. 11, 1978.
Rehearing Denied Feb. 27, 1978.
See 435 U.S. 910, 98 S.Ct. 1462.
Syllabus by the Court
A foreign nation otherwise entitled to sue in the courts of this country held to be a "person" within the meaning of § 4 of the Clayton Act and thus to be entitled to sue for treble damages under the federal antitrust laws to the same extent as any other plaintiff. Pp. 311-320.
(a) Though no statutory provision or legislative history clearly covers the question whether a foreign nation is a "person" as the word is used in § 4 (which gives "any person" injured by antitrust violations the right to sue in district courts), Congress intended the word to have a broad and inclusive meaning, and in light of the antitrust laws' expansive remedial purpose, the Court has not narrowly construed the term. Pp. 311-313.
(b) Congress did not intend to make the treble-damages remedy available only to consumers in this country as is manifest from the inclusion of foreign corporations within the statutory definition of "person" and the fact that the antitrust laws extend to trade "with foreign countries." Pp. 313-314.
(c) To deny a foreign plaintiff injured by an antitrust violation the right to sue would defeat the two purposes of § 4: to deter violators and deprive them of the " 'fruits of their illegality,' " and "to compensate victims of antitrust violations for their injuries." Illinois Brick Co. v. Illinois, 431 U.S. 720, 746, 97 S.Ct. 2061, 2075, 52 L.Ed.2d 707. Pp. 314-315.
(d) When a foreign nation enters our commercial markets as a purchaser of goods or services, it can be victimized by anticompetitive practices just as surely as a private person or a domestic State, which in Georgia v. Evans, 316 U.S. 159, 62 S.Ct. 972, 86 L.Ed. 1346, was held to be a "person" within the meaning of the antitrust laws; and there is no reason why Congress would have wanted to deprive a foreign nation of the treble-damages remedy available to others who suffer through violations of the antitrust laws. Pp. 315-318.
(e) Foreign nations are generally entitled to prosecute civil claims in the courts of the United States upon the same basis as domestic corporations or individuals. To afford foreign nations the protection of the antitrust laws does not involve a judicial encroachment upon foreign policy, since only governments recognized by and at peace with the United States are entitled to access to this country's courts, and it is within the exclusive power of the Executive Branch to determine which nations are entitled to sue. Pp. 318-320.
550 F.2d 396, 8 Cir., affirmed.
Samuel W. Murphy, Jr., New York City, for petitioners.
Douglas V. Rigler, Washington, D. C., for respondents.
Mr. Justice STEWART delivered the opinion of the Court.
1
In this case we are asked to decide whether a foreign nation is entitled to sue in our courts for treble damages under the antitrust laws. The respondents are the Government of India, the Imperial Government of Iran, and the Republic of the Philippines. They brought separate actions in Federal District Courts against the petitioners, six pharmaceutical manufacturing companies. The actions were later consolidated for pretrial purposes in the United States District Court for the District of Minnesota.1 The complaints alleged that the petitioners had conspired to restrain and monopolize interstate and foreign trade in the manufacture, distribution, and sale of broad spectrum antibiotics, in violation of §§ 1 and 2 of the Sherman Act, ch. 647, 26 Stat. 209, as amended, 15 U.S.C. §§ 1, 2. Among the practices the petitioners allegedly engaged in were price fixing, market division, and fraud upon the United States Patent Office.2 India and Iran each alleged that it was a "sovereign foreign state with whom the United States of America maintains diplomatic relations"; the Philippines alleged that it was a "sovereign and independent government." Each respondent claimed that as a purchaser of antibiotics it had been damaged in its business or property by the alleged antitrust violations and sought treble damages under § 4 of the Clayton Act, 38 Stat. 731, 15 U.S.C. § 15, on its own behalf and on behalf of several classes of foreign purchasers of antibiotics.3
2
The petitioners asserted as an affirmative defense to the complaints that the respondents as foreign nations were not "persons" entitled to sue for treble damages under § 4. In response to pretrial motions4 the District Court held that the respondents were "persons" and refused to dismiss the actions.5 The trial court certified the question for appeal pursuant to 28 U.S.C. § 1292(b).6 The Court of Appeals for the Eighth Circuit affirmed, 550 F.2d 396, and adhered to its decision upon rehearing en banc.7 Id., at 400. We granted certiorari to resolve an important and novel question in the administration of the antitrust laws. 430 U.S. 964, 97 S.Ct. 1643, 52 L.Ed.2d 355.
3
* As the Court of Appeals observed, this case "turns on the interpretation of the statute." 550 F.2d, at 397. A treble-damages remedy for persons injured by antitrust violations was first provided in § 7 of the Sherman Act, and was re-enacted in 1914 without substantial change as § 4 of the Clayton Act.8 Section 4 provides:
4
"[A]ny 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."
5
Thus, whether a foreign nation is entitled to sue for treble damages depends upon whether it is a "person" as that word is used in § 4. There is no § atutory provision or legislative history that provides a clear answer; it seems apparent that the question was never considered at the time the Sherman and Clayton Acts were enacted.9
6
The Court has previously noted the broad scope of the remedies provided by the antitrust laws. "The Act 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; cf. Perma Life Mufflers, Inc. v. International Parts Corp., 392 U.S. 134, 138-139, 88 S.Ct. 1981, 1984, 20 L.Ed.2d 982. And the legislative history of the Sherman Act demonstrates that Congress used the phrase "any person" intending it to have its naturally broad and inclusive meaning. There was no mention in the floor debates of any more restrictive definition. Indeed, during the course of those debates the word "person" was used interchangeably with other terms even broader in connotation. For example, Senator Sherman said that the treble-damages remedy was being given to "any party," and Senator Edmunds, one of the principal draftsmen of the final bill,10 said that it established "the right of anybody to sue who chooses to sue." 21 Cong.Rec. 2569, 3148 (1890).
7
In light of the law's expansive remedial purpose, the Court has not taken a technical or semantic approach in determining who is a "person" entitled to sue for treble damages. Instead, it has said that "[t]he purpose, the subject matter, the context, the legislative history, and the executive interpretation of the statute are aids to construction which may indicate" the proper scope of the law. United States v. Cooper Corp., 312 U.S. 600, 605, 61 S.Ct. 742, 744, 85 L.Ed. 1071.
II
8
The respondents in this case possess two attributes that could arguably exclude them from the scope of the sweeping phrase "any person." They are foreign, and they are sovereign nations.
A.
9
As to the first of these attributes, the petitioners argue that, in light of statements made during the debates on the Sherman Act and the general protectionist and chauvinistic attitude evidenced by the same Congress in debating contemporaneous tariff bills, it should be inferred that the Act was intended to protect only American consumers. Yet it is clear that a foreign corporation is entitled to sue for treble damages, since the definition of "person" contained in the Sherman and Clayton Acts explicitly includes "corporations and associations existing under or authorized by . . . the laws of any foreign country." See n.9, supra. Moreover, the antitrust laws extend to trade "with foreign nations" as well as among the several States of the Union. 15 U.S.C. §§ 1, 2.11 Clearly, therefore, Congress did not intend to make the treble-damages remedy available only to consumers in our own country.12
10
In addition, the petitioners' argument confuses the ultimate purposes of the antitrust laws with the question of who can invoke their remedies. The fact that Congress' foremost concern in passing the antitrust laws was the protection of Americans does not mean that it intended to deny foreigners a remedy when they are injured by antitrust violations. Treble-damages suits by foreigners who have been victimized by antitrust violations clearly may contribute to the protection of American consumers.
11
The Court has noted that § 4 has two purposes: to deter violators and deprive them of " 'the fruits of their illegality,' " and "to compensate victims of antitrust violations for their injuries." Illinois Brick Co. v. Illinois, 431 U.S. 720, 746, 97 S.Ct. 2061, 2075, 52 L.Ed.2d 707; Brunswick Corp. v. Pueblo Bowl-O-Mat, Inc., 429 U.S. 477, 485-486, 97 S.Ct. 690, 695-96, 50 L.Ed.2d 701; Perma Life Mufflers, Inc. v. International Parts Corp., supra, 392 U.S., at 139, 88 S.Ct., at 1984. To deny a foreign plaintiff injured by an antitrust violation the right to sue would defeat these purposes. It would permit a price fixer or a monopolist to escape full liability for his illegal actions and would deny compensation to certain of his victims, merely because he happens to deal with foreign customers.
12
Moreover, an exclusion of all foreign plaintiffs would lessen the deterrent effect of treble damages. The conspiracy alleged by the respondents in this case operated domestically as well as internationally.13 If foreign plaintiffs were not permitted to seek a remedy for their antitrust injuries, persons doing business both in this country and abroad might be tempted to enter into anticompetitive conspiracies affecting American consumers in the expectation that the illegal profits they could safely extort abroad would offset any liability to plaintiffs at home. If, on the other hand, potential antitrust violators must take into account the full costs of their conduct, American consumers are benefited by the maximum deterrent effect of treble damages upon all potential violators.14
B
13
The second distinguishing characteristic of these respondents is that they are sovereign nations. The petitioners contend that the word "person" was clearly understood by Congress when it passed the Sherman Act to exclude sovereign governments. The word "person," however, is not a term of art with a fixed meaning wherever it is used, nor was it in 1890 when the Sherman Ac was passed.15 Cf. Towne v. Eisner, 245 U.S. 418, 425, 38 S.Ct. 158, 159, 62 L.Ed. 372. Indeed, this Court has expressly noted that use of the word "person" in the Sherman and Clayton Acts did not create a "hard and fast rule of exclusion" of governmental bodies. United States v. Cooper Corp., 312 U.S., at 604-605, 61 S.Ct., at 743.
14
On the two previous occasions that the Court has considered whether a sovereign government is a "person" under the antitrust laws, the mechanical rule urged by the petitioners has been rejected.16 In United States v. Cooper Corp., the United States sought to maintain a treble-damages action under § 7 of the Sherman Act for injury to its business or property. The Court considered the question whether the United States was a "person" entitled to sue for treble damages as one to be decided not "by a strict construction of the words of the Act, nor by the application of artificial canons of construction," but by analyzing the language of the statute "in the light, not only of the policy intended to be served by the enactment, but, as well, by all other available aids to construction." Id., at 605, 61 S.Ct., at 744. The Court noted that the Sherman Act provides several separate and distinct remedies: criminal prosecutions, injunctions, and seizure of property by the United States on the one hand, and suits for treble damages "granted to redress private injury" on the other. Id., at 607-608, 61 S.Ct., at 745. Statements made during the congressional debates on the Sherman and Clayton Acts provided further evidence that Congress affirmatively intended to exclude the United States from the treble-damages remedy. Id., at 611-612, 61 S.Ct., at 746-47. Thus, the Court found that the United States was not a "person" entitled to bring suit for treble damages.17
15
In Georgia v. Evans, 316 U.S. 159, 62 S.Ct. 972, 86 L.Ed. 1346, decided the very next Term, the question was whether Georgia was entitled to sue for treble damages under § 7 of the Sherman Act. The Court of Appeals, believing that the Cooper case contro led, had held that a State, like the Federal Government, was not a "person." This Court reversed, noting that Cooper did not hold "that the word 'person,' abstractly considered, could not include a governmental body." 316 U.S., at 161, 62 S.Ct., at 973. As in Cooper, the Court did not rest its decision upon a bare analysis of the word "person," but relied instead upon the entire statutory context to hold that Georgia was entitled to sue. Unlike the United States, which "had chosen for itself three potent weapons for enforcing the Act," 316 U.S., at 161, 62 S.Ct., at 973, a State had been given no other remedies to enforce the prohibitions of the law. To deprive it also of a suit for damages "would deny all redress to a State, when mulcted by a violator of the Sherman Law, merely because it is a State." Id., at 162-163, 62 S.Ct., at 974. Although the legislative history of the Sherman Act did not indicate that Congress ever considered whether a State would be entitled to sue, the Court found no reason to believe that Congress had intended to deprive a State of the remedy made available to all other victims of antitrust violations.
16
It is clear that in Georgia v. Evans the Court rejected the proposition that the word "person" as used in the antitrust laws excludes all sovereign states. And the reasoning of that case leads to the conclusion that a foreign nation, like a domestic State, is entitled to pursue the remedy of treble damages when it has been injured in its business or property by antitrust violations. When a foreign nation enters our commercial markets as a purchaser of goods or services, it can be victimized by anticompetitive practices just as surely as a private person or a domestic State. The antitrust laws provide no alternative remedies for foreign nations as they do for the United States.18 The words of Georgia v. Evans are thus equally applicable here:
17
"We can perceive no reason for believing that Congress wanted to deprive a [foreign nation], as purchaser of commodities shipped in [international] commerce, of the civil remedy of treble damages which is available to other purchasers who suffer through violation of the Act. . . . Nothing in the Act, its history, or its policy, could justify so restrictive a construction of the word 'person' in § 7 . . . . Such a construction would deny all redress to a [foreign nation], when mulcted by a violator of the Sherman Law, merely because it is a [foreign nation]." 316 U.S., at 162-163, 62 S.Ct., at 974.
III
18
The result we reach does not involve any novel concept of the jurisdiction of the federal courts. This Court has long recognized the rule that a foreign nation is generally entitled to prosecute any civil claim in the courts of the United States upon the same basis as a domestic corporation or individual might do. "To deny him this privilege would manifest a want of comity and friendly feeling." The Sapphire, 11 Wall. 164, 167, 20 L.Ed. 127; Monaco v. Mississippi, 292 U.S. 313, 323 n.2, 54 S.Ct. 745, 748, 78 L.Ed. 1282; Banco Nacional de Cuba v. Sabbatino, 376 U.S. 398, 408-409, 84 S.Ct. 923, 929-930, 11 L.Ed.2d 804; see U.S.Const., Art. III, § 2, cl. 1.19 To allow a foreign sovereign to sue in our courts for treble damages to the same extent as any other person injured by an antitrust violation is thus no more than a specific application of a long-settled general rule. To exclude foreign nations from the protections of our antitrust laws would, on the other hand, create a conspicuous exception to this rule, an exception tha could not be justified in the absence of clear legislative intent.
19
Finally, the result we reach does not require the Judiciary in any way to interfere in sensitive matters of foreign policy.20 It has long been established that only governments recognized by the United States and at peace with us are entitled to access to our courts, and that it is within the exclusive power of the Executive Branch to determine which nations are entitled to sue. Jones v. United States, 137 U.S. 202, 212, 11 S.Ct. 80, 83, 34 L.Ed. 691; Guaranty Trust Co. v. United States, 304 U.S. 126, 137-138, 58 S.Ct. 785, 791, 82 L.Ed. 1224; Banco Nacional de Cuba v. Sabbatino, supra, 376 U.S., at 408-412, 84 S.Ct., at 929-31. Nothing we decide today qualifies this established rule of complete judicial deference to the Executive Branch.21
20
We hold today only that a foreign nation otherwise entitled to sue in our courts is entitled to sue for treble damages under the antitrust laws to the same extent as any other plaintiff. Neither the fact that the respondents are foreign nor the fact that they are sovereign is reason to deny them the remedy of treble damages Congress afforded to "any person" victimized by violations of the antitrust laws.
21
Accordingly, the judgment of the Court of Appeals is
22
Affirmed.
23
Mr. Justice BLACKMUN took no part in the consideration or decision of this case.
24
Mr. Chief Justice BURGER, with whom Mr. Justice POWELL and Mr. Justice REHNQUIST join, dissenting.
25
The Court today holds that foreign nations are entitled to bring treble-damages actions in American courts against American suppliers for alleged violations of the antitrust laws; the Court reaches this extraordinary result by holding that for purposes of § 4 of the Clayton Act, foreign sovereigns are "persons," while conceding paradoxically that the question "was never considered at the time the Sherman and Clayton Acts were enacted." Ante, at 312.
26
I dissent from this undisguised exercise of legislative power, since I find the result plainly at odds not only with the language of the statute but also with its legislative history and precedents of this Court. The resolution of the delicate and important policy issue of giving more than 150 foreign countries the benefits and remedies enacted to protect American consumers should be left to the Congress and the Executive. Congressional silence over a period of almost a century provides no license for the Court to make this sensitive political decision vastly expanding the scope of the statute Congress enacted.
A.
27
"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). The relevant provisions here are § 1 of the Clayton Act in which the word "person" is defined, and § 4 in which the treble-damages remedy is conferred on those falling within the precisely enumerated categories. Section 1 provides, in relevant part:
28
"The word 'person' or 'persons' wherever used in this Act shall be deemed to include corporations and associations existing under or authorized by the laws of either the United States, the laws of any of the Territories, the laws of any State, or the laws of any foreign country."
29
Section 4 then incorporates this definition by providing:
30
"Any person who shall be injured in his business or property by reason of anything forbidden in the anti-trust 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."
31
Even on the most expansive reading, these two sections provide not the slightest indication that Congress intended to allow foreign nations to sue Americans for treble damages under our antitrust laws. The very fact that foreign sovereigns were not included within the definition of "person" despite the explicit reference to corporations and associations existing under the "laws of any foreign country" in the same definition ought to be dispositive under established doctrine governing interpretation of statutes. I therefore see no escape from the conclusion that the omission by Congress of foreign nations was deliberate.
32
The inclusion of foreign corporations within the statutory definition in no sense argues for a different characterization of Congress' intent. At the time of the passage of both the Sherman and Clayton Acts, foreign sovereigns, even when acting in their commercial capacities, were immune from suits in the courts of this country under the doctrine of sovereign immunity. See The Schooner Exchange v. McFaddon, 7 Cranch 116, 3 L.Ed. 287 (1812); Ex parte Peru, 318 U.S. 578, 63 S.Ct. 793, 87 L.Ed. 1014 (1943); Mexico v. Huffman, 324 U.S. 30, 65 S.Ct. 530, 89 L.Ed. 729 (1945). Foreign corporations, of course, had no such immunity. See, e. g., Shaw v. Quincy Mining Co., 145 U.S. 444, 453, 12 S.Ct. 935, 938, 36 L.Ed. 768 (1892); In re Hohorst, 150 U.S. 653, 662-663, 14 S.Ct. 221, 224-25, 37 L.Ed. 1211 (1893). Given that "person" as used in the Clayton and Sherman Acts refers to both antitrust plaintiffs and defendants, see United States v. Cooper Corp., 312 U.S. 600, 606, 61 S.Ct. 742, 744, 85 L.Ed. 1071 (1941), the decision of Congress to include foreign corporations while omitting foreign sovereigns from the definition most likely reflects this differential susceptibility to suit rather than any intent to benefit foreign consumers or to enlist their help in enforcing our antitrust laws. It would be little short of preposterous to think that Congress in 1890 was concerned about giving such rights to foreign nations even though it might well decide to do so now.
33
Respondents' claim that this disparate treatment cannot be justified today when foreign states effectively control many large foreign corporations and when sovereign immunity has been limited by the Foreign Sovereign Immunities Act of 1976, Pub.L. 94-583, 90 Stat. 2891, is not an argument appropriately addressed to or considered by this Court. If revisions in the statute are required to take into account contemporary circumstances, that task is properly one for Congress particularly in light of the sensitive political nature and foreign policy implications of the question.
34
The Court's reliance on the references to "for ign nations" in §§ 1 and 2 of the Sherman Act and § 1 of the Clayton Act to support an argument that Congress was specifically concerned with foreign commerce and foreign nations in 1890 when the disputed definition was enacted is similarly unavailing. As a threshold matter, congressional concern with the foreign commerce of the United States does not entail either a desire to protect foreign nations or a willingness to allow them to sue Americans for treble damages in our courts. The Webb-Pomerene Act, ch. 50, 40 Stat. 516, as amended, 15 U.S.C. § 61 et seq., passed within only a few years of the Clayton Act, indicates that such a concern may instead be served at the expense of foreign states and consumers.1
35
In any event, the relevant language of §§ 1 and 2 of the Sherman Act, as subsequently incorporated in the Clayton Act, does not support respondents' contention. The reference to "commerce . . . with foreign nations" appeared only in the final draft of the Act as reported by the Senate Judiciary Committee, and replaced language in the numerous earlier drafts of Senator Sherman to the following effect:
36
"That all arrangements, contracts, agreements, trusts, or combinations between persons or corporations made with a view or which tend to prevent full and free competition in the production, manufacture, or sale of articles of domestic growth or production, or of the sale of articles imported into the United States, . . . are hereby declared to be against public policy, unlawful and void . . . ." 21 Cong.Rec. 2598 (1890) (first draft) (emphasis added).2
37
The focus of this language on protecting domestic consumers from anticompetitive practices affecting the importation of goods into the United States could not be more clear, nor could the absence of any attention to affording comparable protection for foreign consumers of American exports. The language substituted by the Judiciary Committee—language tracking that appearing in the Commerce Clause—was chosen to mollify the objections of those Senators who felt the proposed statute exceeded Congress' constitutional power to regulate commerce, see, e. g., id., at 2600, 3147 (remarks of Sen. George); id., at 2728 (remarks of Sen. Edmunds); id., at 3149 (remarks of Sen. Reagan); cf. Apex Hosiery Co. v. Leader, 310 U.S. 469, 495, 60 S.Ct. 982, 993, 84 L.Ed. 1311 (1940); Atlantic Cleaners & Dyers, Inc. v. United States, 286 U.S. 427, 434-435, 52 S.Ct. 607, 609, 76 L.Ed. 1204 (1932); that language was not intended to work any substantive change in the focus or scope of the Act. See United States v. Wise, 370 U.S. 405, 420, 82 S.Ct. 1354, 1363, 8 L.Ed.2d 590 (1962) (Harlan, J., concurring). To read this language as evidencing an intent to protect foreign nations or foreign consumers simply belies its lineage.
B
38
The legislative history of the treble-damages remedy gives no more support to the result reached by the court than does the language of the statute. As five of the eight judges of the Court of Appeals concluded—and indeed as the majority here concedes, ante, at 312—"Congress, in passing § 4 of the Clayton Act 15 U.S.C. § 15, gave no consideration nor did it have any legislative intent whatsoever, concerning the question of whether foreign governments are 'persons' under the Act." 550 F.2d 396, 399 (Ross, J., concurring) (emphasis added). The conversion of this silence in 1890 into an affirmative intent in 1978 is indeed startling.
39
The failure of Congress even to consider the question of granting treble-damages remedies to foreign nations provides the clearest possible argument for leaving the question to the same political process that gave birth to the Sherman and Clayton Acts. To rely on the absence of any express congressional intent to exclude foreign nations from taking advantage of the treble-damages remedy is a remarkable innovation in statutory interpretation. It is a strange way to camouflage the unassailable conclusion that the legislative history offers no affirmative support for the result reached today. Further, as this Court observed just last Term, the legislative history of the treble-damages remedy which does exist "indicate[s] that it was conceived of primarily as a remedy for '[t]he people of the United States as individuals,' especially consumers." Brunswick Corp. v. Pueblo Bowl-O-Mat, Inc., 429 U.S. 477, 486 n. 10, 97 S.Ct. 690, 696, 50 L.Ed.2d 701 (1977), quoting from 21 Cong.Rec. 1767-1768 (1890) (remarks of Sen. George). What we so recently saw as primarily a remedy for American consumers is now extended to all the nations of the world—a boon Congress might choose to grant but has not done so.
C
40
In the absence of any helpful language in the statute or any affirmative legislative history, the Court attempts to base its expansive reading of "person" on Mr. Justice Frankfurter's decision in Georgia v. Evans, 316 U.S. 159, 62 S.Ct. 972, 86 L.Ed. 1346 (1942), granting the State of Georgia and all other domestic States the right to sue for treble damages. I fail to see how that result dictates this one.
41
In Georgia v. Evans, Mr. Justice Frankfurter concluded that absent the right to sue for treble damages, our States would be left without any remedy against violators of the antitrust laws. The Court today analogizes the situation of foreign nations to that of the States in Evans, and finds the analogy dispositive. When viewed solely in terms of the remedies specifically provided by the antitrust laws, the plight of domestic States and foreign sovereigns may, in this limited respect, be roughly comparable. But the very limited scope of the inquiry in Evans precludes consideration of the manifold and patently obvious respects in which foreign nations and our own domestic States differ—cogent differences bearing on the question under consideration here, though obviously not at all on the Court's inquiry in Evans.
42
First, the disparate treatment of foreign and domestic States is a legitimate source of concern only on the assumption that Congress in passing the Sherman Act intended—or even contemplated that these two categories of political entities were so essentially alike that they were entitled to the same remedies against anticompetitive conduct. As I have already suggested, this assumption derives no support from either the statutory language or anything in the legislative history. Although our own States were also not the expressly intended beneficiaries of the Act, to deny them the treble-damages remedy would, as Mr. Justice Frankfurter perceived, have the unmistakable result of effectively denying surrogate protection to American citizens in whose behalf the State acts and for whose benefit the Sherman Act was enacted. Thus, while the result in Evans is a tolerable taking of certain liberties with the literal language of the statute, the congruence of that result with Congress' purpose can scarcely be doubted. This same logic, however, does not even remotely apply to the situation of foreign nations.
43
Second, it simply is not the case that absent a treble-damages remedy, foreign nations would be denied any effective means of redress against anticompetitive practices by American corporations. Unlike our own States, whose freedom of action in this regard is constrained by the Commerce and Supremacy Clauses, foreign sovereigns remain free to enact and enforce their own comprehensive antitrust statutes and to impose other more drastic sanctions on offending corporations. One need look no further than the laws of respondents India and the Philippines for evidence that such remedies are possessed by foreign nations. And indeed, amicus West Germany has demonstrated that such laws are not mere idle enactments. During the pendency of this action, it notified petitioner Pfizer that a proceeding under German antitrust law was being commenced involving some of the same allegations which are made in the complaint filed by respondents in their treble-damages actions in this country.
44
While problems of jurisdiction and discovery may render antitrust actions against foreign defendants somewhat more problematic than a suit against a corporation in its own country, the limited experience of the Common Market nations in applying their antitrust laws to foreign corporations suggests that such difficulties are certainly not insoluble and are likely exaggerated. See, e. g., Europemballage Corp. v. E. C. Commission, 12 Comm.Mkt.L.R. 199 (1973); Commercial Solvents Corp. v. E. C. Commission, 13 Comm.Mkt.L.R. 309 (1974). And, as the presently existing treaty between the United States and West Germany indicates, reciprocal agreements providing for cooperation in antitrust investigations undertaken by foreign nations are an effective means of mitigating the rigors of discovery in foreign jurisdictions. See Agreement Relating to Mutual Cooperation Regarding Restrictive Business Practices, entered into force Sept. 11, 1976. United States—Federal Republic of Germany, [1976] 27 U.S.T. 1956, T.I.A.S. No. 8291.
45
Third, it takes little imagination to realize the dramatic and very real differences in terms of coercive economic power and political interests which distinguish our own States from foreign sovereigns. The international price fixing, boycotts, and other current anticompetitive practices undertaken by some Middle Eastern nations are illustrative of the weapons in the arsenals of foreign nations which no domestic State could ever employ. Nor do our domestic States, in any meaningful sense, have the conflicting economic interests or antagonistic ideologies which characterize and enliven the relations among nation states.
46
Viewed in this light, it is clear that the decision to allow foreign sovereigns to seek treble damages from Americans and to rely on standards of competitive behavior in fixing liability which those very same nations flout in their business relationships with this country is a decision dramatically different from the one Mr. Justice Frankfurter faced in Evans. To consider the result reached there as to Georgia determinative of the result here is to substitute a "hard and fast rule of inclusion" for the "hard and fast rule of exclusion" which Justices Frankfurter and Roberts eschewed in Evans and Cooper, respectively. Only the most mechanical reading of our prior precedent will justify such a result.
47
Further, the result reached by the Court today confronts us with the anomaly that while the United States Government cannot sue for treble damages under our antitrust laws, other nations are free to engage in the most flagrant kinds of combinations for price fixing, totally at odds with our antitrust concepts, and nevertheless are given the right by the Court to sue American suppliers in American courts for treble damages plus attorneys' fees. It is no answer to say that the United States needs no civil treble-damages remedy since it has reserved for itself the power to pursue criminal remedies against American suppliers for antitrust violations. What that response overlooks is that our criminal antitrus remedies hardly compare with the infinite array of political and commercial weapons available to a foreign nation for use against the United States itself or against American producers and suppliers. This, again, underscores how completely the problem is a matter of policy to be resolved by the political branches without the intrusion of the Judiciary.
D
48
Finally, the Court's emphasis on the deterrent effects of treble-damages actions by foreign sovereigns also will not withstand critical scrutiny. We acknowledged in Brunswick Corp. v. Pueblo Bowl-O-Mat, Inc., 429 U.S., at 485-486, 97 S.Ct., at 696, that while treble damages do play an important role in deterring wrongdoers, "the treble-damages provision . . . is designed primarily as a remedy." To allow foreign sovereigns who were clearly not the intended beneficiaries of this remedy to nevertheless invoke it reverses this priority of purposes, and does so solely on the basis of this Court's uninformed speculation about some possible beneficial consequences to American consumers of this "maximum deterrent." Ante, at 315. In areas of far less political delicacy, we have been unwilling to expand the scope of the right to sue under the antitrust laws without express congressional intent to do so. See, e. g., Hawaii v. Standard Oil Co., 405 U.S. 251, 264-265, 92 S.Ct. 885, 892, 31 L.Ed.2d 184 (1972).3
49
For these reasons I dissent from the Court's intrusion into the legislative sphere.
50
Mr. Justice POWELL, dissenting.
51
I join THE CHIEF JUSTICE in his dissent, and add a word to emphasize my difficulty with the Court's decision.
52
The issue is whether the antitrust laws of this country are to be made available for treble-damages suits against American businesses by the governments of other countries. The Court resolves this issue in favor of such governments by construing the word "person" in § 4 of the Clayton Act to include "foreign governments." No one argues seriously that this was the intent of Congress in 1890 when the term "person" was included in the Act. Indeed, the Court acknowledges that this "question was never considered at the time the Sherman and Clayton Acts were enacted." Ante, at 312.
53
Despite this conclusion as to the absence of any congressional consideration, the inviting possibility of treble damages is extended today by judicial action to the sovereign nations of the world.1 With minor exceptions, the United States recognizes the governments of all of these nations. We may assume that most of them have no equivalent of our antitrust laws and would be unlikely to afford reciprocal opportunities to the United States to sue and recover damages in their courts.
54
The Court has resolved a major policy question. As the Acting Solicitor General stated in his Memorandum for the United States as Amicus Curiae, filed March 23, 1977:
55
"Whether foreign sovereigns are 'persons' entitled to sue under Section 4 depends largely upon the general policy reflected in the statute, and the general policy of the United States opening its courts to foreign sovereigns."
56
I had thought it was accepted doctrine that questions of "general policy"—especially with respect to foreign sovereigns and absent explicit legislative authority—are beyond the province of the Judicial Branch. If the statute truly reflected a general policy that dictated the inclusion of foreign sovereigns, the Court might be justified in reaching today's result. In Georgia v. Evans, 316 U.S. 159, 62 S.Ct. 972, 86 L.Ed. 1346 (1942), a clear policy to protect the States of the Union was reflected in the antitrust laws and in the legislative history. The Court could "perceive no reason for believing that Congress wanted to deprive a State, as purchaser of commodities shipped in interstate commerce, of the civil remedy of treble damages which is available to other purchasers who suffer through violation of the Act." Id., at 162, 62 S.Ct., at 974.
57
Unlike the majority, I do not believe the same can be said with respect to foreign sovereigns. See ante, at 318. It is not only the absence of specific congressional intent to include them. It is that the predicate for the Court's approach in Georgia v. Evans is not present in the case before us. The solicitude that we assume Congress has for the welfare of each of the United States, especially when the subject matter of legislation largely has been removed from the competence of the States and has been entrusted to the United States, cannot be assumed with respect to foreign nations. Putting it differently, it was not illogical for the Evans Court to include the States within the reach of § 4, but it is a quantum leap to include foreign governments.
58
A court, without the benefit of legislative hearings that would illuminate the policy considerations if the question were left to Congress, is not competent in my opinion to resolve this question in the best interest of our country. It is regrettable that the Court today finds it necessary to rush to this essentially legislative judgment.2
1
Similar actions were also brought by Spain, South Korea, West Germany, Colombia, Kuwait, and the Republic of Vietnam. Vietnam was a party to this case in the Court of Appeals and was named as a respondent in the petition for certiorari. Subsequent to the filing of the petition Vietnam's complaint was dismissed by the District Court on the ground that the United States no longer recognized the Government of Vietnam; the dismissal was affirmed by the Court of Appeals. Republic of Vietnam v. Pfizer Inc., 556 F.2d 892 (C.A.8). Vietnam as not participated as a party in this Court. Some of the other suits have been withdrawn and the rest are pending.
2
The antibiotic antitrust litigation originated with a proceeding brought by the Federal Trade Commission which resulted in an order requiring petitioners Pfizer and American Cyanamid to grant domestic applicants licenses under their patents for broad spectrum antibiotics. See Charles Pfizer & Co. v. FTC, 401 F.2d 574 (C.A.6). Criminal antitrust proceedings against petitioners Pfizer, American Cyanamid, and Bristol-Myers were eventually dismissed. United States v. Chas. Pfizer & Co., 367 F.Supp. 91 (S.D.N.Y.); see also United States v. Chas. Pfizer & Co., 426 F.2d 32 (C.A.2), modified, 437 F.2d 957, aff'd by an equally divided Court, 404 U.S. 548, 92 S.Ct. 731, 30 L.Ed.2d 721. Most of the large number of civil suits have been settled. See West Virginia v. Chas. Pfizer & Co., 314 F.Supp. 710 (S.D.N.Y.), aff'd, 440 F.2d 1079 (C.A.2).
3
Respondents India and Iran also sued in a parens patriae capacity; those claims were dismissed in a separate appeal and are not at issue here. Pfizer Inc. v. Lord, 522 F.2d 612, 615-620 (C.A.8).
4
Petitioners moved to dismiss the suits brought by India and Iran. The Philippines moved to strike petitioners' affirmative defense.
5
The District Court relied upon an earlier decision denying a motion to dismiss a related suit brought by the State of Kuwait, see n. 1, supra. In re Antibiotic Antitrust Actions, 333 F.Supp. 315 (S.D.N.Y.). An appeal was taken from that decision but was dismissed by stipulation of the parties. Thus, the Court of Appeals' decision in the present case marked the first appellate consideration of the issue.
6
A petition for mandamus had previously been denied. Pfizer Inc. v. Lord, supra.
7
Two judges dissented, believing that Congress, in passing the Sherman and Clayton Acts, did not intend to include foreign sovereigns within the scope of the term "person." 550 F.2d, at 400. Three judges in the majority also joined a concurring opinion noting the absence of controlling legislative history and urging congressional action. Id., at 399-400.
8
Section 7 of the Sherman Act was repealed in 1955 as redundant. § 3, 69 Stat. 283; see S.Rep.No.619, 84th Cong., 1st Sess., 2 (1955), U.S.Code Cong. & Admin.News 1955, p. 2328.
9
The Sherman and Clayton Acts each provide that the word "person"
"shall be deemed to include corporations and associations existing under or authorized by the laws of either the United States, the laws of any of the Territories, the laws of any State, or the laws of any foreign country." 15 U.S.C. §§ 7, 12.
It is apparent that this definition is inclusive rather than exclusive, and does not by itself imply that a foreign government, any more than a natural person, falls without its bounds. Cf. Helvering v. Morgan's Inc., 293 U.S. 121, 125 n. 1, 55 S.Ct. 60, 61, 79 L.Ed. 232; United States v. New York Telephone Co., 434 U.S. 159, 169 n. 15, 98 S.Ct. 364, 370, 54 L.Ed.2d 376.
10
See Apex Hosiery Co. v. Leader, 310 U.S. 469, 489 n. 10, 60 S.Ct. 982, 989, 84 L.Ed. 1311.
11
THE CHIEF JUSTICE's dissent seems to contend that the Sherman Act's reference to commerce with foreign nations was intended only to reach conspiracies affecting goods imported into this country. Post, at 323-324. But the scope of congressional power over foreign commerce has never been so limited, and it is established that the antitrust laws apply to exports as well. See, e. g., Timken Roller Bearing Co. v. United States, 341 U.S. 593, 599, 71 S.Ct. 971, 975, 95 L.Ed. 1199; United States v. Minnesota Mining & Mfg. Co., 92 F.Supp. 947 (Mass.).
12
Moreover, in the Webb-Pomerene Act, ch. 50, 40 Stat. 516, as amended, 15 U.S.C. § 61 et seq., Congress has provided a narrow and carefully limited exception for export activity that would otherwise violate the antitrust laws. See United States v. Concentrated Phosphate Export Assn., 393 U.S. 199, 89 S.Ct. 361, 21 L.Ed.2d 344. A judicial rule excluding all non-Americans as plaintiffs in treble-damages cases would hardly be consistent with the precisely limited exception Congress has established to the general applicability of the antitrust laws to foreign commerce.
13
See n. 2, supra.
14
It has been suggested that depriving foreign plaintiffs of a treble-damages remedy and thus encouraging illegal conspiracies would affect American consumers in other ways as well: by raising worldwide prices and thus contributing to American inflation; by discouraging foreign entrants who might undercut monopoly prices in this country; and by allowing violators to accumulate a "war chest" of monopoly profits to police domestic cartels and defend them from legal attacks. Velvel, Antitrust Suits by Foreign Nations, 25 Cath.U.L.Rev. 1, 7-8 (1975).
15
The case relied on by petitioners as establishing a general rule, United States v. Fox, 94 U.S. 315, 24 L.Ed. 192, merely adopted New York's construction of its Statute of Wills, as a matter of state law. Id., at 320. Even in New York the word "person" did not have a settled meaning. Compare In re Will of Fox, 52 N.Y. 530, aff'd sub nom. United States v. Fox, supra, with Republic of Honduras v. Soto, 112 N.Y. 310, 19 N.E. 845. In fact, contemporaneous cases generally held that the sovereign was entitled to have the benefit of a statute extending a right to "persons." See, e. g., Stanley v. Schwalby, 147 U.S. 508, 514-517, 13 S.Ct. 418, 420-421, 37 L.Ed. 259; Dollar Savings Bank v. United States, 19 Wall. 227, 239, 22 L.Ed. 80; Cotton v. United States, 11 How. 229, 231, 13 L.Ed. 675.
Cases construing federal statutes of the same era also indicate that the use of the term "person" did not invariably imply an intent to exclude governmental bodies. See, e. g., Ohio v. Helvering, 292 U.S. 360, 54 S.Ct. 725, 78 L.Ed. 1307 ("person" in §§ 3140 and 3244 of the Revised Statutes of 1878 includes a State); California v. United States, 320 U.S. 577, 585-586, 64 S.Ct. 352, 356, 88 L.Ed. 322 ("person" in the Shipping Act, 1916, 46 U.S.C. § 801 et seq., includes both a State and a city); Chattanooga Foundry & Pipe Works v. City of Atlanta, 203 U.S. 390, 396, 27 S.Ct. 65, 66, 51 L.Ed. 241 ("person" in the Sherman Act includes a city).
16
Even earlier, in Chattanooga Foundry, supra, 203 U.S., at 396, 27 S.Ct., at 66, the Court held without extended discussion that a city was entitled to sue for treble damages.
17
In 1955 Congress amended the Clayton Act to allow the United States to sue for single damages when it is injured in its business or property. Ch. 283, § 1, 69 Stat. 282, 15 U.S.C. § 15a.
18
While THE CHIEF JUSTICE's dissent says there are "weapons in the arsenals of foreign nations" sufficient to enable them to counter anticompetitive conduct, such as cartels or boycotts, post, at 327-328, such a political remedy is hardly available to a foreign nation faced with monopolistic control of the supply of medicines needed for the health and safety of its people.
19
Congress has explicitly conferred jurisdiction upon the federal courts to entertain such suits:
"The district courts shall have original jurisdiction of all civil actions where the matter in controversy exceeds the sum or value of $10,000, exclusive of interest and costs, and is between—
* * * * *
"(4) a foreign state . . . as plaintiff and citizens of a State or of different States." 28 U.S.C. § 1332(a)(4) (1976 ed.).
Among the actions foreign sovereign governments were entitled to maintain at the time of the passage of the Sherman and Clayton Acts were suits for common-law business torts, such as unfair competition, similar in general nature to antitrust claims. See French Republic v. Saratoga Vichy Spring Co., 191 U.S. 427, 24 S.Ct. 145, 48 L.Ed. 247 (1903); La Republique Francaise v. Schultz, 94 F. 500 (SDNY 1899).
20
In a letter that was presented to the Court of Appeals when it reconsidered this case en banc, the Legal Adviser of the Department of State advised "that the Department of State would not anticipate any foreign policy problems if . . . foreign governments [were held to be] 'persons' within the meaning of Clayton Act § 4." A copy of this letter is contained in the Memorandum for the United States as Amicus Curiae in opposition to the petition for a writ of certiorari filed in this Court.
21
Cf. n. 1, supra.
1
The Webb-Pomerene Act exempts certain actions of export associations from the antitrust laws, but the exemption applies only if the association's actions do not restrain trade or affect the price of exported products within the United States and do not restrain the export trade of any domestic competitor of the association. 15 U.S.C. § 62. Although the Act was subsequently regarded as carving out an exemption from the antitrust laws, the legislative history indicates considerable question at the time whether the conduct of exporters meeting the conditions specified in the Act would have violated the antitrust laws even without the putative exemption. See H.R.Rep. No. 50, 65th Cong., 1st Sess., 2 (1917).
2
The equivalent language of subsequent drafts can be found at 21 Cong.Rec. 2598-2600 (1890).
3
The Court adverts to a letter from the Legal Adviser of the State Department to the Court of Appeals advising that no foreign policy problems were anticipated from a decision holding foreign governments to be persons within the meaning of § 4 of the Clayton Act. The significance of this communication escapes me. Nothing in the Constitution suggests legislative power may be exercised jointly by the courts and the Department of State.
1
At present there are 162 sovereign nations.
2
The Court quotes a letter to the effect that "the Department of State would not anticipate any foreign policy problems" if § 4 were held to embrace suits by foreign governments. Ante, at 319 n. 20 (emphasis supplied). But resolution of the issue here depends not only upon foreign policy considerations but also upon considerations relevant to the general welfare of the United States. The latter are quite beyond the concern of the Department of State and should be considered by the Legislative Branch. The international business conducted by American corporations has economic and social ramifications of great importance to our country.
| 78
|
434 U.S. 332
98 S.Ct. 597
54 L.Ed.2d 582
Gary David SMITHv.James F. DIGMON, Warden, et al.
No. 76-6799.
Jan. 16, 1978.
PER CURIAM.
1
Petitioner sought habeas corpus relief in the United States District Court for the Northern District of Alabama from his sentence following a judgment of conviction for rape in the Circuit Court of Calhoun County, Ala. Among the allegations of constitutional error in his trial—presented to the District Court in petitioner's traverse to the State's response to his petition petitioner claimed that the in-court identification of him by the prosecuting witness was the product of an out-of-court identification at an impermissibly suggestive photographic array and a later uncounseled lineup. The District Court refused to entertain this claim on the ground, recited in its opinion, that "this issue has never been presented to any state court." No. 77-A-0029-E (mem. filed Feb. 11, 1977). This conclusion was premised upon the absence of any reference to the contention in the reported opinion of the Alabama Court of Criminal Appeals affirming the conviction. Smith v. State, 57 Ala.App. 164, 326 So.2d 692 (1975). The District Court stated: "It is inconceivable to this Court that had Smith raised that issue [in the Alabama Court of Criminal Appeals] that [that court] would not have written to it." The Court of Appeals for the Fifth Circuit denied petitioner's pro se application for a certificate of probable cause and for leave to appeal in forma pauperis. No. 77-8141 (Apr. 20, 1977).
2
In his pro se petition for certiorari, petitioner asserted that "[i]t is beyond doubt that State remedies have been exhausted." Pet. for Cert. 3. This Court direc ed the filing here of the briefs submitted to the Alabama Court of Criminal Appeals. Petitioner's brief to that court reveals that petitioner, citing decisions of this Court,1 did indeed submit the constitutional contention that the prosecuting witness' in-court identification should have been excluded from evidence because that identification derived from an impermissibly suggestive pretrial photographic array and a later uncounseled lineup; moreover, the State Attorney General's brief devoted two of its seven pages to argument answering the contention.2
3
It is too obvious to merit extended discussion that whether the exhaustion requirement of 28 U.S.C. § 2254(b) has been satisfied cannot turn upon whether a state appellate court chooses to ignore in its opinion a federal constitutional claim squarely raised in petitioner's brief in the state court, and, indeed, in this case, vigorously opposed in the State's brief. It is equally obvious that a district court commits plain error in assuming that a habeas petitioner must have failed to raise in the state courts a meritorious claim that he is incarcerated in violation of the Constitution if the state appellate court's opinion contains no reference to the claim.
4
The motion to proceed in forma pauperis, and the petition for certiorari are granted. The order of the Court of Appeals and the judgment of the District Court are reversed, and the case is remanded to the District Court for further proceedings consistent with this opinion.
5
So ordered.
6
Mr. Justice REHNQUIST, with whom THE CHIEF JUSTICE and Mr. Justice BLACKMUN join, concurring in the result.
7
I am not at all certain that the petitioner properly raised before the Court of Appeals the error upon which we today reverse and remand. While petitioner filed a pro se application for probable cause and for leave to appeal in forma pauperis with the Court of Appeals, as far as the record shows, he did not allege any particular error on the part of the District Court. Again as far as the record shows, petitioner failed to bring the District Court's error to anyone's attention until his petition for certiorari in this Court. The lower courts are better equipped and suited to resolve factual errors of the nature raised here and such errors should therefore be raised before them in the first instance. Indeed, we would seem limited to only those questions explicitly presented to the Court of Appeals.
8
However, because it is now clear that the District Court erred in concluding that the petitioner had not raised the in-court identification issue before the state courts, I defer to the Court's necessarily implied conclusion that the question was presented to the Court of Appeals and concur in the result.
1
Simmons v. United States, 390 U.S. 377, 88 S.Ct. 967, 19 L.Ed.2d 1247 (1968); 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); Stovall v. Denno, 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199 (1967).
2
Inexplicably, the Attorney General's response to the petition for certiorari, which squarely presented the question whether habeas "was improperly denied," made no mention whatever that his brief to the Alabama Court of Criminal Appeals had joined issue on the pretrial photographic array and lineup issues, and did not point out that the District Court erred in stating in its order that "this issue has never been presented to any state court." Rather, the response argued only that petitioner had raised only two other issues in federal court neither of which was cognizable on habeas.
| 01
|
434 U.S. 335
98 S.Ct. 651
54 L.Ed.2d 586
NATIONAL LABOR RELATIONS BOARD, Petitioner,v.LOCAL UNION NO. 103, INTERNATIONAL ASSOCIATION OF BRIDGE, STRUCTURAL AND ORNAMENTAL IRON WORKERS, AFL-CIO et al.
No. 76-719.
Argued Oct. 31, 1977.
Decided Jan. 17, 1978.
Syllabus by the Court.
An employer in the construction business made an agreement with respondent union under § 8(f) of the National Labor Relations Act, which provides that it shall not be an unfair labor practice for unions and employers in the construction industry to enter into "prehire" agreements before the majority status of the union has been established. The contract contained no union security clause requiring employees to become union members within a specified period of time. After the employer later undertook construction projects with nonunion labor the union picketed those projects (one for more than 30 days) with signs stating that the employer was violating the agreement with the union, though the union did not represent a majority of the employees at the jobsites and had not petitioned for a representation election. The employer then filed a charge with the National Labor Relations Board alleging that the union was violating § 8(b)(7)(C) of the Act, which makes it an unfair labor practice for an uncertified union to picket for the purpose of forcing an employer to recognize the union as a bargaining representative of his employees, for more than 30 days, unless a petition for an election has been filed within that period. The NLRB issued a cease-and-desist order in favor of the employer, concluding that an object of the picketing was to force the employer to bargain with a union that was not currently certified as the representative of the employees working for the employer. The Court of Appeals, denying enforcement of the NLRB's order, held that the validity of a § 8(f) prehire contract conferred the right to enforce the contract by picketing as well as the right, upon a contract breach, to file and prevail on an unfair labor practice charge against the employer for failure to bargain. Held : Respondent's picketing was for recognitional purposes and constituted an unfair labor practice under § 8(b)(7)(C). An uncertified union like respondent, which does not represent a majority of the employees, may not under that provision engage in picketing in an effort to enforce a prehire agreement with the employer. Pp. 341-352.
(a) Section 8(f), which contains a proviso clause that a "prehire" contract shall not bar a petition for an election under § 9(c), was not intended to relieve a union party to a prehire agreement from the obligation to achieve majority support before it can require the employer to honor such an agreement by means of § 8(a)(5), or to accord the union the status of bargaining representative that would exempt it from the recognitional picketing prohibition of § 8(b)(7). The NLRB therefore correctly held that when the union picketed to enforce its prehire agreement the employer could file and prevail on a § 8(b)(7) charge, because the union lacked majority credentials at the picketed projects. Picketing to enforce the § 8(f) contract was tantamount to recognitional picketing and § 8(b)(7)(C) was infringed when the union failed to request an election within 30 days. Pp. 342-346.
(b) Because § 8(b)(7) was adopted to ensure employees the voluntary, uncoerced selection of a bargaining representative, the NLRB did not err in holding that the provision applies to a minority union's picketing to enforce a prehire contract. Nor does the NLRB's position, which is entitled to considerable deference, render § 8(f) meaningless, since but for that provision neither party could execute a prehire agreement without committing an unfair labor practice and the voluntary observance of an otherwise valid § 8(f) contract is left unchallenged. Retail Clerks v. Lion Dry Goods, Inc., 369 U.S. 17, 82 S.Ct. 541, 7 L.Ed.2d 503; Building & Construction Trades Council of Santa Barbara County (Sullivan Electric Co.), 146 N.L.R.B. 1086, distinguished. Pp. 346-352.
175 U.S.App.D.C. 259, 535 F.2d 87, reversed.
Norton J. Come, Washington, D. C., for petitioner.
Sydney L. Berger, Evansville, Ind., for respondents.
Mr. Justice WHITE delivered the opinion of the Court.
1
Sections 8(b)(7) and 8(f) were added to the National Labor Relations Act in 1959.1 Section 8(f), permitting socalled "prehire" agreements in the construction industry, provides that it shall not be an unfair labor practice to enter into such an agreement with a union that has not attained majority status prior to the execution of the agreement. Under § 8(b)(7)(C), a union that is not the certified representative of the employees in the relevant unit commits an unfair practice if it pickets an employer with "an object" of "forcing or requiring an employer to recognize or bargain with a labor organization as the representative of his employees" and if it does not within 30 days file a petition for an election under § 9(c). The National Labor Relations Board (Board) held that it is an unfair labor practice within the meaning of § 8(b)(7)(C) for an uncertified union not representing a majority of the employees to engage in extended picketing in an effort to enforce a prehire agreement with the employer.2 The issue here is whether this is a misapplication of the section, as the Court of Appeals held in this case.3
2
* Higdon Construction Co. and Local 103 of the International Association of Bridge, Structural & Ornamental Iron Workers, AFL-CIO (hereinafter Local 103), had a history of collective bargaining dating back to 1968. A prehire agreement was reached by Local 103 and Higdon on July 31, 1973, obliging Higdon to abide by the terms of the multiemployer understanding between Local 103 and the Tri-State Iron Workers Employers Association, Inc. No union security clause provision was contained in the Local 103-Higdon agreement. At about the same time, Higdon Contracting Co. was formed for the express pur ose of carrying on construction work with nonunion labor. Local 103 picketed two projects subsequently undertaken by Higdon Contracting Co., in Kentucky and Indiana, with signs which read: "Higdon Construction Company is in violation of the agreement of the Iron Workers Local Number 103." Picketing at one jobsite persisted for more than 30 days, into March 1974. Local 103 had never represented a majority of the employees at either site and, although it was free to do so, it did not petition for a representation election to determine the wishes of the employees at either location.
3
On March 6, 1974, Higdon Contracting Co. filed a charge with the Regional Director of the Board, alleging that Local 103 was violating § 8(b)(7) of the Labor Act. The Administrative Law Judge found that Higdon Contracting Co. and Higdon Construction Co. were legally indistinct for purposes of the proceedings. In an opinion issued August 23, 1974, he concluded that Local 103's picketing did not constitute an unfair labor practice. Higdon had entered into a lawful § 8(f) prehire contract with Local 103 by which it promised to abide by the multiemployer standard. The picketing was for purposes of obtaining compliance with an existing contract, rather than to obtain recognition or bargaining as an initial matter. Only the latter was a purpose forbidden by § 8(b)(7).
4
The Board did not agree with the Administrative Law Judge. Relying on its R. J. Smith decision,4 the Board emphasized the fact that Local 103 had never achieved majority status, and the § 8(f) agreement thus had no binding force on the employer. For this reason, Local 103's picketing was not simply for the purpose of forcing compliance with an existing contract, even though the Board accepted the finding that only a single employer was involved. Under the Board's view of the law and the evidence, an object of the picketing was "forcing and requiring Higdon Contracting Company, Inc., to bargain with [Local 103], without being currently certified as the representative of Higdon Contracting Company, Inc.'s employees and without a petition under Section 9(c) being filed within a reasonable period of time . . . ."
5
Local 103 sought review in the United States Court of Appeals for the District of Columbia Circuit. That court set aside the order, as it had set aside the Board's R. J. Smith order three years previously.5 The Court of Appeals ruled that the validity of a § 8(f) prehire contract carried with it the right to enforce that contract by picketing, and the right as well, when breach of the agreement occurs, to file and prevail on an unfair labor practice charge against the employer for failure to bargain. This elevation of a nonmajority union to the rights of majority status was acceptable, in the court's view, because of the second proviso to § 8(f), which denies the usual contract bar protection to prehire agreements and permits a representation election to be held at the instance of either party at any time during the life of the agreement.
6
The Board's subsequent petition to this Court for a writ of certiorari was granted.6 We reverse.
II
7
It is undisputed that the union was not the certified representative of Higdon's employees and that it did not file an election petition within 30 days of the onset of the picketing. The issue for the Board was whether for the purposes of § 8(b)(7)(C), the union pickets carrying signs asserting that Higdon was violating an agreement with the union were picketing with the forbidden purpose of requiring Higdon to recognize or bargain with the union. Under the Board's view of § 8(f), a prehire agreement does not entitle a minority union to be treated as the majority represe tative of the employees until and unless it attains majority support in the relevant unit. Until that time the prehire agreement is voidable and does not have the same stature as a collective-bargaining contract entered into with a union actually representing a majority of the employees and recognized as such by the employer. Accordingly, the Board holds, as it did here, that picketing by a minority union to enforce a prehire agreement that the employer refuses to honor, effectively has the object of attaining recognition as the bargaining representative with majority support among the employees, and is consequently violative of § 8(b)(7)(C). The Board and the Court of Appeals thus differ principally on the legal questions of how § 8(f) is to be construed and of what consequences the execution of a prehire agreement has on the enforcement of other sections of the Act, primarily §§ 8(a)(5) and 8(b)(7)(C). We have concluded that the Board's construction of the Act, although perhaps not the only tenable one, is an acceptable reading of the statutory language and a reasonable implementation of the purposes of the relevant statutory sections.7
8
Although on its face, § 8(b)(7)(C) would apply to any extended picketing by an uncertified union where recognition or bargaining is an object, the section has not been literally applied. The Board holds that an employer's refusal to honor a collective-bargaining contract executed with the union having majority support is a refusal to bargain and an unfair labor practice under § 8(a)(5).8 Extended picketing by the union attempting to enforce the contract thus seeks to require bargaining, but as the Board applies the Act, § 8(b)(7)(C) does not bar such picketing. Building & Construction Trades Council of Santa Barbara County (Sullivan Electric Co.), 146 N.L.R.B. 1086 (1964); Bay Counties District Council of Carpenters (Disney Roofing & Material Co.), 154 N.L.R.B. 1598, 1605 (1965). The prohibition of § 8(b)(7)(C) against picketing with an object of forcing an employer "to recognize or bargain with a labor organization" should not be read as encompassing two separate and unrelated terms, but was "intended to proscribe picketing having as its target forcing or requiring an employer's initial acceptance of the union as the bargaining representative of his employees." Sullivan Electric, supra, at 1087.
9
As the present case demonstrates, however, the Sullivan Electric rule does not protect picketing to enforce a contract entered into pursuant to § 8(f) where the union is not and has never been the chosen representative of a majority of the employees in a relevant unit. Neither will the Board issue a § 8(a)(5) bargaining order against an employee refusing to abide by a § 8(f) contract unless the complaining union can demonstrate its majority status in the unit. R. J. Smith Construction Co., 191 N.L.R.B. 693 (1971).
10
The Board's position is rooted in the generally prevailing statutory policy that a union should not purport to act as the collective-bargaining agent for all unit employees, and may not be recognized as such, unless it is the voice of the majority of the employees in the unit. Section 7 of the Act, 61 Stat. 140, 29 U.S.C. § 157, guarantees the employees the right to bargain collectively with representatives of their own choosing. Section 9(a), 29 U.S.C. § 159(a), provides that the bargaining agent for all of the employees in the appropriate unit must be the representative "designated or selected for the purposes of collective bargaining by the majority of the employees . . . ."
11
It is thus an unfair practice for an employer under §§ 8(a)(1) and (2) and for a union under § 8(b)(1)(A) to interfere with, restrain, or coerce employees in the exercise of their right to select their representative. The Court has held that both union and employer commit unfair practices when they sign a collective-bargaining agreement recognizing the union as the exclusive bargaining representative when in fact only a minority of the employees have authorized the union to represent their i terest. "There could be no clearer abridgment of § 7 of the Act, assuring employees the right 'to bargain collectively through representatives of their own choosing' or 'to refrain from' such activity" than to grant "exclusive bargaining status to an agency selected by a minority of its employees, thereby impressing that agent upon the nonconsenting majority." Garment Workers v. NLRB, 366 U.S. 731, 737, 81 S.Ct. 1603, 1607, 6 L.Ed.2d 762 (1961). This is true even though the employer and the union believe in good faith, but mistakenly, that the union has obtained majority support. "To countenance such an excuse would place in permissibly careless employer and union hands the power to completely frustrate employee realization of the premise of the Act—that its prohibitions will go far to assure freedom of choice and majority rule in employee selection of representatives." Id., at 738-739, 81 S.Ct., at 1608.
12
Section 8(f) is an exception to this rule. The execution of an agreement with a minority union, an act normally an unfair practice by both employer and union, is legitimated by § 8(f) when the employer is in the construction industry. The exception is nevertheless of limited scope, for the usual rule protecting the union from inquiry into its majority status during the terms of a collective-bargaining contract does not apply to prehire agreements. A proviso to the section declares that a § 8(f) contract, which would be invalid absent the section "shall not be a bar to a petition filed pursuant to section 9(c) or 9(e)." The employer and its employees—and the union itself for that matter may call for a bargaining representative election at any time.
13
The proviso exposing unions with prehire agreements to inquiry into their majority standing by elections under § 9(c) led the Board to its decision in R. J. Smith : An employer does not commit an unfair practice under § 8(a)(5) when he refuses to honor the contract and bargain with the union and the union fails to establish in the unfair labor practice proceeding that it has ever had majority support. As viewed by the Board, a "prehire agreement is merely a preliminary step that contemplates further action for the development of a full bargaining relationship." Ruttmann Construction Co., 191 N.L.R.B. 701, 702 (1971). The employer's duty to bargain and honor the contract is contingent on the union's attaining majority support at the various construction sites. InN.L.R.B. v. Irvin, 475 F.2d 1265 (CA3 1973), for example, the prehire contract was deemed binding on those projects at which the union had secured a majority but not with respect to those projects not yet begun before the union had terminated the contract.
14
Applying this view of § 8(f) in the § 8(b)(7)(C) context, the Board held in this case that when the union picketed to enforce its prehire agreement, Higdon could challenge the union's majority standing by filing a § 8(b)(7) charge and could prevail, as Higdon did here, because the union admittedly lacked majority credentials at the picketed projects. Absent these qualifications, the collective-bargaining relationship and the union's entitlement to act as the exclusive bargaining agent had never matured. Picketing to enforce the § 8(f) contract was the legal equivalent of picketing to require recognition as the exclusive agent, and § 8(b)(7)(C) was infringed when the union failed to request an election within 30 days.
15
Nothing in the language or purposes of either § 8(f) or § 8(b)(7) forecloses this application of the statute. Because of § 8(f), the making of prehire agreements with minority unions is not an unfair practice as it would be in other industries. But § 8(f) itself does not purport to authorize picketing to enforce prehire agreements where the union has not achieved majority support. Neither does it expand the duty of an employer under § 8(a)(5), which is to bargain with a majority representative, to require the employer to bargain with a uni n with which he has executed a prehire agreement but which has failed to win majority support in the covered unit.
16
As for § 8(b)(7), which, along with § 8(f), was added in 1959, its major purpose was to implement one of the Act's principal goals—to ensure that employees were free to make an uncoerced choice of bargaining agent. As we recognized in Connell Construction Co. v. Plumbers and Steamfitters Local Union No. 100, 421 U.S. 616, 95 S.Ct. 1830, 44 L.Ed.2d 418 (1975), "[o]ne of the major aims of the 1959 Act was to limit 'top down' organizing campaigns, in which unions used economic weapons to force recognition from an employer regardless of the wishes of his employees." Id., at 632, 95 S.Ct., at 1840, and references cited therein. The use of picketing was of particular concern as a method of coercion in three specific contexts: where employees had already selected another union representative, where employees had recently voted against a labor union, and where employees had not been given a chance to vote on the question of representation. Picketing in these circumstances was thought impermissibly to interfere with the employees' freedom of choice.9
17
Congressional concern about coerced designations of bargaining agents did not evaporate as the focus turned to the construction industry.10 Section 8(f) was, of course, motivated by an awareness of the unique situation in that industry. Because the Board had not asserted jurisdiction over the construction industry before 1947, the House Committee Report observed that concepts evoked by the Board had been "developed without reference to the construction industry." H.R. Rep. No. 741, 86th Cong., 1st Sess., 19 (1959), 1 Leg.Hist. 777; U.S.Code Cong. & Admin.News 1959, pp. 2424, 2442. There were two aspects peculiar to the building trades that Congress apparently thought justified the use of pre-hire agreements with unions that did not then represent a majority of the employees:
18
"One reason for this practice is that it is necessary for the employer to know his labor costs before making the estimate upon which his bid will be based. A second reason is that the employer must be able to have available a supply of skilled craftsmen ready for quick referral." Ibid. The Senate Report also noted that "[r]epresentation elections in a large segment of the industry are not feasible to demonstrate . . . majority status due to the short periods of actual employment by specific employers." S.Rep. No. 187, 86th Cong., 1st Sess., 55 (1959), 1 Leg.Hist. 541-542; History 341-342, U.S.Code Cong. & Admin.News 1959, pp. 2318, 2373. Privileging unions and employers to execute and observe pre-hire agreements in an effort to accommodate the special circumstances in the construction industry may have greatly convenienced unions and employers, but in no sense can it be portrayed as an expression of the employees' organizational wishes. Hence the proviso that an election could be demanded despite the prehire agreement. By the same token, because § 8(b)(7) was adopted to ensure voluntary, uncoerced selection of a bargaining representative by employees, we cannot fault the Board for holding that § 8(b)(7) applies to a minority union picketing to enforce a prehire contract.
19
The Board's position does not, as respondents claim, render § 8(f) meaningless.11 Except for § 8(f), neither the employer nor the union could execute prehire agreements without committing unfair labor practices. Neither has the Board challenged the voluntary observance of otherwise valid § 8(f) contracts, which is the normal course of events. It is also undisputed that when the union successfully seeks majority support, the prehire agreement attains the status of a collective-bargaining agreement executed by the employer with a union representing a majority of the employees in the unit.
20
The Board's resolution of the conflicting claims in this case represents a defensible construction of the statute and is entitled to considerable deference. Courts may prefer a different application of the relevant sections, but "[t]he function of striking that balance to effectuate national labor policy is often a difficult and delicate responsibility, which the Congress committed primarily to the National Labor Relations Board, subject to limited judicial review." NLRB v. Truck Drivers, 353 U.S. 87, 96, 77 S.Ct. 643, 648, 1 L.Ed.2d 676 (1957); NLRB v. Insurance Agents, 361 U.S. 477, 499, 80 S.Ct. 419, 432, 4 L.Ed.2d 454 (1960). Of course, "recognition of the appropriate sphere of the administrative power . . . obviously cannot exclude all judicial review of the Board's actions." Ibid. But we cannot say that the Board has here "[moved] into a new area of regulation which Congress [has] not committed to it." Ibid. In American Ship Building Co. v. NLRB, 380 U.S. 300, 318, 85 S.Ct. 955, 967, 13 L.Ed.2d 855 (1965), the Court was "unable to find that any fair construction of the provisions relied on by the Board . . . can support its finding of an unfair labor practice. . . . [T]he role assumed by the Board . . . [was] fundamentally inconsistent with the structure of the Act and the function of the sections relied upon." As we have explained, this is not the case here.
21
The union suggests that the Board's construction of § 8(f) deserves little or no deference because it is merely an application in the § 8(b)(7) context of the decision in R. J. Smith Construction Co., 191 N.L.R.B. 693 (1971), which itself was inconsistent with a prior decision, Oilfield Maintenance Co., 142 N.L.R.B. 1384 (1963). It is not at all clear from the latter case, however, that the union involved there had never had majority status. The issue received only passing attention at the time; and the case was distinguished by the Board in Ruttmann Construction Co., 191 N.L.R.B., at 701 n.5, decided the same day as R. J. Smith, supra, as being "primarily concerned" with "the right of a successor-employer to disavow contracts made by a predecessor with five different unions and substitute the terms of a contract it had with another union." In any event, if Oilfield Maintenance represents a view that the majority status of the union executing a prehire agreement may not be challenged in unfair labor practice proceedings, the Board has plainly not adhered to that approach. Its contrary view has been expressed on more than one occasion.12 An administrative agency is not disqualified from changing its mind; and when it does, the courts still sit in review of the administrative decision and should not approach the statutory construction issue de novo and without regard to the administrative understanding of the statutes.
22
The union argues that the Board's position permitting an employer to repudiate a prehire agreement until the union attains majority support renders the contract for all practical purposes unenforceable, assertedly contrary to this Court's decision in Retail Clerks International Assn. v. Lion Dry Goods, Inc., 369 U.S. 17, 82 S.Ct. 541, 7 L.Ed.2d 503 (1962). There, the Court's opinion recognized that § 301 of the Labor Management Relations Act confers jurisdiction on the federal courts to enterta n suits on contracts between an employer and a minority union, as well as those with majority-designated collective-bargaining agents. Section 8(f) contracts were noted as being in this category. The Court was nevertheless speaking to an issue of jurisdiction. That a court has jurisdiction to consider a suit on a particular contract does not suggest that the contract is enforceable. It would not be inconsistent with Lion Dry Goods for a court to hold that the union's majority standing is subject to litigation in a § 301 suit to enforce a § 8(f) contract, just as it is in a § 8(a)(5) unfair labor practice proceeding, and that absent a showing that the union is the majority's chosen instrument, the contract is unenforceable.
23
It is also clear from what has already been said, that the decision here is not inconsistent with Building & Construction Trades Council of Santa Barbara County (Sullivan Electric Co.), 191 N.L.R.B. 1086 (1964). That case merely permits picketing to enforce contracts with a union actually representing a majority of the employees in the unit. Here, the union did not represent the majority, and in picketing to enforce the prehire agreement, it sought the privileges of a majority representative. The conclusion that § 8(b)(7) was violated is legally defensible and factually acceptable.
24
The judgment of the Court of Appeals is reversed.
25
So ordered.
26
Mr. Justice STEWART, with whom Mr. Justice BLACKMUN and Mr. Justice STEVENS join, dissenting.
27
An employer in the construction industry, like any other employer, is under no obligation to bargain with a labor organization that does not represent a majority of his employees.1 See NLRB v. Philamon Laboratories, Inc., 298 F.2d 176, 179 (CA2). But unlike other employers, he is free to do so, and may under § 8(f) sign a contract with a union whose majority status has not been established without risking liability under § 8(a)(1) for interfering with the organizational rights of employees by recognizing a minority union.2 Cf. International Ladies Garment Workers Union v. NLRB, 366 U.S. 731, 81 S.Ct. 1603, 6 L.Ed.2d 762. When an employer in the construction industry does choose to enter a § 8(f) prehire agreement, there is nothing in the provisions or policies of national labor law that allows the employer, or the Board, to dismiss the agreement as a nullity. Yet in this case the Court holds that both the Board and the employer may do precisely that.
28
Whether or not it has the "same stature as a collective-bargaining contract" with a majority union, ante, at 341, or may be the subject of a § 8(a)(5) bargaining orde , R. J. Smith Construction Co., 191 N.L.R.B. 693, enf. denied sub nom. Engineers Local 150 v. NLRB, 156 U.S.App.D.C. 294, 480 F.2d 1186, a § 8(f) prehire agreement is a contract embodying correlative obligations between two parties. The Board in this case concedes that the employer could lawfully have chosen to adhere to the agreement even though the union had not attained majority status. Thus even if Higdon was under no legal duty to abide by the terms of the prehire agreement, that fact does not establish that Higdon was immune from economic pressure aimed at encouraging it to do so.
29
Peaceful primary picketing in pursuit of lawful objectives, even by a minority union, is not forbidden by the National Labor Relations Act unless it falls within an express statutory prohibition. NLRB v. Teamsters Local 639, 362 U.S. 274, 282, 80 S.Ct. 706, 4 L.Ed.2d 710. The only such statutory provision that the Board believes to be applicable to this case is § 8(b)(7), which prohibits most organizational and recognitional picketing.3 But the Board's contention that § 8(b)(7) prohibits picketing to compel compliance with an existing prehire agreement is not supported by the language of that section or by the Board's prior interpretations of it.
30
Section 8(b)(7) prohibits "requiring an employer 'to recognize or bargain with a labor organization as the representative of his employees.' " Building & Construction Trades Council of Santa Barbara County (Sullivan Electric Co.), 146 N.L.R.B. 1086, 1087 (quoting statute, emphasis in Board's opinion). As interpreted by the Board, this section does not prohibit picketing to enforce an existing collective-bargaining contract, even though enforcement would require actual bargaining, since it was intended to proscribe only "picketing having as its target forcing or requiring an employer's initial acceptance of the union as the bargaining representative of his employees." Ibid. (Emphasis supplied.)
31
However one may view the relationship established by a § 8(f) agreement, it is established when the agreement is signed. Only by the most strained interpretation of the terms can picketing to enforce the agreement be said to be for the purpose of gaining "initial acceptance" or recognition.4 And such a tortured construction would be patently inconsistent with § 13 of the Act, 29 U.S.C. § 163, which "is a command of Congress to the courts to resolve doubts and ambiguities in favor of an interpretation . . . which safeguards the right to strike as understood prior to the passage of the Taft-Hartley Act." NLRB v. Teamsters Local 639, supra, at 282, 80 S.Ct., at 711.
32
Since I think neither § 8(b)(7) nor any other provision of the Act rendered illegal the union's peaceful primary picket protesting Higdon's unilateral and total breach of its prehire agreement, I would affirm the judgment of the Court of Appeals.
1
Section 8(b)(7), 73 Stat. 544, 29 U.S.C. § 158(b)(7), provides:
"It shall be an unfair labor practice for a labor organization or its agents . . . to picket or cause to be picketed, or threaten to picket or cause to be picketed, any employer where an object thereof is forcing or requiring an employer to recognize or bargain with a labor organization as the representative of his employees, or forcing or requiring the employees of an employer to accept or select such labor organization as their collective bargaining representative, unless such labor organization is currently certified as the rep esentative of such employees:
"(A) where the employer has lawfully recognized in accordance with this Act any other labor organization and a question concerning representation may not appropriately be raised under section 9(c) of this Act,
"(B) where within the preceding twelve months a valid election under section 9(c) of this Act has been conducted, or
"(C) where such picketing has been conducted without a petition under section 9(c) of this title being filed within a reasonable period of time not to exceed thirty days from the commencement of such picketing: Provided, That when such a petition has been filed the Board shall forthwith, without regard to the provisions of section 9(c)(1) or the absence of a showing of a substantial interest on the part of the labor organization, direct an election in such unit as the Board finds to be appropriate and shall certify the results thereof: Provided further, That nothing in this subparagraph (C) shall be construed to prohibit any picketing or other publicity for the purpose of truthfully advising the public (including consumers) that an employer does not employ members of, or have a contract with, a labor organization, unless an effect of such picketing is to induce any individual employed by any other person in the course of his employment, not to pick up, deliver or transport any goods or not to perform any services.
"Nothing in this paragraph (7) shall be construed to permit any act which would otherwise be an unfair labor practice under this section 8(b)."
Section 8(f), 73 Stat. 545, 29 U.S.C. § 158(f), provides:
"It shall not be an unfair labor practice under subsections (a) and (b) of this section for an employer engaged primarily in the building and construction industry to make an agreement covering employees engaged (or who, upon their employment, will be engaged) in the building and construction industry with a labor organization of which building and construction employees are members (not established, maintained, or assisted by any action defined in section 8(a) of this Act as an unfair labor practice) because (1) the majority status of such labor organization has not been established under the provisions of section 9 of this Act prior to the making of such agreements, or (2) such agreement requires as a condition of employment, membership in such labor organization after the seventh day following the beginning of such employment or the effective date of the agreement, whichever is later, or
(3) such agreement requires the employer to notify such labor organization of opportunities for employment with such employer, or gives such labor organization an opportunity to refer qualified applicants for such employment, or (4) such agreement specifies minimum training or experience qualifications for employment or provides for priority in opportunities for employment based upon length of service with such employer, in the industry or in the particular geographical area: Provided, That nothing in this subsection shall set aside the final proviso to section (a)(3) of this Act: Provided further, That any agreement which would be invalid, but for clause (1) of this subsection, shall not be a bar to a petition filed pursuant to section 9(c) or 9(e)."
2
Iron Workers Local 103 (Higdon Contracting Co.), 216 N.L.R.B. 45 (1975).
3
Iron Workers Local 103 v. NLRB, 175 U.S.App.D.C. 259, 535 F.2d 87 (1976).
4
R. J. Smith Construction Co., 191 N.L.R.B. 693 (1971), enf. denied sub nom. Engineers Local 150 v. NLRB, 156 U.S.App.D.C. 294, 480 F.2d 1186 (1973).
5
Engineers Local 150 v. NLRB, supra.
6
429 U.S. 1089, 97 S.Ct. 1097, 51 L.Ed.2d 534 (1977).
7
As will appear, the Board's conclusion that an object of the picketing was to obtain recognition even though Local 103 sought only to enforce the § 8(f) contract, flows from the Board's view that a prehire contract is not the equivalent of recognizing the union as the majority representa-
tive of the employees, and that an attempt to enforce the prehire agreement by picketing to require the employer to treat with the union is recognitional picketing.
Determining the object, or objects, of labor union picketing is a recurring and necessary function of the Board. Its resolution of these mixed factual and legal questions normally survives judicial review. A type of activity frequently found to violate § 8(b)(7) is picketing ostensibly for the purpose of forcing an employer to abide by terms incorporated into agreements between the union and other employers. Even in cases where the union expressly disavows any recognitional intent, acceptance of the uniform terms proposed by the union can have the "net effect" of establishing the union "as the negotiator of wage rates and benefits." Centralia Building & Construction Trades Council v. NLRB, 124 U.S.App.D.C. 212, 214, 363 F.2d 699, 701 (1966). "The Board has held that informing the public that an employer does not employ members of a labor organization indicates an organizational object, and that stating that an employer does not have a contract with a labor organization similarly implies an object of recognition and bargaining." Carpenters Local 906, 204 N.L.R.B. 138, 139 (1973). Hence, picketing to enforce area standards, where an employer had been assured by notice from the union that "while we expect you to observe the wages, hours, and other benefits set forth in these documents, we do not expect or seek any collective bargaining relationship with your firm," has been held to violate § 8(b)(7). Hotel & Restaurant Employees (Holiday Inns of America, Inc.), 169 N.L.R.B. 683, 684 (1968).
The Courts of Appeals have upheld the Board in these inferences. "Though this legend ['Non-Union Conditions'] could be interpreted as merely a protest of the restaurant's working conditions, it was reasonable for the NLRB to conclude that the message . . . was at least in part that the union desire to alter a non-union working situation by obtaining recognition. In the absence of any countervailing evidence, the NLRB could thus determine that the purpose of the picketing was recognitional." San Francisco Local Joint Board v. NLRB, 163 U.S.App.D.C. 234, 239, 501 F.2d 794, 799 (1974). See also NLRB v. Carpenters Local 745, 450 F.2d 1255 (CA9 1971), and cases cited therein.
In the present case, the Local's business agent contacted Higdon Contracting's general manager, asking "if 'we' were going to use union people
on the job." The general manager answered in he negative; the business agent replied, "I'll get right on it," and the pickets materialized. The message on the picket signs announced that Higdon was not in compliance with the terms of its agreement with Local 103. The inference is certainly sustainable that Local 103 wished Higdon to abide by those terms.
Hence, if the Board is correct in its view of the interaction of §§ 8(f) and 8(b)(7)(C), the Board's decision here was within settled precedent in concluding that a purpose of the picketing was to force Higdon Contracting to recognize or bargain with the union. The picketing carried on in this case, unless § 8(f) required a contrary conclusion as a matter of law, was in clear violation of § 8(b)(7)(C).
8
See NLRB v. Hyde, 339 F.2d 568, 571-573 (CA9 1965). A contract with a majority representative also carries with it the presumption that the union's majority status still obtains. Dayton Motels, Inc., 192 N.L.R.B. 674, 678 (1971), remanded, 474 F.2d 328 (CA6 1973), enf'd, 525 F.2d 476 (CA6 1976).
9
"The total effect of these proposals in the administration bill would be to regulate picketing so that employers and their employees will not be subject to the continuous coercion of an organizational picket line." 105 Cong.Rec. 1731 (1959) (remarks of Sen. Dirksen), 2 NLRB, Legislative History of the Labor-Management Reporting and Disclosure Act of 1959, p. 994 (hereinafter, cited as Leg.Hist.).
The administration bill had added the provisions that would become § 8(b)(7). The Department of Labor's explanatory statement grouped together the ways in which unfair picketing pressure could be exerted, and noted that the bill would make it "an unfair labor practice, subject to mandatory injunction, for a union to picket in order to coerce an employer to recognize it as bargaining representative of his employees . . .." 105 Cong.Rec. 1281 (1959), 2 Leg.Hist. 977.
The President's transmittal letter had stated:
"I recommend legislation . . . [t]o make it illegal for a union, by picketing, to coerce an employer to recognize it as the bargaining representative of his employees or his employees to accept or designate it as their representative where the employer has recognized in accordance with law another labor organization, or where a representation election has been conducted within the last preceding 12 months, or where it cannot be demonstrated that there is a sufficient showing of interest on the part of the employees in being represented by the picketing union or where the picketing has continued for a reasonable period of time without the desires of the employees being determined by a representation election; and to provide speedy and effective enforcement measures." S.Doc. No. 10, 86th Cong., 1st Sess., 2-3 (1959), 1 Leg.Hist. 81-82 (emphasis added).
10
Congress was careful to make its intention clear that prehire agreements were to be arrived at voluntarily, and no element of coercion was to be admitted into the narrow exception being established to the majority p inciple. Representative Barden, an important House Floor leader on the bill and a conferee, introduced as an expression of legislative intent Senator Kennedy's explanation the year before of the voluntary nature of the prehire provision:
"Mr. Kennedy: I shall answer the Senator from Florida as follows—and it is my intention, by so answering, to establish the legislative history on this question: It was not the intention of the committee to require by section 604(a) the making of prehire agreements, but, rather, to permit them; nor was it the intention of the committee to authorize a labor organization to strike, picket, or otherwise coerce an employer to sign a prehire agreement where the majority status of the union had not been established. The purpose of this section is to permit voluntary prehire agreements." 105 Cong.Rec. 18128 (1959), 2 Leg.Hist. 1715.
The House Conference Report similarly stressed that "[n]othing in such provision is intended . . . to authorize the use of force, coercion, strikes, or picketing to compel any person to enter into such prehire agreements." H.R.Rep. No. 1147, 86th Cong., 1st Sess., 42 (1959), 1 Leg.Hist. 946, U.S.Code Cong. & Admin.News 1959, pp. 2318, 2514.
11
A comparable situation obtains concerning hot-cargo clauses, which are permitted in the construction industry by § 8(e) 29 U.S.C. § 158(e), but which cannot be enforced by picketing. Before the enactment of the proviso, this Court held that it was a violation of the secondary boycott provisions of the Act, § 8(b)(4)(A), 61 Stat. 136, to enforce a lawful hot-cargo clause in a contract by refusing to work. Carpenters v. NLRB, 357 U.S. 93, 78 S.Ct. 1011, 2 L.Ed.2d 1186 (1958). After the adoption of § 8(e), it has remained the Board's position that a hot-cargo clause in the construction industry, which is exempted from the ban of § 8(e), may not be enforced by conduct forbidden by § 8(b)(4). Northeastern Indiana Building & Construction Trades Council, 148 N.L.R.B. 854 (1964), remanded on other grounds, 122 U.S.App.D.C. 220, 352 F.2d 696 (1965). f. NLRB v. Enterprise Assn. of Pipefitters, 429 U.S. 507, 97 S.Ct. 891, 51 L.Ed.2d 1 (1977) (valid work preservation agreement does not privilege secondary boycott picketing).
12
In R. J. Smith, the Board expressly limited any such implication from Oilfield Maintenance to cases where a rebuttable presumption of majority status, or majority status in fact, existed. One-time majority status, coupled with a union security clause that has been enforced, gives rise to a rebuttable presumption of continued majority status, in the Board's view. See R. J. Smith, 191 N.L.R.B., at 695.
1
Section 8(a)(5) of the National Labor Relations Act, as set forth in 29 U.S.C. § 158(a)(5), provides that it is an unfair labor practice for an employer "to refuse to bargain collectively with the representatives of his employees, subject to the provisions of section 159(a) of this title." Section 9(a), 29 U.S.C. § 159(a), provides in pertinent part that "[r]epresentatives designated or selected for the purposes of collective bargaining by the majority of the employees in a unit appropriate for such purposes, shall be the exclusive representatives of all the employees in such unit for the purposes of collective bargaining . . . ."
2
Section 8(f) of the National Labor Relations Act, as set forth in 29 U.S.C. § 158(f), provides in pertinent part:
"It shall not be an unfair labor practice under subsections (a) and (b) of this section for an employer engaged primarily in the building and construction industry to make an agreement covering employees engaged (or who, upon their employment, will be engaged) in the building and construction industry with a labor organization of which building and construction employees are members . . . because (1) the majority status of such labor organization has not been established under the provisions of section 159 of this title prior to the making of such agreement . . . ."
3
Section 8(b)(7) of the National Labor Relations Act, as set forth in 29 U.S.C. § 158(b)(7), provides in pertinent part that it shall be an unfair labor practice for a labor organization
"to picket or cause to be picketed, or threaten to picket or cause to be picketed, any employer where an object thereof is forcing or requiring an employer to recognize or bargain with a labor organization as the representative of his employees, or forcing or requiring the employees of an employer to accept or select such labor organization as their collective bargaining representative, unless such labor organization is currently certified as the representative of such employees:
* * * * *
"(C) where such picketing has been conducted without a petition under section 159(c) of this title being filed within a reasonable period of time not to exceed thirty days from the commencement of such picketing . . . ."
4
The Board and the Court rely on cases holding that "picketing ostensibly for the purpose of forcing an employer to abide by terms incorporated into agreements between the union and other employers" may in fact have a recognitional purpose in violation of § 8(b)(7). Ante, at 342 n. 7. See, e. g., Carpenters Local 906, 204 N.L.R.B. 138; Hotel & Restaurant Employees (Holiday Inns of America, Inc.) , 169 N.L.R.B. 683. But in none of these cases did the union and the employer have a pre-existing relationship under a § 8(f) agreement.
| 67
|
434 U.S. 356
98 S.Ct. 786
54 L.Ed.2d 603
James Y. CARTER, etc., petitioner,v.Luther MILLER, etc
No. 76-1171
Supreme Court of the United States
January 17, 1978
On Writ of Certiorari to the United States Court of Appeals for the Seventh Circuit.
Jan. 17, 1978.
PER CURIAM.
1
The judgment is affirmed by an equally divided Court.
2
Mr. Justice BLACKMUN took no part in the consideration or decision of this case.
| 78
|
434 U.S. 357
98 S.Ct. 663
54 L.Ed.2d 604
Don BORDENKIRCHER, Superintendent, Kentucky State Penitentiary, Petitioner,v.Paul Lewis HAYES.
No. 76-1334.
Argued Nov. 9, 1977.
Decided Jan. 18, 1978.
Rehearing Denied March 6, 1978.
See 435 U.S. 918, 98 S.Ct. 1477.
Syllabus
The Due Process Clause of the Fourteenth Amendment is not violated when a state prosecutor carries out a threat made during plea negotiations to have the accused reindicted on more serious charges on which he is plainly subject to prosecution if he does not plead guilty to the offense with which he was originally charged. Pp. 360-365.
(a) "[T]he 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." Blackledge v. Allison, 431 U.S. 63, 71, 97 S.Ct. 1621, 1627, 52 L.Ed.2d 136. Pp. 361-362.
(b) Though to punish a person because he has done what the law allows violates due process, see North Carolina v. Pearce, 395 U.S. 711, 738, 89 S.Ct. 2072, 2082, 23 L.Ed.2d 656, there is no such element of punishment in the "give-and-take" of plea bargaining as long as the accused is free to accept or reject the prosecutor's offer. Pp. 362-364.
(c) This Court has accepted as constitutionally legitimate the simple reality that the prosecutor's interest at the bargaining table is to persuade the defendant to forgo his right to plead not guilty, and in pursuing that course here the prosecutor did not exceed constitutional bounds. Pp. 364-365.
547 F.2d 42, 6 Cir., reversed.
Robert L. Chenoweth, Frankfort, Ky., for petitioner.
J. Vincent Aprile II, Frankfort, Ky., for respondent.
Mr. Justice STEWART delivered the opinion of the Court.
1
The question in this case is whether the Due Process Clause of the Fourteenth Amendment is violated when a state prosecutor carries out a threat made during plea negotiations to reindict the accused on more serious charges if he does not plead guilty to the offense with which he was originally charged.
2
* The respondent, Paul Lewis Hayes, was indicted by a Fayette County, Ky., grand jury on a charge of uttering a forged instrument in the amount of $88.30, an offense then punishable by a term of 2 to 10 years in prison. Ky.Rev.Stat. § 434.130 (1973) (repealed 1975). After arraignment, Hayes, his retained counsel, and the Commonwealth's Attorney met in the presence of the Clerk of the Court to discuss a possible plea agreement. During these conferences the prosecutor offered to recommend a sentence of five years in prison if Hayes would plead guilty to the indictment. He also said that if Hayes did not plead guilty and "save[d] the court the inconvenience and necessity of a trial," he would return to the grand jury to seek an indictment under the Kentucky Habitual Criminal Act,1 then Ky.Rev.Stat. § 431.190 (1973) (repealed 1975), which would subject Hayes to a mandatory sentence of life imprisonment by reason of his two prior felony convictions.2 Hayes chose not to plead guilty, and the prosecutor did obtain an indictment charging him under the Habitual Criminal Act. It is not disputed that the recidivist charge was fully justified by the evidence, that the pros cutor was in possession of this evidence at the time of the original indictment, and that Hayes' refusal to plead guilty to the original charge was what led to his indictment under the habitual criminal statute.
3
A jury found Hayes guilty on the principal charge of uttering a forged instrument and, in a separate proceeding, further found that he had twice before been convicted of felonies. As required by the habitual offender statute, he was sentenced to a life term in the penitentiary. The Kentucky Court of Appeals rejected Hayes' constitutional objections to the enhanced sentence, holding in an unpublished opinion that imprisonment for life with the possibility of parole was constitutionally permissible in light of the previous felonies of which Hayes had been convicted,3 and that the prosecutor's decision to indict him as a habitual offender was a legitimate use of available leverage in the plea-bargaining process.
4
On Hayes' petition for a federal writ of habeas corpus, the United States District Court for the Eastern District of Kentucky agreed that there had been no constitutional violation in the sentence or the indictment procedure, and denied the writ.4 The Court of Appeals for the Sixth Circuit reversed the District Court's judgment. Hayes v. Cowan, 547 F.2d 42. While recognizing "that plea bargaining now plays an important role in our criminal justice system," id., at 43, the appellate court thought that the prosecutor's conduct during the bargaining negotiations had violated the principles of Blackledge v. Perry, 417 U.S. 21, 94 S.Ct. 2098, 40 L.Ed.2d 628, which "protect[ed] defendants from the vindictive exercise of a prosecutor's discretion." 547 F.2d, at 44. Accordingly, the court ordered that Hayes be discharged "except for his confinement under a lawful sentence imposed solely for the crime of uttering a forged instrument." Id., at 45. We granted certiorari to consider a constitutional question of importance in the administration of criminal justice. 431 U.S. 953, 97 S.Ct. 2672, 53 L.Ed.2d 269.
II
5
It may be helpful to clarify at the outset the nature of the issue in this case. While the prosecutor did not actually obtain the recidivist indictment until after the plea conferences had ended, his intention to do o was clearly expressed at the outset of the plea negotiations. Hayes was thus fully informed of the true terms of the offer when he made his decision to plead not guilty. This is not a situation, therefore, where the prosecutor without notice brought an additional and more serious charge after plea negotiations relating only to the original indictment had ended with the defendant's insistence on pleading not guilty.5 As a practical matter, in short, this case would be no different if the grand jury had indicted Hayes as a recidivist from the outset, and the prosecutor had offered to drop that charge as part of the plea bargain.
6
The Court of Appeals nonetheless drew a distinction between "concessions relating to prosecution under an existing indictment," and threats to bring more severe charges not contained in the original indictment—a line it thought necessary in order to establish a prophylactic rule to guard against the evil of prosecutorial vindictiveness.6 Quite apart from this chronological distinction, however, the Court of Appeals found that the prosecutor had acted vindictively in the present case since he had conceded that the indictment was influenced by his desire to induce a guilty plea.7 The ultimate conclusion of the Court of Appeals thus seems to have been that a prosecutor acts vindictively and in violation of due process of law whenever his charging decision is influenced by what he hopes to gain in the course of plea bargaining negotiations.
III
7
We have recently had occasion to observe: "[W]hatever 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." Blackledge v. Allison, 431 U.S. 63, 71, 97 S.Ct. 1621, 1627, 52 L.Ed.2d 136. The open acknowledgment of this previously clandestine practice has led this Court to recognize the importance of counsel during plea negotiations, Brady v. United States, 397 U.S. 742, 758, 90 S.Ct. 1463, 1474, 25 L.Ed.2d 747, the need for a public record indicating that a plea was knowingly and voluntarily made, Boykin v. Alabama, 395 U.S. 238, 242, 89 S.Ct. 1709, 1711, 23 L.Ed.2d 274, and the requirement that a prosecutor's plea-bargaining promise must be kept, Santobello v. New York, 404 U.S. 257, 262, 92 S.Ct. 495, 498, 30 L.Ed.2d 427. The decision of the Court of Appeals in the present case, however, did not deal with considerations such as these, but held that the substance of the plea offer itself violated the limitations imposed by the Due Process Clause of the Fourteenth Amendment. Cf. Brady v. United States, supra, 397 U.S., at 751 n. 8, 90 S.Ct., at 1470. For the reasons that follow, we have concluded that the Court of Appeals was mistaken in so ruling.
IV
8
This Court held in North Carolina v. Pearce, 395 U.S. 711, 725, 89 S.Ct. 2072, 2080, 23 L.Ed.2d 656, that the Due Process Clause of the Fourteenth Amendment "requires that vindictiveness against a defendant for having successfully attacked his first conviction must play no part in the sentence he receives after a new trial." The same principle was later applied to prohibit a prosecutor from reindicting a convicted misdemeanant on a felony charge after the defendant had invoked an appellate remedy, since in this situation there was also a "realistic likelihood of 'vindictiveness.' " Blackledge v. Perry, 417 U.S., at 27, 94 S.Ct., at 2102.
9
In those cases the Court was dealing with the State's unilateral imposition of a penalty upon a defendant who had chosen to exercise a legal right to attack his original conviction—a situation "very different from the give-and-take negotiation common in plea bargaining between the prosecution and defense, which arguably possess relatively equal bargaining power." Parker v. North Carolina, 397 U.S. 790, 809, 90 S.Ct. 1458, 1474, 1479, 25 L.Ed.2d 785 (opinion of Brennan, J.). The Court has emphasized that the due process violation in cases such as Pearce and Perry lay not in the possibility that a defendant might be deterred from the exercise of a legal right, see Colten v. Kentucky, 407 U.S. 104, 92 S.Ct. 1953, 32 L.Ed.2d 584; Chaffin v. Stynchcombe, 412 U.S. 17, 93 S.Ct. 1977, 36 L.Ed.2d 714, but rather in the danger that the State might be retaliating against the accused for lawfully attacking his conviction. See Blackledge v. Perry, supra, 417 U.S., at 26-28, 94 S.Ct., at 2101-02.
10
To punish a person because he has done what the law plainly allows him to do is a due process violation of the most basic sort, see North Carolina v. Pearce, supra, 395 U.S., at 738, 89 S.Ct., at 2082 (opinion of Black, J.), and for an agent of the State to pursue a course of action whose objective is to penalize a person's reliance on his legal rights is "patently unconstitutional." Chaffin v. Stynchcombe, supra, 412 U.S., at 32-33, n. 20, 93 S.Ct., at 1986. See United States v. Jackson, 390 U.S. 570, 88 S.Ct. 1209, 20 L.Ed.2d 138. But in the "give-and-take" of plea bargaining, there is no such element of punishment or retaliation so long as the accused is free to accept or reject the prosecution's offer.
11
Plea bargaining flows from "the mutuality of advantage" to defendants and prosecutors, each with his own reasons for wanting to avoid trial. Brady v. United States, supra, 397 U.S., at 752, 90 S.Ct., at 1471. Defendants advised by competent counsel and protected by other procedural safeguards are presumptively capable of intelligent choice in response to prosecutorial persuasion, and unlikely to be driven to false self-condemnation. 397 U.S., at 758, 90 S.Ct., at 1474. Indeed, acceptance of the basic legitimacy of plea bargaining necessarily implies rejection of any notion that a guilty plea is involuntary in a constitutional sense simply because it is the end result of the bargaining process. By hypothesis, the plea may have been induced by promises of a recommendation of a lenient sentence or a reduction of charges, and thus by fear of the possibility of a greater penalty upon conviction after a trial. See ABA Project on Standards for Criminal Justice, Pleas of Guilty § 3.1 (App. Draft 1968); Note, Plea Bargaining and the Transformation of the Criminal Process, 90 Harv.L.Rev. 564 (1977). Cf. Brady v. United States, supra, at 751, 90 S.Ct., at 1470; North Carolina v. Alford, 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162.
12
While confronting a defendant with the risk of more severe punishment clearly may have a "discouraging effect on the defendant's assertion of his trial rights, the imposition of these difficult choices [is] an inevitable"—and permissible—"attribute of any legitimate system which tolerates and encourages the negotiation of pleas." Chaffin v. Stynchcombe, supra, 412 U.S., at 31, 93 S.Ct., at 1985. It follows that, by tolerating and encouraging the negotiation of pleas, this Court has necessarily accepted as constitutionally legitimate the simple reality that the prosecutor's interest at the bargaining table is to persuade the defendant to forgo his right to plead not guilty.
13
It is not disputed here that Hayes was properly chargeable under the recidivist statute, since he had in fact been convicted of two previous felonies. In our system, so long as the prosecutor has probable cause to believe that the accused committed an offense defined by statute, the decision whether or not to prosecute, and what charge to file or bring before a grand jury, generally rests entirely in his discretion.8 Within the limits set by the legislature's constitutionally valid definition of chargeable offenses, "the conscious exercise of some selectivity in enforcement is not in itself a federal constitutional violation" so long as "the selection was [not] deliberately based upon an unjustifiable standard such as race, religion, or other arbitrary classification." Oyler v. Boles, 368 U.S. 448, 456, 82 S.Ct. 501, 506, 7 L.Ed.2d 446. To hold that the prosecutor's desire to induce a guilty plea is an "unjustifiable standard," which, like race or religion, may play no part in his charging decision, would contradict the very premises that underlie the concept of plea bargaining itself. Moreover, a rigid constitutional rule that would prohibit a prosecutor from acting forthrightly in his dealings with the defense could only invite unhealthy subterfuge that would drive the practice of plea bargaining back into the shadows from which it has so recently emerged. See Blackledge v. Allison, 431 U.S., at 76, 97 S.Ct., at 1630.
14
There is no doubt that the breadth of discretion that our country's legal system vests in prosecuting attorneys carries with it the potential for both individual and institutional abuse.9 And broad though that discretion may be, there are undoubtedly constitutional limits upon its exercise. We hold only that the course of conduct engaged in by the prosecutor in this case, which no more than openly presented the defendant with the unpleasant alternatives of forgoing trial or facing charges on which he was plainly subject to prosecution, did not violate the Due Process Clause of the Fourteenth Amendment.
15
Accordingly, the judgment of the Court of Appeals is
16
Reversed.
17
Mr. Justice BLACKMUN, with whom Mr. Justice BRENNAN and Mr. Justice MARSHALL join, dissenting.
18
I feel that the Court, although purporting to rule narrowly (that is, on "the course of conduct engaged in by the prosecutor in this case," ante, this page), is departing from, or at least restricting, the principles established in North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969), and in Blackledge v. Perry, 417 U.S. 21, 94 S.Ct. 2098, 40 L.Ed.2d 628 (1974). If those decisions are sound and if those principles are salutary, as I must assume they are, they require, in my view, an affirmance, not a reversal, of the judgment of the Court of Appeals in the present case.
19
In Pearce, as indeed the Court notes, ante, at 362, it was held that "vindictiveness against a defendant for having successfully attacked his first conviction must play no part in the sentence he receives after a new trial." 395 U.S., at 725, 89 S.Ct., at 2080. Accordingly, if on the new trial, the sentence the defendant receives from the court is greater than that imposed after the first trial, it must be explained by reasons "based upon objective information concerning identifiable conduct on the part of the defendant occurring after the time of the original sentencing proceeding," other than his having pursued the appeal or collateral remedy. Id., at 726, 89 S.Ct., at 2081. On the other hand, if the sentence is imposed by the jury and not by the court, if the jury is not aware of the original sentence, and if the second sentence is not otherwise shown to be a product of vindictiveness, Pearce has no application. Chaffin v. Stynchcombe, 412 U.S. 17, 93 S.Ct. 1977, 36 L.Ed.2d 714 (1973).
20
Then later, in Perry, the Court applied the same principle to prosecutorial conduct where there was a "realistic likelihood of 'vindictiveness.' " 417 U.S., at 27, 94 S.Ct., at 2102. It held that the requirement of Fourteenth Amendment due process prevented a prosecutor's reindictment of a convicted misdemeanant on a felony charge after the defendant had exercised his right to appeal the misdemeanor conviction and thus to obtain a trial de novo. It noted the prosecution's "considerable stake" in discouraging the appeal. Ibid.
21
The Court now says, however, that this concern with vindictiveness is of no import in the present case, despite the difference between five years in prison and a life sentence, because we are here concerned with plea bargaining where there is give-and-take negotiation, and where, it is said, ante, at 363, "there is no such element of punishment or retaliation so long as the accused is free to accept or reject the prosecution's offer." Yet in this case vindictiveness is present to the same extent as it was thought to be in Pearce and in Perry ; the prosecutor here admitted, see ante, at 358 n. 1, that the sole reason for the new indictment was to discourage the respondent from exercising his right to a trial.1 Even had such an admission not been made, when plea negotiations, conducted in the face of the less serious charge under the first indictment, fail, charging by a second indictment a more serious crime for the same conduct creates "a strong inference" of vindictiveness. As then Judge McCree aptly observed, in writing for a unanimous panel of the Sixth Circuit, the prosecutor initially "makes a discretionary determination that the interests of the state are served by not seeking more serious charges." Hayes v. Cowan, 547 F.2d 42, 44 (1976). I therefore do not understand why, as in Pearce, due process does not require that the prosecution justify its action on some basis other than discouraging respondent from the exercise of his right to a trial.
22
Prosecutorial vindictiveness, it seems to me, in the present narrow context, is the fact against which the Due Process Clause ought to protect. I perceive little difference between vindictiveness after what the Court describes, ante, at 362, as the exercise of a "legal right to attack his original conviction," and vindictiveness in the " 'give-and-take negotiation common in plea bargaining.' " Prosecutorial vindictiveness in any context is still prosecutorial vindictiveness. The Due Process Clause should protect an accused against it, however it asserts itself. The Court of Appeals rightly so held, and I would affirm the judgment.
23
It might be argued that it really makes little difference how this case, now that it is here, is decided. The Court's holding gives plea bargaining full sway despite vindictiveness. A contrary result, however, merely would prompt the aggressive prosecutor to bring the greater charge initially in every case, and only thereafter to bargain. The consequences to the accused would still be adverse, for then he would bargain against a greater charge, face the likelihood of increased bail, and run the risk that the court would be less inclined to accept a bargained plea. Nonetheless, it is far preferable to hold the prosecution to the charge it was originally content to bring and to justify in the eyes of its public.2
24
Mr. Justice POWELL, dissenting.
25
Although I agree with much of the Court's opinion, I am not satisfied that the result in this case is just or that the conduct of the plea bargaining met the requirements of due process.
26
Respondent was charged with the uttering of a single forged check in the amount of $88.30. Under Kentucky law, this offense was punishable by a prison term of from 2 to 10 years, apparently without regard to the amount of the forgery. During the course of plea bargaining, the prosecutor offered respondent a sentence of five years in consideration of a guilty plea. I observe, at this point, that five years in prison for the offense charged hardly could be characterized as a generous offer. Apparently respondent viewed the offer in this light and declined to accept it; he protested that he was innocent and insisted on going to trial. Respondent adhered to this position even when the prosecutor advised that he would seek a new indictment under the State's Habitual Criminal Act which would subject respondent, if convicted, to a mandatory life sentence because of two prior felony convictions.
27
The prosecutor's initial assessment of respondent's case led him to forgo an indictment under the habitual criminal statute. The circumstances of respondent's prior convictions are relevant to this assessment and to my view of the case. Respondent was 17 years old when he committed his first offense. He was charged with rape but pleaded guilty to the lesser included offense of "detaining a female." One of the other participants in the incident was sentenced to life imprisonment. Respondent was sent not to prison but to a reformatory where he served five years. Respondent's second offense was robbery. This time he was found guilty by a jury and was sentenced to five years in prison, but he was placed on probation and served no time. Although respondent's prior convictions brought him within the terms of the Habitual Criminal Act, the offenses themselves did not result in imprisonment; yet the addition of a conviction on a charge involving $88.30 subjected respondent to a mandatory sentence of imprisonment for life.1 Persons convicted of rape and murder often are not punished so severely.
28
No explanation appears in the record for the prosecutor's decision to escalate the charge against respondent other than respondent's refusal to plead guilty. The prosecutor has conceded that his purpose was to discourage respondent's assertion of constitutional rights, and the majority accepts this characterization of events. See ante, at 358 n. 1, 364.
29
It seems to me that the question to be asked under the circumstances is whether the prosecutor reasonably might have charged respondent under the Habitual Criminal Act in the first place. The deference that courts properly accord the exercise of a prosecutor's discretion perhaps would foreclose judicial criticism if the prosecutor originally had sought an indictment under that Act, as unreasonable as it would have seemed.2 But here the prosecutor evidently made a reasonable, responsible judgment not to subject an individual to a mandatory life sentence when his only new offense had societal implications as limited as those accompanying the uttering of a single $88 forged check and when the circumstances of his prior convictions confirmed the inappropriateness of applying the habitual criminal statute.3 I think it may be inferred that the prosecutor himself deemed it unreasonable and not in the public interest to put this defendant in jeopardy of a sentence of life imprisonment.
30
There may be situations in which a prosecutor would be fully justified in seeking a fresh indictment for a more serious offense. The most plausible justification might be that it would have been reasonable and in the public interest initially to have charged the defendant with the greater offense. In most cases a court could not know why the harsher indictment was sought, and an inquiry into the prosecutor's motive would neither be indicated nor likely to be fruitful. In those cases, I would agree with the majority that the situation would not differ materially from one in which the higher charge was brought at the outset. See ante, at 360-361.
31
But this is not such a case. Here, any inquiry into the prosecutor's purpose is made unnecessary by his candid acknowledgment that he threatened to procure and in fact procured the habitual criminal indictment because of respondent's insistence on exercising his constitutional rights. We have stated in unequivocal terms, in discussing United States v. Jackson, 390 U.S. 570, 88 S.Ct. 1209, 20 L.Ed.2d 138 (1968), and North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969), that "Jackson and Pearce are clear and subsequent cases have not dulled their force: if the only objective of a state practice is to discourage the assertion of constitutional rights it is 'patently unconstitutional.' " Chaffin v. Stynchcombe, 412 U.S. 17, 32 n. 20, 93 S.Ct. 1977, 1986, 36 L.Ed.2d 714 (1973). And in Brady v. United States, 397 U.S. 742, 90 S.Ct. 1463, 25 L.Ed.2d 747 (1970), we drew a distinction between the situation there approved and the "situation where the prosecutor or judge, or both, deliberately employ their charging and sentencing powers to induce a particular defendant to tender a plea of guilty." Id., at 751 n. 8, 90 S.Ct., at 1470.
32
The plea-bargaining process, as recognized by this Court, is essential to the functioning of the criminal-justice system. It normally affords genuine benefits to defendants as well as to society. And if the system is to work effectively, prosecutors must be accorded the widest discretion, within constitutional limits, in conducting bargaining. Cf. n. 2, supra. This is especially true when a defendant is represented by counsel and presumably is fully advised of his rights. Only in the most exceptional case should a court conclude that the scales of the bargaining are so unevenly balanced as to arouse suspicion. In this case, the prosecutor's actions denied respondent due process because their admitted purpose was to discourage and then to penalize with unique severity his exercise of constitutional rights. Implementation of a strategy calculated solely to deter the exercise of constitutional rights is not a constitutionally permissible exercise of discretion. I would affirm the opinion of the Court of Appeals on the facts of this case.
1
While cross-examining Hayes during the subsequent trial proceedings the prosecutor described the plea offer in the following language:
"Isn't it a fact that I told you at that time [the initial bargaining session] if you did not intend to plead guilty to five years for this charge and . . . save the court the inconvenience and necessity of a trial and taking up this time that I intended to return to the grand jury and ask them to indict you based upon these prior felony convictions?" Tr. 194.
2
At the time of Hayes' trial the statute provided that "[a]ny person convicted a . . . third time of felony . . . shall be confined in the penitentiary during his life." Ky.Rev.Stat. § 431.190 (1973) (repealed 1975). That statute has been replaced by Ky.Rev.Stat. § 532.080 (Supp. 1977) under which Hayes would have been sentenced to, at most, an indeterminate term of 10 to 20 years. § 532.080(6)(b). In addition, under the new statute a previous conviction is a basis for enhanced sentencing only if a prison term of one year or more was imposed, the sentence or probation was completed within five years of the present offense, and the offender was over the age of 18 when the offense was committed. At least one of Hayes' prior convictions did not meet these conditions. See n. 3, infra.
3
According to his own testimony, Hayes had pleaded guilty in 1961, when he was 17 years old, to a charge of detaining a female, a lesser included offense of rape, and as a result had served five years in the state reformatory. In 1970 he had been convicted of robbery and sentenced to five years' imprisonment, but had been released on probation immediately.
4
The opinion of the District Court is unreported.
5
Compare United States ex rel. Williams v. McMann, 436 F.2d 103 (CA2), with United States v. Ruesga-Martinez, 534 F.2d 1367, 1370 (CA9). In citing these decisions we do not necessarily endorse them.
6
"Although a prosecutor may in the course of plea negotiations offer a defendant concessions relating to prosecution under an existing indictment . . . he may not threaten a defendant with the consequence that more severe charges may be brought if he insists on going to trial. When a prosecutor obtains an indictment less severe than the facts known to him at the time might permit, he makes a discretionary determination that the interests of the state are served by not seeking more serious charges. . . . Accordingly, if after plea negotiations fail, he then procures an indictment charging a more serious crime, a strong inference is created that the only reason for the more serious charges is vindictiveness. Under these circumstances, the prosecutor should be required to justify his action." 547 F.2d, at 44-45.
7
"In this case, a vindictive motive need not be inferred. The prosecutor has admitted it." Id., at 45.
8
This case does not involve the constitutional implications of a prosecutor's offer during plea bargaining of adverse or lenient treatment for some person other than the accused, see ALI Model Code of Pre-Arraignment Procedure, Commentary to § 350.3, pp. 614-615 (1975), which might pose a greater danger of inducing a false guilty plea by skewing the assessment of the risks a defendant must consider. Cf. Brady v. United States, 397 U.S. 742, 758, 90 S.Ct. 1463, 1474, 25 L.Ed.2d 747.
9
This potential has led to many recommendations that the prosecutor's discretion should be controlled by means of either internal or external guidelines. See ALI Model Code of Pre-Arraignment Procedure for Criminal Justice §§ 350.3(2)-(3) (1975); ABA Project on Standards for Criminal Justice, The Prosecution Function §§ 2.5, 3.9 (App. Draft 1971); Abrahms, Internal Policy: Guiding the Exercise of Prosecutorial Discretion, 19 UCLA L.Rev. 1 (1971).
1
In Brady v. United States, 397 U.S. 742, 90 S.Ct. 1463, 25 L.Ed.2d 747 (1970), where the Court as a premise accepted plea bargaining as a legitimate practice, it nevertheless observed:
"We here make no reference to the situation where the prosecutor or judge, or both, deliberately employ their charging and sentencing powers to induce a particular defendant to tender a plea of guilty." Id., at 751 n. 8, 90 S.Ct., at 1470. See also Colon v. Hendry, 408 F.2d 864 (CA5 1969); United States v. Jamison, 164 U.S.App.D.C. 300, 505 F.2d 407 (1974); United States v. DeMarco, 401 F.Supp. 505 (C.D.Cal.1975), aff'd, 550 F.2d 1224 (CA9 1977), cert. denied, 434 U.S. 827, 98 S.Ct. 105, 34 L.Ed.2d 85 (1977); United States v. Ruesga Martinez, 534 F.2d 1367, 1369 (CA9 1976).
2
That prosecutors, without saying so, may sometimes bring charges more serious than they think appropriate for the ultimate disposition of a case, in order to gain bargaining leverage with a defendant, does not add support to today's decision, for this Court, in its approval of the advantages to be gained from plea negotiations, has never openly sanctioned such deliberate overcharging or taken such a cynical view of the bargaining process. See North Carolina v. Alford, 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970); Santobello v. New York, 404 U.S. 257, 92 S.Ct. 495, 30 L.Ed.2d 427 (1971). Normally, of course, it is impossible to show that this is what the prosecutor is doing, and the courts necessarily have deferred to the prosecutor's exercise of discretion in initial charging decisions.
Even if overcharging is to be sanctioned, there are strong reasons of fairness why the charges should be presented at the beginning of the bargaining process, rather than as a filliped threat at the end. First, it means that a prosecutor is required to reach a charging decision without
any knowledge of the particular defendant's willingness to plead guilty; hence the defendant who truly believes himself to be innocent, and wishes for that reason to go to trial, is not likely to be subject to quite such a devastating gamble since the prosecutor has fixed the incentives for the average case.
Second, it is healthful to keep charging practices visible to the general public, so that political bodies can judge whether the policy being followed is a fair one. Visibility is enhanced if the prosecutor is required to lay his cards on the table with an indictment of public record at the beginning of the bargaining process, rather than making use of unrecorded verbal warnings of more serious indictments yet to come.
Finally, I would question whether it is fair to pressure defendants to plead guilty by threat of reindictment on an enhanced charge for the same conduct when the defendant has no way of knowing whether the prosecutor would indeed be entitled to bring him to trial on the enhanced charge. Here, though there is no dispute that respondent met the then-current definition of a habitual offender under Kentucky law, it is conceivable that a properly instructed Kentucky grand jury, in response to the same considerations that ultimately moved the Kentucky Legislature to amend the habitual offender statute, would have refused to subject respondent to such an onerous penalty for his forgery charge. There is no indication in the record that, once the new indictment was obtained, respondent was gi en another chance to plead guilty to the forged check charge in exchange for a five-year sentence.
1
It is suggested that respondent will be eligible for parole consideration after serving 15 years.
2
The majority suggests, ante, at 360-361, that this case cannot be distinguished from the case where the prosecutor initially obtains an indictment under an enhancement statute and later agrees to drop the enhancement charge in exchange for a guilty plea. I would agree that these two situations would be alike only if it were assumed that the hypothetical prosecutor's decision to charge under the enhancement statute was occasioned not by consideration of the public interest but by a strategy to discourage the defendant from exercising his constitutional rights. In theory, I would condemn both practices. In practice, the hypothetical situation is largely unreviewable. The majority's view confuses the propriety of a particular exercise of prosecutorial discretion with its unreviewability. In the instant case, however, we have no problem of proof.
3
Indeed, the Kentucky Legislature subsequently determined that the habitual criminal statute under which respondent was convicted swept too broadly and did not identify adequately the kind of prior convictions that should trigger its application. At least one of respondent's two prior convictions would not satisfy the criteria of the revised statute; and the impact of the statute, when applied, has been reduced significantly in situations, like this one, where the third offense is relatively minor. See ante, at 359 n. 2.
| 01
|
434 U.S. 374
98 S.Ct. 673
54 L.Ed.2d 618
Thomas E. ZABLOCKI, Milwaukee County Clerk, etc., Appellant,v.Roger C. REDHAIL, etc.
No. 76-879.
Argued Oct. 4, 1977.
Decided Jan. 18, 1978.
Syllabus
Wisconsin statute providing that any resident of that State "having minor issue not in his custody and which he is under obligation to support by any court order or judgment" may not marry without a court approval order, which cannot be granted absent a showing that the support obligation has been met and that children covered by the support order "are not then and are not likely thereafter to become public charges," held to violate the Equal Protection Clause of the Fourteenth Amendment. Pp. 383-391.
(a) Since the right to marry is of fundamental importance, e. g., Loving v. Virginia, 388 U.S. 1, 87 S.Ct. 1817, 18 L.Ed.2d 1010, and the statutory classification involved here significantly interferes with the exercise of that right, "critical examination" of the state interests advanced in support of the classification is required. Massachusetts Board of Retirement v. Murgia, 427 U.S. 307, 312, 314, 96 S.Ct. 2562, 2566, 2567, 49 L.Ed.2d 520. Pp. 383-387.
(b) The state interests assertedly served by the challenged statute unnecessarily impinge on the right to marry. If the statute is designed to furnish an opportunity to counsel persons with prior child-support obligations before further such obligations are incurred, it neither expressly requires counseling nor provides for automatic approval after counseling is completed. The statute cannot be justified as encouraging an applicant to support his children. By the proceeding the State, which already possesses numerous other means for exacting compliance with support obligations, merely prevents the applicant from getting married, without ensuring support of the applicant's prior children. Though it is suggested that the statute protects the ability of marriage applicants to meet prior support obligations before new ones are incurred the statute is both underinclusive (as it does not limit new financial commitments other than those arising out of the contemplated marriage) and overinclusive (since the new spouse may better the applicant's financial situation). Pp. 388-390.
418 F.Supp. 1061, affirmed.
Ward L. Johnson, Jr., Madison, Wis., for appellant.
Robert H. Blondis, Milwaukee, Wis., for appellee.
Mr. Justice MARSHALL delivered the opinion of the Court.
1
At issue in this case is the constitutionality of a Wisconsin statute, Wis.Stat. §§ 245.10(1), (4), (5) (1973), which provides that members of a certain class of Wisconsin residents may not marry, within the State or elsewhere, without first obtaining a court order granting permission to marry. The class is defined by the statute to include any "Wisconsin resident having minor issue not in his custody and which he is under obligation to support by any court order or judgment." The statute specifies that court permission cannot be granted unless the marriage applicant submits proof of compliance with the support obligation and, in addition, demonstrates that the children covered by the support order "are not then and are not likely thereafter to become public charges." No marriage license may lawfully be issued in Wisconsin to a person covered by the statute, except upon court order; any marriage entered into without compliance with § 245.10 is declared void; and persons acquiring marriage licenses in violation of the section are subject to criminal penalties.1
2
After being denied a marriage license because of his failure to comply with § 245.10, appellee brought this class action under 42 U.S.C. § 1983, challenging the statute as violative of the Equal Protection and Due Process Clauses of the Fourteenth Amendment and seeking declaratory and injunctive relief. The United States District Court for the Eastern District of Wisconsin held the statute unconstitutional under the Equal Protection Clause and enjoined its enforcement. 418 F.Supp. 1061 (1976). We noted probable jurisdiction, 429 U.S. 1089, 97 S.Ct. 1096, 51 L.Ed.2d 534 (1977), and we now affirm.
3
* Appellee Redhail is a Wisconsin resident who, under the terms of § 245.10, is unable to enter into a lawful marriage in Wisconsin or elsewhere so long as he maintains his Wisconsin residency. The facts, according to the stipulation filed by the parties in the District Court, are as follows. In January 1972, when appellee was a minor and a high school student, a paternity action was instituted against him in Milwaukee County Court, alleging that he was the father of a baby girl born out of wedlock on July 5, 1971. After he appeared and admitted that he was the child's father, the court entered an order on May 12, 1972, adjudging appellee the father and ordering him to pay $109 per month as support for the child until she reached 18 years of age. From May 1972 until August 1974, appellee was unemployed and indigent, and consequently was unable to make any support payments.2
4
On September 27, 1974, appellee filed an application for a marriage license with appellant Zablocki, the County Clerk of Milwaukee County,3 and a few days later the application was denied on the sole ground that appellee had not obtained a court order granting him permission to marry, as required by § 245.10. Although appellee did not petition a state court thereafter, it is stipulated that he would not have been able to satisfy either of the statutory prerequisites for an order granting permission to marry. First, he had not satisfied his support obligations to his illegitimate child, and as of December 1974 there was an arrearage in excess of $3,700. Second, the child had been a public charge since her birth, receiving benefits under the Aid to Families with Dependent Children program. It is stipulated that the child's benefit payments were such that she would have been a public charge even if appellee had been current in his support payments.
5
On December 24, 1974, appellee filed his complaint in the District Court, on behalf of himself and the class of all Wisconsin residents who had been refused a marriage license pursuant to § 245.10(1) by one of the county clerks in Wisconsin. Zablocki was named as the defendant, individually and as representative of a class consisting of all county clerks in the State. The complaint alleged, among other things, that appellee and the woman he desired to marry were expecting a child in March 1975 and wished to be lawfully married before that time. The statute was attacked on the grounds that it deprived appellee, and the class he sought to represent of equal protection and due process rights secured by the First, Fifth, Ninth, and Fourteenth Amendments to the United States Constitution.
6
A three-judge court was convened pursuant to 28 U.S.C. §§ 2281, 2284. Appellee moved for certification of the plaintiff and defendant classes named in his complaint, and by order dated February 20, 1975, the plaintiff class was certified under Fed.Rule Civ.Proc. 23(b)(2).4 After the parties filed the stipulation of facts, and briefs on the merits, oral argument was heard in the District Court on June 23, 1975, with a representative from the Wisconsin Attorney General's office participating in addition to counsel for the parties.
7
The three-judge court handed down a unanimous decision on August 31, 1976. The court ruled, first, that it was not required to abstain from decision under the principles set forth in Huffman v. Pursue, Ltd., 420 U.S. 592, 95 S.Ct. 1200, 43 L.Ed.2d 482 (1975), and Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971), since there was no pending state-court proceeding that could be frustrated by the declaratory and injunctive relief requested.5 Second, the court held that the class of all county clerks in Wisconsin was a proper defendant class under Rules 23(a) and (b)(2), and that neither Rule 23 nor due process required prejudgment notice to the members of the plaintiff or the defendant class.6
8
On the merits, the three-judge panel analyzed the challenged statute under the Equal Protection Clause and concluded that "strict scrutiny" was required because the classification created by the statute infringed upon a fundamental right, the right to marry.7 The court then proceeded to evaluate the interests advanced by the State to justify the statute, and, finding that the classification was not necessary for the achievement of those interests, the court held the statute invalid and enjoined the county clerks from enforcing it.8
9
Appellant brought this direct appeal pursuant to 28 U.S.C. § 1253, claiming that the three-judge court erred in finding §§ 245.10(1), (4), (5) invalid under the Equal Protection Clause. Appellee defends the lower court's equal protection holding and, in the alternative, urges affirmance of the District Court's judgment on the ground that the statute does not satisfy the requirements of substantive due process. We agree with the District Court that the statute violates the Equal Protection Clause.9
II
10
In evaluating §§ 245.10(1), (4), (5) under the Equal Protection Clause, "we must first determine what burden of justification the classification created thereby must meet, by looking to the nature of the classification and the individual interests affected." Memorial Hospital v. Maricopa County, 415 U.S. 250, 253, 94 S.Ct. 1076, 1079, 1080, 39 L.Ed.2d 306 (1974). Since our past decisions make clear that the right to marry is of fundamental importance, and since the classification at issue here significantly interferes with the exercise of that right, we believe that "critical examination" of the state interests advanced in support of the classification is required. Massachusetts Board of Retirement v. Murgia, 427 U.S. 307, 312, 314, 96 S.Ct. 2562, 2566, 2567, 49 L.Ed.2d 520 (1976); see, e. g., San Antonio Independent School Dist. v. Rodriguez, 411 U.S. 1, 17, 93 S.Ct. 1278, 1288, 36 L.Ed.2d 16 (1973).
11
The leading decision of this Court on the right to marry is Loving v. Virginia, 388 U.S. 1, 87 S.Ct. 1817, 18 L.Ed.2d 1010 (1967). In that case, an interracial couple who had been convicted of violating Virginia's miscegenation laws challenged the statutory scheme on both equal protection and due process grounds. The Court's opinion could have rested solely on the ground that the statutes discriminated on the basis of race in violation of the Equal Protection Clause. Id., at 11-12, 87 S.Ct., at 1823-1824. But the Court went on to hold that the laws arbitrarily deprived the couple of a fundamental liberty protected by the Due Process Clause, the freedom to marry. The Court's language on the latter point bears repeating:
12
"The freedom to marry has long been recognized as one of the vital personal rights essential to the orderly pursuit of happiness by free men.
13
"Marriage is one of the 'basic civil rights of man,' fundamental to our very existence and survival." Id., at 12, 87 S.Ct., at 1824, quoting Skinner v. Oklahoma ex rel. Williamson, 316 U.S. 535, 541, 62 S.Ct. 1110, 1113, 86 L.Ed. 1655 (1942).
14
Although Loving arose in the context of racial discrimination, prior and subsequent decisions of this Court confirm that the right to marry is of fundamental importance for all individuals. Long ago, in Maynard v. Hill, 125 U.S. 190, 8 S.Ct. 723, 31 L.Ed. 654 (1888), the Court characterized marriage as "the most important relation in life," id., at 205, 8 S.Ct., at 726, and as "the foundation of the family and of society, without which there would be neither civilization nor progress," id., at 211, 8 S.Ct., at 729. In Meyer v. Nebraska, 262 U.S. 390, 43 S.Ct. 625, 67 L.Ed. 1042 (1923), the Court recognized that the right "to marry, establish a home and bring up children" is a central part of the liberty protected by the Due Process Clause, id., at 399, 43 S.Ct., at 626, and in Skinner v. Oklahoma ex rel. Williamson, supra, 316 U.S. 535, 62 S.Ct. 1110, 86 L.Ed. 1655 (1942), marriage was described as "fundamental to the very existence and survival of the race," 316 U.S., at 541, 62 S.Ct., at 1113.
15
More recent decisions have established that the right to marry is part of the fundamental "right of privacy" implicit in the Fourteenth Amendment's Due Process Clause. In Griswold v. Connecticut, 381 U.S. 479, 85 S.Ct. 1678, 14 L.Ed.2d 510 (1965), the Court observed:
16
"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." Id., at 486, 85 S.Ct., at 1682.
17
See also id., at 495, 85 S.Ct., at 1687 (Goldberg, J., concurring); id., at 502-503, 85 S.Ct., at 1691-1692 (White, J., concurring in judgment).
18
Cases subsequent to Griswold and Loving have routinely categorized the decision to marry as among the personal decisions protected by the right of privacy. See generally Whalen v. Roe, 429 U.S. 589, 598-600, and nn. 23-26, 97 S.Ct. 869, 876-877, 51 L.Ed.2d 64 (1977). For example, last Term in Carey v. Population Services International, 431 U.S. 678, 97 S.Ct. 2010, 52 L.Ed.2d 675 (1977), we declared:
19
"While the outer limits of [the right of personal 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. [438], at 453-454, 92 S.Ct. [1029], at 1038-1039, 31 L.Ed.2d 349; 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)].' " Id., at 684-685, 97 S.Ct., at 2016, quoting Roe v. Wade, 410 U.S. 113, 152-153, 93 S.Ct. 705, 726-727, 35 L.Ed.2d 147 (1973).
20
See also Cleveland Board of Education v. LaFleur, 414 U.S. 632, 639-640, 94 S.Ct. 791, 796, 39 L.Ed.2d 52 (1974) ("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"); Smith v. Organization of Foster Families, 431 U.S. 816, 842-844, 97 S.Ct. 2094, 2109-2110, 53 L.Ed.2d 14 (1977); Moore v. City of East Cleveland, 431 U.S. 494, 499, 97 S.Ct. 1932, 1935-1936, 52 L.Ed.2d 531 (1977); Paul v. Davis, 424 .S. 693, 713, 96 S.Ct. 1155, 1166, 47 L.Ed.2d 405 (1976).10
21
It is not surprising that the decision to marry has been placed on the same level of importance as decisions relating to procreation, childbirth, child rearing, and family relationships. As the facts of this case illustrate, it would make little sense to recognize a right of privacy with respect to other matters of family life and not with respect to the decision to enter the relationship that is the foundation of the family in our society. The woman whom appellee desired to marry had a fundamental right to seek an abortion of their expected child, see Roe v. Wade, supra, or to bring the child into life to suffer the myriad social, if not economic, disabilities that the status of illegitimacy brings, see Trimble v. Gordon, 430 U.S. 762, 768-770, and n. 13, 97 S.Ct. 1459, 1464-1465 (1977); Weber v. Aetna Casualty & Surety Co., 406 U.S. 164, 175-176, 92 S.Ct. 1400, 1406-1407, 31 L.Ed.2d 768 (1972). Surely, a decision to marry and raise the child in a traditional family setting must receive equivalent protection. And, if appellee's right to procreate means anything at all, it must imply some right to enter the only relationship in which the State of Wisconsin allows sexual relations legally to take place.11
22
By reaffirming the fundamental character of the right to marry, we do not mean to suggest that every state regulation which relates in any way to the incidents of or prerequisites for marriage must be subjected to rigorous scrutiny. To the contrary, reasonable regulations that do not significantly interfere with decisions to enter into the marital relationship may legitimately be imposed. See Califano v. Jobst, 434 U.S. 47, 98 S.Ct. 95, 54 L.Ed.2d 228, n. 12, infra. The statutory classification at issue here, however, clearly does interfere directly and substantially with the right to marry.
23
Under the challenged statute, no Wisconsin resident in the affected class may marry in Wisconsin or elsewhere without a court order, and marriages contracted in violation of the statute are both void and punishable as criminal offenses. Some of those in the affected class, like appellee, will never be able to obtain the necessary court order, because they either lack the financial means to meet their support obligations or cannot prove that their children will not become public charges. These p rsons are absolutely prevented from getting married. Many others, able in theory to satisfy the statute's requirements, will be sufficiently burdened by having to do so that they will in effect be coerced into forgoing their right to marry. And even those who can be persuaded to meet the statute's requirements suffer a serious intrusion into their freedom of choice in an area in which we have held such freedom to be fundamental.12
III
24
When a statutory classification significantly interferes with the exercise of a fundamental right, it cannot be upheld unless it is supported by sufficiently important state interests and is closely tailored to effectuate only those interests. See, e. g., Carey v. Population Services International, 431 U.S., at 686, 97 S.Ct., at 2017; Memorial Hospital v. Maricopa County, 415 U.S., at 262-263, 94 S.Ct., at 1084-1085; San Antonio Independent School Dist. v. Rodriguez, 411 U.S., at 16-17, 93 S.Ct., at 1287-1288; Bullock v. Carter, 405 U.S. 134, 144, 92 S.Ct. 849, 856, 31 L.Ed.2d 92 (1972). Appellant asserts that two interests are served by the challenged statute: the permission-to-marry proceeding furnishes an opportunity to counsel the applicant as to the necessity of fulfilling his prior support obligations; and the welfare of the out-of-custody children is protected. We may accept for present purposes that these are legitimate and substantial interests, but, since the means selected by the State for achieving these interests unnecessarily impinge on the right to marry, the statute cannot be sustained.
25
There is evidence that the challenged statute, as originally introduced in the Wisconsin Legislature, was intended merely to establish a mechanism whereby persons with support obligations to children from prior marriages could be counseled before they entered into new marital relationships and incurred further support obligations.13 Court permission to marry was to be required, but apparently permission was automatically to be granted after counseling was completed.14 The statute actually enacted, however, does not expressly require or provide for any counseling whatsoever, nor for any automatic granting of permission to marry by the court,15 and thus it can hardly be justified as a means for ensuring counseling of the persons within its coverage. Even assuming that counseling does take place—a fact as to which there is no evidence in the record this interest obviously cannot support the withholding of court permission to marry once counseling is completed.
26
With regard to safeguarding the welfare of the out-of-custody children, appellant's brief does not make clear the connection between the State's interest and the statute's requirements. At argument, appellant's counsel suggested that, since permission to marry cannot be granted unless the applicant shows that he has satisfied his court-determined support obligations to the prior children and that those children will not become public charges, the statute provides incentive for the applicant to make support payments to his children. Tr. of Oral Arg. 17-20. This "collection device" rationale cannot justify the statute's broad infringement on the right to marry.
27
First, with respect to individuals who are unable to meet the statutory requirements, the statute merely prevents the applicant from getting married, without delivering any money at all into the hands of the applicant's prior children. More importantly, regardless of the applicant's ability or willingness to meet the statutory requirements, the State already has numerous other means for exacting compliance with support obligations, means that are at least as effective as the instant statute's and yet do not impinge upon the right to marry. Under Wisconsin law, whether the children are from a prior marriage or were born out of wedlock, court-determined support obligations may be enforced directly via wage assignments, civil contempt proceedings, and criminal penalties.16 And, if the State believes that parents of children out of their custody should be responsible for ensuring that those children do not become public charges, this interest can be achieved by adjusting the criteria used for determining the amounts to be paid under their support orders.
28
There is also some suggestion that § 245.10 protects the ability of marriage applicants to meet support obligations to prior children by preventing the applicants from incurring new support obligations. But the challenged provisions of § 245.10 are grossly underinclusive with respect to this purpose, since they do not limit in any way new financial commitments by the applicant other than those arising out of the contemplated marriage. The statutory classification is substantially overinclusive as well: Given the possibility that the new spouse will actually better the applicant's financial situation, by contributing income from a job or otherwise, the statute in many cases may prevent affected individuals from improving their ability to satisfy their prior support obligations. And, although it is true that the applicant will incur support obligations to any children born during the contemplated marriage, preventing the marriage may only result in the children being born out of wedlock, as in fact occurred in appellee's case. ince the support obligation is the same whether the child is born in or out of wedlock, the net result of preventing the marriage is simply more illegitimate children.
29
The statutory classification created by §§ 245.10(1), (4), (5) thus cannot be justified by the interests advanced in support of it. The judgment of the District Court is, accordingly,
30
Affirmed.
31
Mr. Chief Justice BURGER, concurring.
32
I join Mr. Justice MARSHALL's opinion for the Court. With all deference, Mr. Justice STEVENS' opinion does not persuade me that the analysis in the Court's opinion is in any significant way inconsistent with the Court's unanimous holding in Califano v. Jobst, 434 U.S. 47, 98 S.Ct. 95, 54 L.Ed.2d 228. Unlike the intentional and substantial interference with the right to marry effected by the Wisconsin statute at issue here, the Social Security Act provisions challenged in Jobst did not constitute an "attempt to interfere with the individual's freedom to make a decision as important as marriage," Califano v. Jobst, 434 U.S., at 54, 98 S.Ct., at 99, and, at most, had an indirect impact on that decision. It is with this understanding that I join the Court's opinion today.
33
Mr. Justice STEWART, concurring in the judgment.
34
I cannot join the opinion of the Court. To hold, as the Court does, that the Wisconsin statute violates the Equal Protection Clause seems to me to misconceive the meaning of that constitutional guarantee. The Equal Protection Clause deals not with substantive rights or freedoms but with invidiously discriminatory classifications. San Antonio Independent School Dist. v. Rodriguez, 411 U.S. 1, 59, 93 S.Ct. 1278, 1310, 36 L.Ed.2d 16 (concurring opinion). The paradigm of its violation is, of course, classification by race. McLaughlin v. Florida, 379 U.S. 184, 85 S.Ct. 283, 13 L.Ed.2d 222; Loving v. Virginia, 388 U.S. 1, 13, 87 S.Ct. 1817, 1824, 18 L.Ed.2d 1010 (concurring opinion).
35
Like almost any law, the Wisconsin statute now before us affects some people and does not affect others. But to say that it thereby creates "classifications" in the equal protection sense strikes me as little short of fantasy. The problem in this case is not one of discriminatory classifications, but of unwarranted encroachment upon a constitutionally protected freedom. I think that the Wisconsin statute is unconstitutional because it exceeds the bounds of permissible state regulation of marriage, and invades the sphere of liberty protected by the Due Process Clause of the Fourteenth Amendment.
36
* I do not agree with the Court that there is a "right to marry" in the constitutional sense. That right, or more accurately that privilege,1 is under our federal system peculiarly one to be defined and limited by state law. Sosna v. Iowa, 419 U.S. 393, 404, 95 S.Ct. 553, 559, 42 L.Ed.2d 532. A State may not only "significantly interfere with decisions to enter into marital relationship,"2 but may in many circumstances absolutely prohibit it. Surely, for example, a State may legitimately say that no one can marry his or her sibling, that no one can marry who is not at least 14 years old, that no one can marry without first passing an examination for venereal disease, or that no one can marry who has a living husband or wife. But, just as surely, in regulating the intimate human relationship of marriage, there is a limit beyond which a State may not constitutionally go.
37
The Constitution does not specifically mention freedom to marry, but it is settled that the "liberty" protected by the Due Process Clause of the Fourteenth Amendment embraces more than those freedoms expressly enumerated in the Bill of Rights. See Schware v. Board of Bar Examiners, 353 U.S. 232, 238-239, 77 S.Ct. 752, 755-756, 1 L.Ed.2d 796; Pierce v. Society of Sisters, 268 U.S. 510, 534 535, 45 S.Ct. 571, 573-574, 69 L.Ed. 1070; Meyer v. Nebraska, 262 U.S. 390, 399-400, 43 S.Ct. 625, 626-627, 67 L.Ed. 1042. Cf. Shapiro v. Thompson, 394 U.S. 618, 629-630, 89 S.Ct. 1322, 1328-1329, 22 L.Ed.2d 600; United States v. Guest, 383 U.S. 745, 757-758, 86 S.Ct. 1170, 1177-1178, 16 L.Ed.2d 239; Aptheker v. Secretary of State, 378 U.S. 500, 505, 84 S.Ct. 1659, 1663, 12 L.Ed.2d 992; Kent v. Dulles, 357 U.S. 116, 127, 78 S.Ct. 1113, 1118, 2 L.Ed.2d 1204; Truax v. Raich, 239 U.S. 33, 41, 36 S.Ct. 7, 10, 60 L.Ed. 131. And the decisions of this Court have made clear that freedom of personal choice in matters of marriage and family life is one of the liberties so protected. Cleveland Board of Education v. LaFleur, 414 U.S. 632, 639, 94 S.Ct. 791, 39 L.Ed.2d 52; Roe v. Wade, 410 U.S. 113, 152-153, 93 S.Ct. 705, 726-727, 35 L.Ed.2d 147; Loving v. Virginia, supra, 388 U.S., at 12, 87 S.Ct., at 1823; Griswold v. Connecticut, 381 U.S. 479, 485-486, 85 S.Ct. 1678, 1682-1683, 14 L.Ed.2d 510; Pierce v. Society of Sisters, supra; Meyer v. Nebraska, supra. See also Prince v. Massachusetts, 321 U.S. 158, 64 S.Ct. 438, 88 L.Ed. 645; Skinner v. Oklahoma ex rel. Williamson, 316 U.S. 535, 541, 62 S.Ct. 1110, 1113, 86 L.Ed. 1655.
38
It is evident that the Wisconsin law now before us directly abridges that freedom. The question is whether the state interests that support the abridgment can overcome the substantive protections of the Constitution.
39
The Wisconsin law makes permission to marry turn on the payment of money in support of one's children by a previous marriage or liaison. Those who cannot show both that they have kept up with their support obligations and that their children are not and will not become wards of the State are altogether prohibited from marrying.
40
If Wisconsin had said that no one could marry who had not paid all of the fines assessed against him for traffic violations, I suppose the constitutional invalidity of the law would be apparent. For while the state interest would certainly be legitimate, that interest would be both disproportionate and unrelated to the restriction of liberty imposed by the State. But the invalidity of the law before us is hardly so clear, because its restriction of liberty seems largely to be imposed only on those who have abused the same liberty in the past.
41
Looked at in one way, the law may be seen as simply a collection device additional to those used by Wisconsin and other States for enforcing parental support obligations. But since it operates by denying permission to marry, it also clearly reflects a legislative judgment that a person should not be permitted to incur new family financial obligations until he has fulfilled those he already has. Insofar as this judgment is paternalistic rather than punitive, it manifests a concern for the economic well-being of a prospective marital household. These interests are legitimate concerns of the State. But it does not follow that they justify the absolute deprivation of the benefits of a legal marriage.
42
On several occasions this Court has held that a person's inability to pay money demanded by the State does not justify the total deprivation of a constitutionally protected liberty. In Boddie v. Connecticut, 401 U.S. 371, 91 S.Ct. 780, 28 L.Ed.2d 113, the Court held that the State's legitimate purposes in collecting filing fees for divorce actions were insufficient under the Due Process Clause to deprive the indigent of access to the courts where that access was necessary to dissolve the marital relationship. In Tate v. Short, 401 U.S. 395, 91 S.Ct. 668, 28 L.Ed.2d 130 and Williams v. Illinois, 399 U.S. 235, 90 S.Ct. 2018, 26 L.Ed.2d 586, the Court held that an indigent offender could not have his term of imprisonment increased, and his liberty curtailed, simply by reason of his inability to pay a fine.
43
The principle of those cases applies here as well. The Wisconsin law makes no allowan e for the truly indigent. The State flatly denies a marriage license to anyone who cannot afford to fulfill his support obligations and keep his children from becoming wards of the State. We may assume that the State has legitimate interests in collecting delinquent support payments and in reducing its welfare load. We may also assume that, as applied to those who can afford to meet the statute's financial requirements but choose not to do so, the law advances the State's objectives in ways superior to other means available to the State. The fact remains that some people simply cannot afford to meet the statute's financial requirements. To deny these people permission to marry penalizes them for failing to do that which they cannot do. Insofar as it applies to indigents, the state law is an irrational means of achieving these objectives of the State.
44
As directed against either the indigent or the delinquent parent, the law is substantially more rational if viewed as a means of assuring the financial viability of future marriages. In this context, it reflects a plausible judgment that those who have not fulfilled their financial obligations and have not kept their children off the welfare rolls in the past are likely to encounter similar difficulties in the future. But the State's legitimate concern with the financial soundness of prospective marriages must stop short of telling people they may not marry because they are too poor or because they might persist in their financial irresponsibility. The invasion of constitutionally protected liberty and the chance of erroneous prediction are simply too great. A legislative judgment so alien to our traditions and so offensive to our shared notions of fairness offends the Due Process Clause of the Fourteenth Amendment.
II
45
In an opinion of the Court half a century ago, Mr. Justice Holmes described an equal protection claim as "the usual last resort of constitutional arguments." Buck v. Bell, 274 U.S. 200, 208, 47 S.Ct. 584, 585, 71 L.Ed. 1000. Today equal protection doctrine has become the Court's chief instrument for invalidating state laws. Yet, in a case like this one, the doctrine is no more than substantive due process by another name.
46
Although the Court purports to examine the bases for legislative classifications and to compare the treatment of legislatively defined groups, it actually erects substantive limitations on what States may do. Thus, the effect of the Court's decision in this case is not to require Wisconsin to draw its legislative classifications with greater precision or to afford similar treatment to similarly situated persons. Rather, the message of the Court's opinion is that Wisconsin may not use its control over marriage to achieve the objectives of the state statute. Such restrictions on basic governmental power are at the heart of substantive due process.
47
The Court is understandably reluctant to rely on substantive due process. See Roe v. Wade, 410 U.S., at 167-168, 93 S.Ct., at 733-734 (concurring opinion). But to embrace the essence of that doctrine under the guise of equal protection serves no purpose but obfuscation. "[C]ouched in slogans and ringing phrases," the Court's equal protection doctrine shifts the focus of the judicial inquiry away from its proper concerns, which include "the nature of the individual interest affected, the extent to which it is affected, the rationality of the connection between legislative means and purpose, the existence of alternative means for effectuating the purpose, and the degree of confidence we may have that the statute reflects the legislative concern for the purpose that would legitimately support the means chosen." Williams v. Illinois, supra, 399 U.S., at 260, 90 S.Ct., at 2031 (Harlan, J., concurring in result).
48
To conceal this appropriate inquiry invites mechanical or thoughtless application of misfocused doctrine. To bring it into the open forces a healthy and responsible recognition of the natur and purpose of the extreme power we wield when, in invalidating a state law in the name of the Constitution, we invalidate pro tanto the process of representative democracy in one of the sovereign States of the Union.
49
Mr. Justice POWELL, concurring in the judgment.
50
I concur in the judgment of the Court that Wisconsin's restrictions on the exclusive means of creating the marital bond, erected by Wis.Stat. §§ 245.10(1), (4), and (5) (1973), cannot meet applicable constitutional standards. I write separately because the majority's rationale sweeps too broadly in an area which traditionally has been subject to pervasive state regulation. The Court apparently would subject all state regulation which "directly and substantially" interferes with the decision to marry in a traditional family setting to "critical examination" or "compelling state interest" analysis. Presumably, "reasonable regulations that do not significantly interfere with decisions to enter into the marital relationship may legitimately be imposed." Ante, at 386. The Court does not present, however, any principled means for distinguishing between the two types of regulations. Since state regulation in this area typically takes the form of a prerequisite or barrier to marriage or divorce, the degree of "direct" interference with the decision to marry or to divorce is unlikely to provide either guidance for state legislatures or a basis for judicial oversight.
51
* On several occasions, the Court has acknowledged the importance of the marriage relationship to the maintenance of values essential to organized society. "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). Our decisions indicate that the guarantee of personal privacy or autonomy secured against unjustifiable governmental interference by the Due Process Clause "has some extension to activities relating to marriage, Loving v. Virginia, 388 U.S. 1, 12, 87 S.Ct. 1817, 18 L.Ed.2d 1010 (1967) . . . ." Roe v. Wade, 410 U.S. 113, 152, 93 S.Ct. 705, 726, 35 L.Ed.2d 147 (1973). "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 . . . .' " Carey v. Population Services International, 431 U.S. 678, 684-685, 97 S.Ct. 2010, 2016, 52 L.Ed.2d 675 (1977).
52
Thus, it is fair to say that there is a right of marital and familial privacy which places some substantive limits on the regulatory power of government. But the Court has yet to hold that all regulation touching upon marriage implicates a "fundamental right" triggering the most exacting judicial scrutiny.1
53
The principal authority cited by the majority is Loving v. Virginia, 388 U.S. 1, 87 S.Ct. 1817, 18 L.Ed.2d 1010 (1967). Although Loving speaks of the "freedom to marry" as "one of the vital personal rights essential to the orderly pursuit of happiness by free men," the Court focused on the miscegenation statute before it. Mr. Chief Justice Warren stated:
54
"Marriage is one of the 'basic civil rights of man,' fundamental to our very existence and survival. Skinner v. Oklahoma, 316 U.S. 535, 541, 62 S.Ct. 1110, 1113, 86 L.Ed. 1655 (1942). See a so Maynard v. Hill, 125 U.S. 190, 8 S.Ct. 723, 31 L.Ed. 654 (1888). To deny this fundamental freedom on so unsupportable a basis as the racial classifications embodied in these statutes classifications so directly subversive of the principle of equality at the heart of the Fourteenth Amendment, is surely to deprive all the State's citizens of liberty without due process of law. The Fourteenth Amendment requires that the freedom of choice to marry not be restricted by invidious racial discriminations. Under our Constitution, the freedom to marry, or not marry, a person of another race resides with the individual and cannot be infringed by the State." Id., at 12, 87 S.Ct., at 1824.
55
Thus, Loving involved a denial of a "fundamental freedom" on a wholly unsupportable basis—the use of classifications "directly subversive of the principle of equality at the heart of the Fourteenth Amendment . . . ." It does not speak to the level of judicial scrutiny of, or governmental justification for, "supportable" restrictions on the "fundamental freedom" of individuals to marry or divorce.
56
In my view, analysis must start from the recognition of domestic relations as "an area that has long been regarded as a virtually exclusive province of the States." Sosna v. Iowa, 419 U.S. 393, 404, 95 S.Ct. 553, 559, 42 L.Ed.2d 532 (1975). The marriage relation traditionally has been subject to regulation, initially by the ecclesiastical authorities, and later by the secular state. As early as Pennoyer v. Neff, 95 U.S. 714, 734-735, 24 L.Ed. 565 (1878), this Court noted that a State "has absolute right to prescribe the conditions upon which the marriage relation between its own citizens shall be created, and the causes for which it may be dissolved." The State, representing the collective expression of moral aspirations, has an undeniable interest in ensuring that its rules of domestic relations reflect the widely held values of its people.
57
"Marriage, as creating the most important relation in life, as having more to do with the morals and civilization of a people than any other institution, has always been subject to the control of the legislature. That body prescribes the age at which parties may contract to marry, the procedure or form essential to constitute marriage, the duties and obligations it creates, its effects upon the property rights of both, present and prospective, and the acts which may constitute grounds for its dissolution." Maynard v. Hill, 125 U.S. 190, 205, 8 S.Ct. 723, 726, 31 L.Ed.2d 654 (1888).
58
State regulation has included bans on incest, bigamy, and homosexuality, as well as various preconditions to marriage, such as blood tests. Likewise, a showing of fault on the part of one of the partners traditionally has been a prerequisite to the dissolution of an unsuccessful union. A "compelling state purpose" inquiry would cast doubt on the network of restrictions that the States have fashioned to govern marriage and divorce.
II
59
State power over domestic relations is not without constitutional limits. The Due Process Clause requires a showing of justification "when the government intrudes on choices concerning family living arrangements" in a manner which is contrary to deeply rooted traditions. Moore v. City of East Cleveland, Ohio, 431 U.S. 494, 499, 503-504, 97 S.Ct. 1932, 1936, 1937-1939, 52 L.Ed.2d 531 (1977) (plurality opinion). Cf. Smith v. Organization of Foster Families, 431 U.S. 816, 842-847, 97 S.Ct. 2094, 2109-2112, 53 L.Ed.2d 14 (1977). Due process constraints also limit the extent to which the State may monopolize the process of ordering certain human relationships while excluding the truly indigent from that process. Boddie v. Connecticut, 401 U.S. 371, 91 S.Ct. 780, 28 L.Ed.2d 113 (1971). Furthermore, under the Equal Protection Clause the means chosen by the State in this case must bear " 'a fair and substantial relation' " to the object of the legislation. Reed v. Reed, 404 U.S. 71, 76, 92 S.Ct. 251, 254, 30 L.Ed.2d 225 (1971), quoting Royster Guano Co. v. Virginia, 253 U.S. 412, 415, 40 S.Ct. 560, 561, 64 L.Ed. 989 (1920); Craig v. Boren, 429 U.S. 190, 210-211, 97 S.Ct. 451, 463-464, 50 L.Ed.2d 397 (1976) (Powell, J., concurring).
60
The Wisconsin measure in this case does not pass muster under either due process or equal protection standards. Appellant identifies three objectives which are supposedly furthered by the statute in question: (i) a counseling function; (ii) an incentive to satisfy outstanding support obligations; and (iii) a deterrent against incurring further obligations. The opinion of the Court amply demonstrates that the asserted counseling objective bears no relation to this statute. Ante, at 388-389. No further discussion is required here.
61
The so-called "collection device" rationale presents a somewhat more difficult question. I do not agree with the suggestion in the Court's opinion that a State may never condition the right to marry on satisfaction of existing support obligations simply because the State has alternative methods of compelling such payments. To the extent this restriction applies to persons who are able to make the required support payments but simply wish to shirk their moral and legal obligation, the Constitution interposes no bar to this additional collection mechanism. The vice inheres, not in the collection concept, but in the failure to make provision for those without the means to comply with child-support obligations. I draw support from Mr. Justice Harlan's opinion in Boddie v. Connecticut. In that case, the Court struck down filing fees for divorce actions as applied to those wholly unable to pay, holding "that a State may not, consistent with the obligations imposed on it by the Due Process Clause of the Fourteenth Amendment, pre-empt the right to dissolve this legal relationship without affording all citizens access to the means it has prescribed for doing so." 401 U.S. at 383, 91 S.Ct. at 789. The monopolization present in this case is total, for Wisconsin will not recognize foreign marriages that fail to conform to the requirements of § 245.10.2
62
The third justification, only obliquely advanced by appellant, is that the statute preserves the ability of marriage applicants to support their prior issue by preventing them from incurring new obligations. The challenged provisions of § 245.10 are so grossly underinclusive with respect to this objective, given the many ways that additional financial obligations may be incurred by the applicant quite apart from a contemplated marriage, that the classification "does not bear a fair and substantial relation to the object of the legislation." Craig v. Boren, supra, 429 U.S., at 211, 97 S.Ct., at 464 (Powell, J., concurring). See Eisenstadt v. Baird, 405 U.S. 438, 447-450, 92 S.Ct. 1029, 1035-1037, 31 L.Ed.2d 349 (1972); cf. Moore v. City of East Cleveland, Ohio, 431 U.S., at 499-500, 97 S.Ct., at 1935-1936 (plurality opinion).
63
The marriage applicant is required by the Wisconsin statute not only to submit proof of compliance with his support obligation, but also to demonstrate—in some unspecified way—that his children "are not then and are not likely thereafter to become public charges."3 This statute does more than simply "fail to alleviate the consequences of differences in economic circumstances that exist wholly apart from any state action." Griffin v. Illinois, 351 U.S. 12, 34, 76 S.Ct. 585, 598, 100 L.Ed. 891 (1956) (Harlan, J., dissenting). It tells the truly indigent, whether they have met their support obligations or not, that they may not marry so long as their children are public charges or there is a danger that their children might go on public assistance in the future.4 Apparently, no other jurisdiction has embraced this approach as a method of reducing the number of children on public assistance. Because the State has not established a justification for this unprecedented foreclosure of marriage to many of its citizens solely because of their indigency, I concur in the judgment of the Court.
64
Mr. Justice STEVENS, concurring in the judgment.
65
Because of the tension between some of the language in Mr. Justice MARSHALL's opinion for the Court and the Court's unanimous holding in Califano v. Jobst, 434 U.S. 47, 98 S.Ct. 95, 54 L.Ed.2d 228, 1977, a further exposition of the reasons why the Wisconsin statute offends the Equal Protection Clause of the Fourteenth Amendment is necessary.
66
When a State allocates benefits or burdens, it may have valid reasons for treating married and unmarried persons differently. Classification based on marital status has been an accepted characteristic of tax legislation, Selective Service rules, and Social Security regulations. As cases like Jobst demonstrate, such laws may "significantly interfere with decisions to enter into the marital relationship." Ante, at 386. That kind of interference, however, is not a sufficient reason for invalidating every law reflecting a legislative judgm nt that there are relevant differences between married persons as a class and unmarried persons as a class.1
67
A classification based on marital status is fundamentally different from a classification which determines who may lawfully enter into the marriage relationship.2 The individual's interest in making the marriage decision independently is sufficiently important to merit special constitutional protection. See Whalen v. Roe, 429 U.S. 589, 599-600, 97 S.Ct. 869, 876-877, 51 L.Ed.2d 64. It is not, however, an interest which is constitutionally immune from evenhanded regulation. Thus, laws prohibiting marriage to a child, a close relative, or a person afflicted with venereal disease, are unchallenged even though they "interfere directly and substantially with the right to marry." Ante, at 387. This Wisconsin statute has a different character.
68
Under this statute, a person's economic status may determine his eligibility to enter into a lawful marriage. A noncustodial parent whose children are "public charges" may not marry even if he has met his court-ordered obligations.3 Thus, within the class of parents who have fulfilled their court-ordered obligations, the rich may marry and the poor may not. This type of statutory discrimination is, I believe, totally unprecedented,4 as well as inconsistent with our tradition of administering justice equally to the rich and to the poor.5
69
The statute appears to reflect a legislative judgment that persons who have demonstrated an inability to support their offspring should not be permitted to marry and thereafter to bring additional children into the world.6 Even putting to one side the growing number of childless marriages and the burgeoning number of children born out of wedlock, that sort of reasoning cannot justify this deliberate discrimination against the poor.
70
The statute prevents impoverished parents from marrying even though their intended spouses are economically independent. Presumably, the Wisconsin Legislature assumed (a) that only fathers would be affected by the legislation, and (b) that they would never marry employed women. The first assumption ignores the fact that fathers are sometimes awarded custody,7 and the second ignores the composition of today's work force.8 To the extent that the statute denies a hard-pressed parent any opportunity to prove that an intended marriage will ease rather than aggravate his financial straits, it not only rests on unreliable premises, but also defeats its own objectives.
71
These questionable assumptions also explain why this statutory blunderbuss is wide of the target in another respect. The prohibition on marriage applies to the noncustodial parent but allows the parent who has custody to marry without the State's leave. Yet the danger that new children will further strain an inadequate budget is equally great for custodial and non-custodial parents, unless one assumes (a) that only mothers will ever have custody and (b) that they will never marry unemployed men.
72
Characteristically, this law fails to regulate the marriages of those parents who are least likely to be able to afford another family, for it applies only to parents under a court order to support their children. Wis.Stat. § 245.10(1) (1973). The very poorest parents are unlikely to be the objects of support orders.9 If the State meant to prevent the marriage of those who have demonstrated their inability to provide for children, it overlooked the most obvious targets of legislative concern.
73
In sum, the public-charge provision is either futile or perverse insofar as it applies to childless couples, couples who will have illegitimate children if they are forbidden to marry, couples whose economic status will be improved by marriage, and couples who are so poor that the marriage will have no impact on the welfare status of their children in any event. Even assuming that the right to marry may sometimes be denied on economic grounds, this clumsy and deliberate legislative discrimination between the rich and the poor is irrational in so many ways that it cannot withstand scrutiny under the Equal Protection Clause of the Fourteenth Amendment.10
74
Mr. Justice REHNQUIST, dissenting.
75
I substantially agree with my Brother POWELL's reasons for rejecting the Court's conclusion that marriage is the sort of "fundamental right" which must invariably trigger the strictest judicial scrutiny. I disagree with his imposition of an "intermediate" standard of review, which leads him to conclude that the statute, though generally valid as an "additional collection mechanism" offends the Constitution by its "failure to make provision for those without the means to comply with child-support obligations." Ante, at 400. For similar reasons, I disagree with my Brother STEWART's conclusion that the statute is invalid for its failure to exempt those persons who "simply cannot afford to meet the statute's financial requirements." Ante, at 394. I would view this legislative judgment in the light of the traditional presumption of validity. I think that under the Equal Protection Clause the statute need pass only the "rational basis test," Dandridge v. Williams, 397 U.S. 471, 485, 90 S.Ct. 1153, 1161, 25 L.Ed.2d 491 (1970), and that under the Due Process Clause it need only be shown that it bears a rational relation to a constitutionally permissible objective. Williamson v. Lee Optical Co., 348 U.S. 483, 491, 75 S.Ct. 461, 466, 99 L.Ed. 563 (1955); Ferguson v. Skrupa, 372 U.S. 726, 733, 83 S.Ct. 1028, 1032, 10 L.Ed.2d 93 (1963) (Harlan, J., concurring). The statute so viewed is a permissible exercise of the State's power to regulate family life and to assure the support of minor children, despite its possible imprecision in the extreme cases envisioned in the concurring opinions.
76
Earlier this Term the traditional standard of review was applied in Califano v. Jobst, 434 U.S. 47, 98 S.Ct. 95, 54 L.Ed.2d 228, 1977, despite the claim that the statute there in question burdened the exercise of the right to marry. The extreme situation considered there involved a permanently disabled appellee whose benefits under the Social Security Act had been terminated because of his marriage to an equally disabled woman who was not, however, a beneficiary under the Act. This Court recognized that Congress, in granting the original benefit, could reasonably assume that a disabled adult child remained dependent upon his parents for support. The Court concluded that, upon a beneficiary's marriage, Congress could terminate his benefits, because "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." 434 U.S., at 53, 98 S.Ct., at 99. Although that assumption had been proved false as applied in that individual case, the statute was nevertheless rational. "The broad legislative classification must be judged by reference to characteristics typical of the affected classes rather than by focusing on selected, atypical examples." 434 U.S., at 55, 98 S.Ct., at 100.
77
The analysis applied in Jobst is equally applicable here. Here, too, the Wisconsin Legislature has "adopted this rule in the course of constructing a complex social welfare system that necessarily deals with the intimacies of family life." 434 U.S., at 54 n. 11, 98 S.Ct., at 100. Because of the limited amount of funds available for the support of needy children, the State has an exceptionally strong interest in securing as much support as their parents are able to pay. Nor does the extent of the burden imposed by this statute so differentiate it from that considered in Jobst as to warrant a different result. In the case of some applicants, this statute makes the proposed marriage legally impossible for financial reasons; in a similar number of extreme cases, the Social Security Act makes the proposed marriage practically impossible for the same reasons. I cannot conc ude that such a difference justifies the application of a heightened standard of review to the statute in question here. In short, I conclude that the statute, despite its imperfections, is sufficiently rational to satisfy the demands of the Fourteenth Amendment.
78
Two of the opinions concurring in the judgment seem to agree that the statute is sufficiently rational except as applied to the truly indigent. Ante, at 394 (STEWART, J.); ante, at 400 (POWELL, J.). Under this view, the statute could, I suppose, be constitutionally applied to forbid the marriages of those applicants who had willfully failed to contribute so much as was in their means to the support of their dependent children. Even were I to agree that a statute based upon generally valid assumptions could be struck down on the basis of "selected, atypical examples," Jobst, 434 U.S., at 55, 98 S.Ct., at 100, I could not concur in the judgment of the Court, because there has been no showing that this appellee is so truly indigent that the State could not refuse to sanction his marriage.
79
Under well-established rules of standing, a litigant may assert the invalidity of a statute only as applied in his case. "[A] person to whom a statute may constitutionally be applied will not be heard to challenge that statute on the ground that it may conceivably be applied unconstitutionally to others, in situations not before the Court." Broadrick v. Oklahoma, 413 U.S. 601, 610, 93 S.Ct. 2908, 2915, 37 L.Ed.2d 830 (1973). See also Barrows v. Jackson, 346 U.S. 249, 256-257, 73 S.Ct. 1031, 1035, 97 L.Ed. 1586 (1953). We have made a limited exception to this rule in cases arising under the First Amendment, allowing the invalidation of facially overbroad statutes to guard against a chilling effect on the exercise of constitutionally protected free speech. See, e. g., Coates v. City of Cincinnati, 402 U.S. 611, 91 S.Ct. 1686, 29 L.Ed.2d 214 (1971). But no claim based on the First Amendment is or could be made by this appellee.
80
Appellee's standing to contest the validity of the statute as applied to him must be considered on the basis of the facts as stipulated before the District Court. The State conceded, without requiring proof, that "[f]rom May of 1972 until August of 1974, [appellee] was unemployed and indigent and unable to pay any sum for support of his issue." App. 21. There is no stipulation in this record that appellee was indigent at the time he was denied a marriage license on September 30, 1974, or that he was indigent at the time he filed his complaint on December 24, 1974, or that he was indigent at the time the District Court rendered its judgment on August 31, 1976. All we know of his more recent financial condition is his counsel's concession at oral argument that appellee had married in Illinois, Tr. of Oral Arg. 23, clearly demonstrating that he knows how to obtain funds for a purpose which he deems sufficiently important. On these inartfully stipulated facts, it cannot be said, even now, that this appellee is incapable of discharging the arrearage as required by the support order and contributing sufficient funds in the future to remove his child from the welfare rolls. Therefore, even under the view taken by the opinions concurring in the judgment, appellee has not shown that this statute is unconstitutional as applied to him.
81
Because of my conclusion that the statute is valid despite its possible application to the truly indigent, I need not determine whether the named appellee's failure to establish his indigency should preclude this Court from granting injunctive relief to the indigent members of the class which appellee purports to represent.* Our decisions have demonstrated that, where the claim of the named representative has become moot, this Court is not bound to dismiss the action but may consider a variety of factors in determining whether to proceed. See generally Kremens v. Bartley, 431 U.S. 119, 129-135, 97 S.Ct. 1709, 715-1718, 52 L.Ed.2d 184 (1977). It has never been explicitly determined whether similar considerations apply where the named representative never had a valid claim of his own. But see Allee v. Medrano, 416 U.S. 802, 828-829, and n. 4, 94 S.Ct. 2191, 2207, 40 L.Ed.2d 566 (1974) (Burger, C. J., concurring and dissenting). In light of my view on the merits, I am content to save this question for another day.
82
I would reverse the judgment of the District Court.
1
Wis onsin Stat. § 245.10 provides in pertinent part:
"(1) No Wisconsin resident having minor issue not in his custody and
which he is under obligation to support by any court order or judgment, may marry in this state or elsewhere, without the order of either the court of this state which granted such judgment or support order, or the court having divorce jurisdiction in the county of this state where such minor issue resides or where the marriage license application is made. No marriage license shall be issued to any such person except upon court order. The court, within 5 days after such permission is sought by verified petition in a special proceeding, shall direct a court hearing to be held in the matter to allow said person to submit proof of his compliance with such prior court obligation. No such order shall be granted, or hearing held, unless both parties to the intended marriage appear, and unless the person, agency, institution, welfare department or other entity having the legal or actual custody of such minor issue is given notice of such proceeding by personal service of a copy of the petition at least 5 days prior to the hearing, except that such appearance or notice may be waived by the court upon good cause shown, and, if the minor issue were of a prior marriage, unless a 5-day notice thereof is given to the family court commissioner of the county where such permission is sought, who shall attend such hearing, and to the family court commissioner of the court which granted such divorce judgment. If the divorce judgment was granted in a foreign court, service shall be made on the clerk of that court. Upon the hearing, if said person submits such proof and makes a showing that such children are not then and are not likely thereafter to become public charges, the court shall grant such order, a copy of which shall be filed in any prior proceeding . . . or divorce action of such person in this state affected thereby; otherwise permission for a license shall be withheld until such proof is submitted and such showing is made, but any court order withholding such permission is an appealable order. Any hearing under this section may be waived by the court if the court is satisfied from an examination of the court records in the case and the family support records in the office of the clerk of court as well as from disclosure by said person of his financial resources that the latter has complied with prior court orders of judgments affecting his minor children, and also has shown that such children are not then and are not likely thereafter to become public charges. No county clerk in this state shall issue such license to any person required to comply with this section unless a certified copy of a court order permitting such marriage is filed with said county clerk.
* * * * *
"(4) If a Wisconsin resident having such support obligations of a minor, as stated in sub. (1), wishes to marry in another state, he must, prior to such marriage, obtain permission of the court under sub. (1), except that in a hearing ordered or held by the court, the other party to the proposed marriage, if domiciled in another state, need not be present at the hearing. If such other party is not present at the hearing, the judge shall within 5 days send a copy of the order of permission to marry, stating the obligations of support, to such party not present.
"(5) This section shall have extraterritorial effect outside the state; and s. 245.04(1) and (2) [providing that out-of-state marriages to circumvent Wisconsin law are void] are applicable hereto. Any marriage contracted without compliance with this section, where such compliance is required, shall be void, whether entered into in this state or elsewhere."
The criminal penalties for violation of § 245.10 are set forth in Wis.Stat. § 245.30(1)(f) (1973). See State v. Mueller, 44 Wis.2d 387, 171 N.W.2d 414 (1969) (upholding criminal prosecution for failure to comply with § 245.10).
2
The record does not indicate whether appellee obtained employment subsequent to August 1974.
3
Under Wisconsin law, "[m]arriage may be validly solemnized and contracted [within the] state only after a license has been issued therefor," Wis.Stat. § 245.16 (1973), and (with an exception not relevant here) the license must be obtained from "the county clerk of the county in which one of the parties has resided for at least 30 days immediately prior to making application therefor," § 245.05.
4
The order defined the plaintiff class as follows:
"All Wisconsin residents who have minor issue not in their custody and who are under an obligation to support such minor issue by any court order or judgment and to whom the county clerk has refused to issue a marriage license without a court order, pursuant to § 245.10(1), Wis.Stats. (1971)."
The order also established a briefing schedule on appellee's motion for certification of a defendant class. Although appellee thereafter filed a brief in support of the motion, appellant never submitted a brief in opposition.
5
418 F.Supp. 1061, 1064-1065. The possibility that abstention might be required under our decision in Huffman v. Pursue, Ltd., was raised by the District Court, sua sponte, at argument before that court. Appellee subsequently filed a memorandum contending that abstention was not required; appellant did not submit a response. Appellant now argues, on this appeal, that the District Court failed to consider the "doctrine of federalism" set forth in Younger and Huffman. According to appellant, proper consideration of this doctrine would have led the District Court to require appellee to bring suit first in the state courts, in order to give those courts the initial opportunity to pass on his constitutional attack against § 245.10. We cannot agree.
First, the District Court was correct in finding Huffman and Younger inapplicable, since there was no pending state-court proceeding in which appellee could have challenged the statute. See Wooley v. Maynard, 430 U.S. 705, 710-711, 97 S.Ct. 1428, 1433, 51 L.Ed.2d 752 (1977).
Second, there are no ambiguities in the statute for the state courts to resolve, and—absent issues of state law that might affect the posture of the federal constitutional claims—this Court has uniformly held that individuals seeking relief under 42 U.S.C. § 1983 need not present their federal constitutional claims in state court before coming to a federal forum. See, e. g., Wisconsin v. Constantineau, 400 U.S. 433, 437-439, 91 S.Ct. 507, 510, 511, 27 L.Ed.2d 515 (1971); Zwickler v. Koota, 389 U.S. 241, 245-252, 88 S.Ct. 391, 393-397, 19 L.Ed.2d 444 (1967). See also Huffman v. Pursue, Ltd., 420 U.S., at 609-610, n. 21, 95 S.Ct., at 1211.
Appellant also contends on this appeal, for the first time, that the District Court should have abstained out of "regard for the independence of state governments in carrying out their domestic policy." Brief for Appellant 16, citing Burford v. Sun Oil Co., 319 U.S. 315, 317-318, 63 S.Ct. 1098, 1098-1100, 87 L.Ed. 1424 (1943). Unlike Burford, however, this case does not involve complex issues of state law, resolution of which would be "disruptive of state efforts to establish a coherent policy with respect to a matter of substantial public concern." Colorado River Water Conservation Dist. v. United States, 424 U.S. 800, 814-815, 96 S.Ct. 1236, 1245, 47 L.Ed.2d 483 (1976). And there is, of course no doctrine requiring abstention merely because resolution of a federal question may result in the overturning of a state policy.
6
418 F.Supp., at 1065-1068. Appellant has not appealed the District Court's finding that the defendant class satisfied the requirements of Rules 23(a) and (b)(2), the court's definition of the class to include all county clerks in Wisconsin, or the requirement that appellant send a copy of the judgment to each of the county clerks, and those issues are therefore not before us. Appellant does claim on this appeal that due process required prejudgment notice to the members of the defendant class if the judgment was to be binding on them. As this issue has been framed, however, we cannot perceive appellant's "personal stake in the outcome," Baker v. Carr, 369 U.S. 186, 204, 82 S.Ct. 691, 703, 7 L.Ed.2d 663 (1962), and we therefore hold that appellant lacks standing to raise the claim. Appellant would be bound, regardless of what we concluded as to the judgment's binding effect on absent members of the defendant class, and appellant has not asserted that he was injured in any way by the maintenance of this suit as a defendant class action. Indeed, appellant never filed a brief in the District Court in opposition to the defendant class, despite being invited to do so, see n. 4, supra, and the notice issue was briefed for the first time on this appeal, after the Wisconsin Attorney General took over as lead counsel for appellant. In these circumstances, the absent class members must be content to assert their due process rights for themselves, through collateral attack or otherwise. See Hansberry v. Lee, 311 U.S. 32, 61 S.Ct. 115, 85 L.Ed. 22 (1940); Advisory Committee Notes on 1966 Amendment to Rule 23, 28 U.S.C. App., p. 7768, 39 F.R.D. 69, 106, citing Restatement of Judgments § 86, Comment (h), § 116 (1942). We note, in any event, that in light of our disposition of this case and the recent revision of Wisconsin's Family Code, see n. 9, infra, the question of binding effect on the absent members may be wholly academic.
7
418 F.Supp., at 1068-1071. The court found an additional justification for applying strict scrutiny in the fact that the statute discriminates on the basis of wealth, absolutely denying individuals the opportunity to marry if they lack sufficient financial resources to make the showing required by the statute. Id., at 1070, citing San Antonio Independent School Dist. v. Rodriguez, 411 U.S. 1, 20, 93 S.Ct. 1278, 1289, 36 L.Ed.2d 16 (1973).
8
418 F.Supp., at 1071-1073.
9
Counsel for appellee informed us at oral argument that appellee was married in Illinois some time after argument on the merits in the District Court, but prior to judgment. Tr. of Oral Arg. 23, 30-31. This development in no way moots the issues before us. First, appellee's individual claim is unaffected, since he is still a Wisconsin resident and the Illinois marriage is consequently void under the provisions of §§ 245.10(1), (4), (5). See State v. Mueller, 44 Wis.2d 387, 171 N.W.2d 414 (1969) (§ 245.10 has extraterritorial effect with respect to Wisconsin residents). Second, regardless of the current status of appellee's individual claim, the dispute over the statute's constitutionality remains live with respect to members of the class appellee represents, and the Illinois marriage took place well after the class was certified. See Franks v. Bowman Transp. Co., 424 U.S. 747, 752-757, 96 S.Ct. 1251, 1258-1261, 47 L.Ed.2d 444 (1976); Sosna v. Iowa, 419 U.S. 393, 397-403, 95 S.Ct. 553, 556-559, 42 L.Ed.2d 532 (1975).
After argument in this Court, the Acting Governor of Wisconsin signed into law a comprehensive revision of the State's marriage laws, effective February 1, 1978. 1977 Wis.Laws, ch. 105, Wis.Legis.Serv. (West 1977). The revision added a new section (§ 245.105) which appears to be a somewhat narrower version of § 245.10. Enactment of this new provision also does not moot our inquiry into the constitutionality of § 245.10. By its terms, the new section "shall be enforced only when the provisions of § 245.10 and utilization of the procedures, thereunder are stayed or enjoined by the order of any court." § 245.105(8). As we read this somewhat unusual proviso, and as it was explained to us at argument by the representative of the Wisconsin Attorney General, Tr. of Oral Arg. 4-10, the new section is meant only to serve as a stopgap during such time as enforcement of § 245.10 is barred by court order. Were we to vacate the District Court's injunction on this appeal, § 245.10 would go back into full force and effect; accordingly, the dispute over its validity is quite live. We express no judgment on the constitutionality of the new section.
10
Further support for the fundamental importance of marriage is found in our decisions dealing with rights of access to courts in civil cases. In Boddie v. Connecticut, 401 U.S. 371, 91 S.Ct. 780, 28 L.Ed.2d 113 (1971), we wrote that "marriage involves interests of basic importance in our society," id., at 376, 91 S.Ct., at 785, and held that filing fees for divorce actions violated the due process rights of indigents unable to pay the fees. Two years later, in United States v. Kras, 409 U.S. 434, 93 S.Ct. 631, 34 L.Ed.2d 626 (1973), the Court concluded that filing fees in bankruptcy actions did not deprive indigents of due process or equal protection. Boddie was distinguished on several grounds, including the following:
"The denial of access to the judicial forum in Boddie touched directly . . . on the marital relationship and on the associational interests that surround the establishment and dissolution of that relationship. On many occasions we have recognized the fundamental importance of these interests under our Constitution. See, for example, Loving v. Virginia . . . ." 409 U.S., at 444, 93 S.Ct., at 637.
See also id., at 446, 93 S.Ct., at 638 ("Bankruptcy is hardly akin to free SPEECH OR MARRIAGE . . . [,] RIGHTS . . . that the court has come to regard as fundamental").
11
Wisconsin punishes fornication as a criminal offense:
"Whoever has sexual intercourse with a person not his spouse may be fined not more than $200 or imprisoned not more than 6 months or both." Wis.Stat. § 944.15 (1973).
12
The directness and substantiality of the interference with the freedom to marry distinguish the instant case from Califano v. Jobst, 434 U.S. 47, 98 S.Ct. 95, 54 L.Ed.2d 228. In Jobst, we upheld sections of the Social Security Act providing, inter alia, for termination of a dependent child's benefits upon marriage to an individual not entitled to benefits under the Act. As the opinion for the Court expressly noted, the rule terminating benefits upon marriage was not "an attempt to interfere with the individual's freedom to make a decision as important as marriage." 434 U.S., at 54, 98 S.Ct., at 99. The Social Security provisions placed no direct legal obstacle in the path of persons desiring to get married, and—notwithstanding our Brother REHNQUIST's imaginative recasting of the case, see dissenting opinion, post, at 408—there was no evidence that the laws significantly discouraged, let alone made "practically impossible," any marriages. Indeed, the provisions had not deterred the individual who challenged the statute from getting married, even though he and his wife were both disabled. See Califano v. Jobst, 434 U.S., at 48, 98 S.Ct., at 96. See also 434 U.S., at 57, n. 17, 98 S.Ct., at 101 (because of availability of other federal benefits, total payments to the Jobsts after marriage were only $20 per month less than they would have been had Mr. Jobst's child benefits not been terminated).
13
§ e Wisconsin Legislative Council Notes, 1959, reprinted following Wis.Stat.Ann. § 245.10 (Supp.1977-1978); 5 Wisconsin Legislative Council, General Report 68 (1959).
14
See 5 ibid.
15
Although the statute as originally enacted in 1959 did not provide for automatic granting of permission, it did allow the court to grant permission if it found "good cause" for doing so, even in the absence of a showing that support obligations were being met. 1959 Wis.Laws, ch. 595, § 17. In 1961, the good-cause provision was deleted, and the requirement of a showing that the out-of-custody children are not and will not become public charges was added. 1961 Wis.Laws, ch. 505, § 11.
16
Wisconsin statutory provisions for civil enforcement of support obligations to children from a prior marriage include §§ 247.232 (wage assignment), 247.265 (same), and 295.03 (civil contempt). Support obligations arising out of paternity actions may be civilly enforced under §§ 52.21(2) (wage assignment) and 52.40 (civil contempt). See also § 52.39. In addition, failure to meet support obligations may result in conviction of the felony offense of abandonment of a minor child, § 52.05, or the misdemeanor of failure to support a minor child, § 52.055.
1
See Hohfeld, Some Fundamental Legal Conceptions as Applied in Judicial Reasoning, 23 Yale L.J. 16 (1913).
2
See ante, at 386.
1
Although the cases cited in the text indicate that there is a sphere of privacy or autonomy surrounding an existing marital relationship into which the State may not lightly intrude, they do not necessarily suggest that the same barrier of justification blocks regulation of the conditions of entry into or the dissolution of the marital bond. See generally Henkin, Privacy and Autonomy, 74 Colum.L.Rev. 1410, 1429-1432 (1974).
2
Boddie was an "as applied" challenge; it does not require invalidation of § 245.10 as unconstitutional on its face. In ordinary circumstances, the Court should merely require that Wisconsin permit those members of the appellee class to marry if they can demonstrate "the bona fides of [their] indigency," 401 U.S., at 382, 91 S.Ct., at 788. The statute in question, however, does not contain a severability clause, and the Wisconsin Legislature has made specific provision for the contingency that "utilization of the procedures [under § 245.10 may be] stayed or enjoined by the order of any court." In the event of such a stay or injunction after February 1, 1978, 1977 Wis.Laws, ch. 105, § 3 (Wis.Stat. § 245.105(3)), Wis.Legis.Serv. (West 1977), provides that "permission to remarry may likewise be granted to any petitioner who submits clear and convincing proof to the court that for reasonable cause he or she was not able to comply with a previous court obligation for child support."
The dissenting opinion of Mr. Justice Rehnquist suggests that appellee may no longer be "incapable of discharging the arrearage as required by the support order and contributing sufficient funds in the future to remove his child from the welfare rolls." Post, at 410. There is no basis in the record for such speculation. The parties entered into a stipulation that as of August 1974, a month before appellee was denied a marriage license, appellee "was unemployed and indigent and unable to pay any sum for support of his issue." App. 21. In its opinion dated August 31, 1976, the District Court noted that "[i]n Redhail's case, because of his poverty he has been unable to satisfy the support obligation ordered in the paternity action, and, hence, a state court could not grant him permission to m rry." 418 F.Supp. 1061, 1070 (E.D.Wis.). Appellant has not challenged the factual predicate of the trial court's determination, or even intimated that appellee's financial situation has improved materially. Such matters, of course, may be inquired into by the local court pursuant to the new procedures that will go into effect after February 1, 1978.
3
The plaintiff in the companion case, Leipzig v. Pallamolla, 418 F.Supp. 1073 (E.D.Wis.1976), had complied with his support obligations but was denied permission to marry because his four minor children received welfare benefits.
4
Quite apart from any impact on the truly indigent, the statute appears to "confer upon [the judge] a license for arbitrary procedure," Kent v. United States, 383 U.S. 541, 553, 86 S.Ct. 1045, 1053, 16 L.Ed.2d 84 (1966), in the determination of whether an applicant's children are "likely thereafter to become public charges." A serious question of procedural due process is raised by this feature of standardless discretion, particularly in light of the hazards of prediction in this area.
1
In Jobst, we pointed out that "it was rational for Congress to assume that marital status is a relevant test of probable dependency . . . ." We had explained:
"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." At 53, 98 S.Ct., at 99.
2
Jobst is in the former category; Loving v. Virginia, 388 U.S. 1, 87 S.Ct. 1817, 18 L.Ed.2d 1010, is in the latter.
3
As Mr. Justice POWELL demonstrates, a constitutional defect in this provision invalidates the entire statute. Ante, at 401 n. 2.
4
The economic aspects of a prospective marriage are unquestionably relevant to almost every individual's marriage decision. But I know of no other state statute that denies the individual marriage partners the right to assess the financial consequences of their decision independently. I seriously question whether any limitation on the right to marry may be predicated on economic status, but that question need not be answered in this case.
5
This tradition explains why each member of the federal judiciary has sworn or affirmed that he will "do equal right to the poor and to the rich . . . ." See 28 U.S.C. § 453.
6
The "public charge" provision, which falls on parents who have faithfully met their obligations, but who are unable to pay enough to remove their children from the welfare rolls, obviously cannot be justified by a state interest in assuring the payment of child support. And, of course, it would be absurd for the State to contend that an interest in providing paternalistic counseling supports a total ban on marriage.
7
The Wisconsin Legislature has itself provided:
"In determining the parent with whom a child shall remain, the court shall consider all facts in the best interest of the child and shall not prefer one parent over the other solely on the basis of the sex of the parent." Wis.Stat. § 247.24(3) (1977).
8
Plainly, both of these assumptions are the product of a habitual way of thinking about male and female roles "rather than analysis or actual reflection." See Califano v. Goldfarb, 430 U.S. 199, 222, 97 S.Ct. 1021, at 1034, 51 L.Ed.2d 270 (STEVENS, J., concurring in judgment).
9
Although Wisconsin precedents are scarce, the State's courts seem to follow the general rule that child-support orders are heavily influenced by the parent's ability to pay. See H. Clark, Law of Domestic Relations 496 (1968); see also Miller v. Miller, 67 Wis.2d 435, 227 N.W.2d 626 (1975). A parent who is so disabled that he will never earn enough to pay child support is unlikely to be sued, and a court order is unlikely to be granted. Cf. Ponath v. Hedrick, 22 Wis.2d 382, 126 N.W.2d 28 (1964) (social security benefits not to be included in determining relative's ability to make support payments).
10
Neither the fact that the appellee's interest is constitutionally protected, nor the fact that the classification is based on economic status is sufficient to justify a "level of scrutiny" so strict that a holding of unconstitutionality is virtually foreordained. On the other hand, the presence of these factors precludes a holding that a rational expectation of occasional and random benefit is sufficient to demonstrate compliance with the c nstitutional command to govern impartially. See Craig v. Boren, 429 U.S. 190, 211, 97 S.Ct. 451, 464, 50 L.Ed.2d 397 (Stevens, J., concurring).
*
Ordinarily, "a class representative must be part of the class and 'possess the same interest and suffer the same injury' as the class members." East Texas Motor Freight v. Rodriguez, 431 U.S. 395, 403, 97 S.Ct. 1891, 1896, 52 L.Ed.2d 453 (1977), quoting Schlesinger v. Reservists Committee to Stop the War, 418 U.S. 208, 216, 94 S.Ct. 2925, 2929, 41 L.Ed.2d 706 (1974). At least where the issue is properly raised, an appellate court may consider the representative's failure to establish his own claim in determining whether a class action may be maintained. See, e. g., Donaldson v. Pillsbury Co., 554 F.2d 825, 831-832, n. 5 (CA8 1977); cf. East Texas, supra, 431 U.S., at 406 n. 12, 97 S.Ct., at 1898. In some instances, the court may eliminate from the class those persons whom the named plaintiff may not adequately represent. La Mar v. H & B Novelty & Loan Co., 489 F.2d 461 (CA9 1973). In this case, such an approach could require the dismissal of the class action altogether, since appellee can represent no one with a valid claim. The State, however, has inexplicably failed to challenge the certification of the plaintiff class, either here or in the trial court.
| 12
|
434 U.S. 412
98 S.Ct. 694
54 L.Ed.2d 648
CHRISTIANSBURG GARMENT CO., Petitioner,v.EQUAL EMPLOYMENT OPPORTUNITY COMMISSION.
No. 76-1383.
Argued Nov. 28, 29, 1977.
Decided Jan. 23, 1978.
Syllabus
Two years after a racial discrimination charge under Title VII of the Civil Rights Act of 1964 had been filed against petitioner company, respondent, the Equal Employment Opportunity Commission (EEOC), notified the complainant that its conciliation efforts had failed and that she had the right to sue the company, which she did not do. Almost two years later, § 14 of the 1972 amendments to Title VII authorized the EEOC to sue in its own name on charges "pending" with the EEOC on the effective date of the amendments. The EEOC then sued petitioner on complainant's charge and the District Court granted petitioner's motion for summary judgment on the ground that the charge had not been "pending" at the time of the 1972 amendments. The company then petitioned for the allowance of attorney's fees against the EEOC pursuant to § 706(k) of Title VII, which authorizes a district court in its discretion to allow the prevailing party a reasonable attorney's fee. Finding that the EEOC's action in bringing the suit was not "unreasonable or meritless" and that its statutory interpretation of § 14 was not "frivolous," the District Court ruled that an award to petitioner of attorney's fees was not justified. The Court of Appeals affirmed. Held :
1. Although a prevailing plaintiff in a Title VII proceeding is ordinarily to be awarded attorney's fees by the district court in all but special circumstances, a prevailing defendant is to be awarded such fees only when the court in the exercise of its discretion has found that the plaintiff's action was frivolous, unreasonable, or without foundation. Pp. 415-422.
(a) There are at least two strong equitable considerations favoring an attorney's fee award to a prevailing Title VII plaintiff that are wholly absent in the case of a Title VII defendant, viz. the plaintiff is Congress' chosen instrument to vindicate "a policy that Congress considered of the highest priority," Newman v. Piggie Park Enterprises, 390 U.S. 400, 402, 88 S.Ct. 964, 19 L.Ed.2d 1263, and when a district court awards counsel fees to a prevailing plaintiff, it is awarding them against a violator of federal law. Pp. 418-419.
(b) No statutory provision would have been necessary had an award of attorney's fees to a prevailing defendant been based only on the plaintiff's bad faith in bringing the action, for even under the American common-law rule (which ordinarily does not allow attorney's fees to the prevailing party) such fees can be awarded against a party who has proceeded in bad faith. P. 419.
2. The District Court properly applied the foregoing standards and did not abuse its discretion in concluding that an award to petitioner of attorney's fees was not justified. Pp. 423-424.
550 F.2d 949, affirmed.
Thomas S. Martin, Washington, D. C., for respondent.
William W. Sturges, Charlotte, N. C., for petitioner.
Mr. Justice STEWART delivered the opinion of the Court.
1
Section 706(k) of Title VII of the Civil Rights Act of 1964 provides:
2
"In any action or proceeding under this title the court, in its discretion, may allow the prevailing party . . . a reasonable attorney's fee . . . ."1
3
The question in this case is under what circumstances an attorney's fee should be allowed when the defendant is the prevailing party in a Title VII action—a question about which the federal courts have expressed divergent views.
4
* Two years after Rosa Helm had filed a Title VII charge of racial discrimination against the petitioner Christiansburg Garment Co. (company), the Equal Employment Opportunity Commission notified her that its conciliation efforts had failed and that she had the right to sue the company in federal court. She did not do so. Almost two years later, in 1972, Congress enacted amendments to Title VII.2 Section 14 of these amendments authorized the Commission to sue in its own name to prosecute "charges pending with the Commission" on the effective date of the amendments. Proceeding under this section, the Commission sued the company, alleging that it had engaged in unlawful employment practices in violation of the amended Act. The company moved for summary judgment on the ground, inter alia, that the Rosa Helm charge had not been "pending" before the Commission when the 1972 amendments took effect. The District Court agreed and granted summary judgment in favor of the company. 376 F.Supp. 1067 (W.D.Va.).3
5
The company then petitioned for the allowance of attorney's fees against the Commission pursuant to § 706(k) of Title VII. Finding that "the Commission's action in bringing the suit cannot be characterized as unreasonable or meritless," the District Court concluded that "an award of attorney's fees to petitioner is not justified in this case."4 A divided Court of Appeals affirmed, 550 F.2d 949 (CA4), and we granted certiorari to consider an important question of federal law, 432 U.S. 905, 97 S.Ct. 2948, 53 L.Ed.2d 1077.
II
6
It is the general rule in the United States that in the absence of legislation providing otherwise, litigants must pay their own attorney's fees. Alyeska Pipeline Co. v. Wilderness Society, 421 U.S. 240, 95 S.Ct. 1612, 44 L.Ed.2d 141. Congress has provided only limited exceptions to this rule "under selected statutes granting or protecting various federal rights." Id., at 260, 95 S.Ct. at 1623. Some of these statutes make fee awards mandatory for prevailing plaintiffs;5 others make awards permissive but limit them to certain parties, usually prevailing plaintiffs.6 But many of the statutes are more flexible, authorizing the award of attorney's fees to either plaintiffs or defendants, and entrusting the effectuation of the statutory policy to the discretion of the district courts.7 Section 706(k) of Title VII of the Civil Rights Act of 1964 falls into this last category, providing as it does that a district court may in its discretion allow an attorney's fee to the prevailing party.
7
In Newman v. Piggie Park Enterprises, 390 U.S. 400, 88 S.Ct. 964, 19 L.Ed.2d 1263, the Court considered a substantially identical statute authorizing the award of attorney's fees under Title II of the Civil Rights Act of 1964.8 In that case the plaintiffs had prevailed, and the Court of Appeals had held that they should be awarded their attorney's fees "only to the extent that the respondents' defenses had been advanced 'for purposes of delay and not in good faith.' " Id., at 401, 88 S.Ct. at 966. We ruled that this "subjective standard" did not properly effectuate the purposes of the counsel-fee provision of Title II. Relying primarily on the intent of Congress to cast a Title II plaintiff in the role of "a 'private attorney general,' vindicating a policy that Congress considered of the highest priority," we held that a prevailing plaintiff under Title II "should ordinarily recover an attorney's fee unless special circumstances would render such an award unjust." Id., at 402, 88 S.Ct. at 966. We noted in passing that if the objective of Congress had been to permit the award of attorney's fees only against defendants who had acted in bad faith, "no new statutory provision would have been necessary," since even the American common-law rule allows the award of attorney's fees in those exce tional circumstances. Id., at 402, 88 S.Ct. at 966 n. 4.9
8
In Albemarle Paper Co. v. Moody, 422 U.S. 405, 95 S.Ct. 2362, 45 L.Ed.2d 280, the Court made clear that the Piggie Park standard of awarding attorney's fees to a successful plaintiff is equally applicable in an action under Title VII of the Civil Rights Act. 422 U.S., at 415, 95 S.Ct., at 2370. See also Northcross v. Memphis Board of Education, 412 U.S. 427, 428, 93 S.Ct. 2201, 37 L.Ed.2d 48. It can thus be taken as established, as the parties in this case both acknowledge, that under § 706(k) of Title VII a prevailing plaintiff ordinarily is to be awarded attorney's fees in all but special circumstances.10
III
9
The question in the case before us is what standard should inform a district court's discretion in deciding whether to award attorney's fees to a successful defendant in a Title VII action. Not surprisingly, the parties in addressing the question in their briefs and oral arguments have taken almost diametrically opposite positions.11
10
The company contends that the Piggie Park criterion for a successful plaintiff should apply equally as a guide to the award of attorney's fees to a successful defendant. Its submission, in short, is that every prevailing defendant in a Title VII action should receive an allowance of attorney's fees "unless special circumstances would render such an award unjust."12 The respondent Commission, by contrast, argues that the prevailing defendant should receive an award of attorney's fees only when it is found that the plaintiff's action was brought in bad faith. We have concluded that neither of these positions is correct.
11
* Relying on what it terms "the plain meaning of the statute," the company argues that the language of § 706(k) admits of only one interpretation: "A prevailing defendant is entitled to an award of attorney's fees on the same basis as a prevailing plaintiff." But the permissive and discretionary language of the statute does not even invite, let alone require, such a mechanical construction. The terms of § 706(k) provide no indication whatever of the circumstances under which either a plaintiff or a defendant should be entitled to attorney's fees. And a moment's reflection reveals that there are at least two strong equitable considerations counseling an attorney's fee award to a prevailing Title VII plaintiff that are wholly absent in the case of a prevailing Title VII defendant.
12
First, as emphasized so forcefully in Piggie Park, the plaintiff is the chosen instrument of Congress to vindicate "a policy that Congress considered of the highest priority." 390 U.S., at 402, 88 S.Ct. at 966. Second, when a district court awards counsel fees to a prevailing plaintiff, it is awarding them against a violator of federal law. As the Court of Appeals clearly perceived, "these policy considerations which support the award of fees to a prevailing plaintiff are not present in the case of a prevailing defendant." 550 F.2d at 951. A successful defendant seeking counsel fees under § 706(k) must rely on quite different equitable considerations.
13
But if the company's position is untenable, the Commission's argument also misses the mark. It seems clear, in short, that in enacting § 706(k) Congress did not intend to permit the award of attorney's fees to a prevailing defendant only in a situation where the plaintiff was motivated by bad faith in bringing the action. As pointed out in Piggie Park, if that had been the intent of Congress, no statutory provision would have been necessary, for it has long been established that even under the American common-law rule attorney's fees may be awarded against a party who has proceeded in bad faith.13
14
Furthermore, while it was certainly the policy of Congress that Title VII plaintiffs should vindicate "a policy that Congress considered of the highest priority," Piggie Park, 390 U.S., at 402, 88 S.Ct., at 966, it is equally certain that Congress entrusted the ultimate effectuation of that policy to the adversary judicial process, Occidental Life Ins. Co. v. EEOC, 432 U.S. 355, 97 S.Ct. 2447, 53 L.Ed.2d 402. A fair adversary process presupposes both a vigorous prosecution and a vigorous defense. It cannot be lightly assumed that in enacting § 706(k), Congress intended to distort that process by giving the private plaintiff substantial incentives to sue, while foreclosing to the defendant the possibility of recovering his expenses in resisting even a groundless action unless he can show that it was brought in bad faith.
B
15
The sparse legislative history of § 706(k) reveals little more than the barest outlines of a proper accommodation of the competing considerations we have discussed. The only specific reference to § 706(k) in the legislative debates indicates that the fee provision was included to "make it easier for a plaintiff of limited means to bring a meritorious suit."14 During the Senate floor discussions of the almost identical attorney's fee provision of Title II, however, several Senators explained that its allowance of awards to defendants would serve "to deter the bringing of lawsuits without foundation,"15 "to discourage frivolous suits,"16 and "to diminish the likelihood of unjustified suits being brought."17 If anything can be gleaned from these fragments of legislative history, it is that while Congress wanted to clear the way for suits to be brought under the Act, it also wanted to protect defendants from burdensome litigation having no legal or factual basis. The Court of Appeals for the District of Columbia Circuit seems to have drawn the maximum significance from the Senate debates when it concluded:
16
"[From these debates] two purposes for § 706(k) emerge. First, Congress desired to 'make it easier for a plaintiff of limited means to bring a meritorious suit' . . . . But second, and equally important, Congress intended to 'deter the bringing of lawsuits without foundation' by providing that the 'prevailing party'—be it plaintiff or defendant could obtain legal fees." Grubbs v. Butz, 179 U.S.App.D.C. 18, 20, 548 F.2d 973, 975.
17
The first federal appellate court to consider what criteria should govern the award of attorney's fees to a prevailing Title VII defendant was the Court of Appeals for the Third Circuit in United States Steel Corp. v. United States, 519 F.2d 359. There a District Court had denied a fee award to a defendant that had successfully resisted a Commission demand for documents, the court finding that the Commission's action had not been " 'unfounded, meritless, frivolous or vexatiously brought.' " Id., at 363. The Court of Appeals concluded that the District Court had not abused its discretion in denying the award. Id., at 365. A similar standard was adopted by the Court of Appeals for the Second Circuit in Carrion v. Yeshiva University, 535 F.2d 722. In upholding an attorney's fee award to a successful defendant, that court stated that such awards should be permitted "not routinely, not simply because he succeeds, but only where the action brought is found to be unreasonable, frivolous, meritless or vexatious." Id., at 727.18
18
To the extent that abstract words can deal with concrete cases, we think that the concept embodied in the language adopted by these two Courts of Appeals is correct. We would qualify their words only by pointing out that the term "meritless" is to be understood as meaning groundless or without foundation, rather than simply that the plaintiff has ultimately lost his case, and that the term "vexatious" in no way implies that the plaintiff's subjective bad faith is a necessary prerequisite to a fee award against him. In sum, a district court may in its discretion award attorney's fees to a prevailing defendant in a Title VII case upon a finding that the plaintiff's action was frivolous, unreasonable, or without foundation, even though not brought in subjective bad faith.
19
In applying these criteria, it is important that a district court resist the understandable temptation to engage in post hoc reasoning by concluding that, because a plaintiff did not ultimately prevail, his action must have been unreasonable or without foundation. This kind of hindsight logic could discourage all but the most airtight claims, for seldom can a prospective plaintiff be sure of ultimate success. No matter how honest one's belief that he has been the victim of discrimination, no matter how meritorious one's claim may appear at the outset, the course of litigation is rarely predictable. Decisive facts may not emerge until discovery or trial. The law may change or clarify in the midst of litigation. Even when the law or the facts appear questionable or unfavorable at the outset, a party may have an entirely reasonable ground for bringing suit.
20
That § 706(k) allows fee awards only to prevailing private plaintiffs should assure that this statutory provision will not in itself operate as an incentive to the bringing of claims that have little chance of success.19 To take the further step of assessing attorney's fees against plaintiffs simply because they do not finally prevail would substantially add to the risks inhering in most litigation and would undercut the efforts of Congress to promote the vigorous enforcement of the provisions of Title VII. Hence, a plaintiff should not be assessed his opponent's attorney's fees unless a court finds that his claim was frivolous, unreasonable, or groundless, or tha the plaintiff continued to litigate after it clearly became so. And, needless to say, if a plaintiff is found to have brought or continued such a claim in bad faith, there will be an even stronger basis for charging him with the attorney's fees incurred by the defense.20
IV
21
In denying attorney's fees to the company in this case, the District Court focused on the standards we have discussed. The court found that "the Commission's action in bringing the suit could not be characterized as unreasonable or meritless" because "the basis upon which petitioner prevailed was an issue of first impression requiring judicial resolution" and because the "Commission's statutory interpretation of § 14 of the 1972 amendments was not frivolous." The court thus exercised its discretion squarely within the permissible bounds of § 706(k). Accordingly, the judgment of the Court of Appeals upholding the decision of the District Court is affirmed.
22
It is so ordered.
23
Mr. Justice BLACKMUN took no part in the consideration or decision of this case.
1
Section 706(k) provides in full: "In any action or proceeding under this title the court, in its discretion, may allow the prevailing party, other than the Commission or the United States, a reasonable attorney's fee as part of the costs, and the Commission and the United States shall be liable for costs the same as a private person." 78 Stat. 261, 42 U.S.C. § 2000e-5(k).
2
Equal Employment Opportunity Act of 1972, Pub.L. 92-261, 86 Stat. 103.
3
The Commission argued that charges as to which no private suit had been brought as of the effective date of the amendments remained "pending" before the Commission so long as the complaint had not been dismissed and the dispute had not been resolved through conciliation. The Commission supported its construction of § 14 with references to the legislative history of the 1972 amendments.
The District Court concluded that when Rosa Helm was notified in 1970 that conciliation had failed and that she had a right to sue the company, the Commission had no further action legally open to it, and its authority over the case terminated on that date. Section 14's reference to "pending" cases was held "to be limited to charges still in the process of negotiation and conciliation" on the effective date of the 1972 amendments. 376 F.Supp., at 1074.
The District Court rejected on the merits two additional grounds advanced by the company in support of its motion for summary judgment.
4
The opinion of the District Court dealing with the motion for attorney's fees is reported, at 12 FEP Cases 533.
5
See, e. g., Clayton Act, 38 Stat. 731, 15 U.S.C. § 15; Fair Labor Standards Act of 1938, 52 Stat. 1069, as amended, 29 U.S.C. § 216(b); Packers and Stockyards Act, 42 Stat. 165, 7 U.S.C. § 210(f); Truth in Lending Act, 82 Stat. 157, 15 U.S.C. § 1640(a); and Merchant Marine Act, 1936, 49 Stat. 2015, 46 U.S.C. § 1227.
6
See, e. g., Privacy Act of 1974, 88 Stat. 1897, 5 U.S.C. § 552a(g)(2)(B) (1976 ed.); Fair Housing Act of 1968, 82 Stat. 88, 42 U.S.C. § 3612(c).
7
See, e. g., Trust Indenture Act of 1939, 53 Stat. 1171, 15 U.S.C. § 77ooo(e); Securities Exchange Act of 1934, 48 Stat. 889, 897, 15 U.S.C. §§ 78i(e), 78r(a); Federal Water Pollution Control Act, 86 Stat. 889, 33 U.S.C. § 1365(d) (1970 ed., Supp. V); Clean Air Act, 84 Stat. 1706, 42 U.S.C. § 1857h-2(d); Noise Control Act of 1972, 86 Stat. 1244, 42 U.S.C. § 4911(d) (1970 ed., Supp. V).
8
"In any action commenced pursuant to this subchapter, the court, in its discretion, may allow the prevailing party, other than the United States, a reasonable attorney's fee as part of the costs, and the United States shall be liable for costs the same as a private person." 42 U.S.C. § 2000a-3(b).
9
The propriety under the American common-law rule of awarding attorney's fees against a losing party who has acted in bad faith was expressly reaffirmed in Alyeska Pipeline Co. v. Wilderness Society, 421 U.S. 240, 258-259, 95 S.Ct. 1612, 1622, 44 L.Ed.2d 141.
10
Chastang v. Flynn & Emrich Co., 541 F.2d 1040, 1045 (CA4) (finding "special circumstances" justifying no award to prevailing plaintiff); Carrion v. Yeshiva Univ., 535 F.2d 722, 727 (CA2); Johnson v. Georgia Highway Express, Inc., 488 F.2d 714, 716 (CA5); Parham v. Southwestern Bell Telephone Co., 433 F.2d 421, 429-430 (CA8).
11
Briefs by amici have also been filed in support of each party.
12
This was the view taken by Judge Widener, dissenting in the Court of Appeals, 550 F.2d 949, 952 (CA4). At least two other federal courts have expressed the same view. EEOC v. Bailey Co., Inc., 563 F.2d 439, 456 (CA6); United States v. Allegheny-Ludlum Industries, Inc., 558 F.2d 742, 744 (CA5).
13
See n.9, supra. Had Congress provided for attorney's fee awards only to successful plaintiffs, an argument could have been made that the congressional action had pre-empted the common-law rule, and that, therefore, a successful defendant could not recover attorney's fees even against a plaintiff who had proceeded in bad faith. Cf. Byram Concretanks, Inc. v. Warren Concrete Products Company of New Jersey, 374 F.2d 649, 651 (CA3). But there is no indication whatever that the purpose of Congress in enacting § 706(k) in the form that it did was simply to foreclose such an argument.
14
Remarks of Senator Humphrey, 110 Cong.Rec. 12724 (1964).
15
Remarks of Senator Lausche, id., at 13668.
16
Remarks of Senator Pastore, id., at 14214.
17
Remarks of Senator Humphrey, id., at 6534.
18
At least three other Circuits are in general agreement. See Bolton v. Murray Envelope Corp., 553 F.2d 881, 884 n.2 (CA5); Grubbs v. Butz, 179 U.S.App.D.C. 18, 20-21, 548 F.2d 973, 975-976; Wright v. Stone Container Corp., 524 F.2d 1058, 1063-1064 (CA8).
19
See remarks of Senator Miller, 110 Cong.Rec. 14214 (1964), with reference to the parallel attorney's fee provision in Title II.
20
Initially, the Commission argued that the "costs" assessable against the Government under § 706(k) did not include attorney's fees. See, e. g., United States Steel Corp. v. United States, 519 F.2d 359, 362 (CA3); Van Hoomissen v. Xerox Corp., 503 F.2d 1131, 1132-1133 (CA9). But the Courts of Appeals rejected this position and, during the
course of appealing this case, the Commission abandoned its contention that it was legally immune to adverse fee awards under § 706(k). 550 F.2d, at 951.
It has been urged that fee awards against the Commission should rest on a standard different from that governing fee awards against private plaintiffs. One amicus stresses that the Commission, unlike private litigants, needs no inducement to enforce Title VII since it is required by statute to do so. But this distinction between the Commission and private plaintiffs merely explains why Congress drafted § 706(k) to preclude the recovery of attorney's fees by the Commission; it does not support a difference in treatment among private and Government plaintiffs when a prevailing defendant seeks to recover his attorney's fees. Several courts and commentators have also deemed significant the Government's greater ability to pay adverse fee awards compared to a private litigant. See, e. g., United States Steel Corp. v. United States, supra, 519 F.2d, at 364 n.24; Heinsz, Attorney's Fees for Prevailing Title VII Defendants: Toward a Workable Standard, 8 U.Toledo L.Rev. 259, 290 (1977); Comment, Title VII, Civil Rights Act of 1964: Standards for Award of Attorney's Fees to Prevailing Defendants, 1976 Wis.L.Rev. 207, 228. We are informed, however, that such awards must be paid from the Commission's litigation budget, so that every attorney's fee assessment against the Commission will inevitably divert resources from the agency's enforcement of Title VII. See 46 Comp.Gen. 98, 100 (1966); 38 Comp.Gen. 343, 344-345 (1958). The other side of this coin is the fact that many defendants in Title VII claims are small- and moderate-size employers for whom the expense of defending even a frivolous claim may become a strong disincentive to the exercise of their legal rights. In short, there are equitable considerations on both sides of this question. Yet § 706(k) explicitly provides that "the Commission and the United States shall be liable for costs the same as a private person." Hence, although a district court may consider distinctions between the Commission and private plaintiffs in determining the reasonableness of the Commission's litigation efforts, we find no grounds for applying a different general standard whenever the Commission is the losing plaintiff.
| 56
|
434 U.S. 425
98 S.Ct. 702
54 L.Ed.2d 659
VENDO COMPANYv.LEKTRO-VEND CORPORATION et al.
No. 76-156.
Jan. 23, 1978.
PER CURIAM.
1
Petitioner has filed a motion "for clarification of mandate" in this case, and respondents have filed a memorandum in answer to petitioner's motion.* We decided this case last Term on June 29, 1977, 433 U.S. 623, 97 S.Ct. 2881, 53 L.Ed.2d 1009; Mr. Justice REHNQUIST delivered a plurality opinion for himself, Mr. Justice STEWART, and Mr. Justice POWELL; and Mr. Justice BLACKMUN delivered an opinion concurring in the result for himself and The Chief Justice. While these opinions did not agree in their reasoning, each of them concluded that the judgment of the Court of Appeals for the Seventh Circuit, 545 F.2d 1050, which had in turn affirmed the issuance of an injunction by the District Court for the Northern District of Illinois, 403 F.Supp. 527, should be reversed. Mr. Justice STEVENS, delivered a dissenting opinion for himself, Mr. Justice BRENNAN, Mr. Justice WHITE, and Mr. Justice MARSHALL. The dissenting Members of the Court would have affirmed the Court of Appeals for the Seventh Circuit. The judgment of the Court, using language customary in such documents, ordered "that this cause be, and the same is hereby, remanded to the United States Court of Appeals for the Seventh Circuit for further proceedings in conformity with the opinion of this Court." On August 19, 1977, the Court of Appeals in turn entered an order remanding the case to the District Court "for further proceedings, in conformity with the opinion of the United States Supreme Court rendered on June 29, 1977."
2
A timely petition for rehearing was filed in this Court, contending, inter alia :
3
"The Concurring Opinion . . . was explicitly based on the false assumption that 'only one state-court proceeding was involved in this case.' The Concurring Opinion states that 'the District Court failed properly to apply the California Motor Transport rule' because
4
" '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' [433 U.S., at 645, 97 S.Ct., at 2894].
5
"That interpretation of the District Court's findings is erroneous."
6
This petition for rehearing was denied on October 3, 1977. 434 U.S. 881, 98 S.Ct. 242, 54 L.Ed.2d 164.
7
Meanwhile, respondents took the position in the District Court that the injunction which it had issued continued to be binding in spite of this Court's decision, and petitioner therefore filed a motion in the District Court asking that the preliminary injunction previously issued be formally dissolved. The District Court has thus far declined to dissolve the injunction, and petitioner asserts that it has expressed the view that the preliminary injunction is still in effect until dissolved by that court, and any action by petitioner to collect its state-court judgments would risk contempt.
8
Respondents' memorandum in answer to petitioner's motion for clarification of judgment states, correctly we believe, that "[i]n effect, Vendo's Motion for Clarification is a petition for this Court to mandamus the District Court to grant Vendo's Motion to Dissolve." Respondents contend that the District Court was not required by the opinions and judgment of this Court to dissolve the preliminary injunction which it had earlier issued, but that the District Court should be permitted to decide Vendo's motion to dissolve before Vendo can appeal.
9
Respondents' memorandum in this Court sets forth their contentions made to the District Cou t after remand as to why the injunction should not be dissolved. These contentions are: (1) further findings of fact which are warranted by the record should be made in support of the injunction; (2) a finding of grave abuse of the state courts by Vendo, in seeking to further the precise conduct prescribed by the antitrust laws, is fully warranted by the record and should be made in support of the injunction; (3) the District Court should permit the record to be supplemented by further evidence newly discovered since the prior hearing; (4) the District Court should grant respondents the protection offered by Vendo's so-called consent decrees and by the representations to this Court made by Vendo in opposing a stay.
10
We believe that the parties are correct in treating this as an action for mandamus, which is available to a party who has prevailed in this Court if the lower court "does not proceed to execute the mandate, or disobeys and mistakes its meaning . . . ." United States v. Fossatt, 21 How. 445, 446, 16 L.Ed. 185 (1859). Put another way, "[w]hen a case has been once decided by this court on appeal, and remanded to the Circuit Court, whatever was before this court, and disposed of by its decree, is considered as finally settled. The Circuit Court is bound by the decree as the law of the case; and must carry it into execution, according to the mandate. . . . If the Circuit Court mistakes or misconstrues the decree of this court, and does not give full effect to the mandate, its action may be controlled, either upon a new appeal (if involving a sufficient amount) or by a writ of mandamus to execute the mandate of this court." In re Sanford Fork & Tool Co., 160 U.S. 247, 255, 16 S.Ct. 291, 293, 40 L.Ed. 414 (1895).
11
While the parties both treat petitioner's motion for clarification as a motion for leave to file a petition for a writ of mandamus, and are, we believe, correct in so doing, this Court's Rule 31 requires that the motion and petition "shall be served on the judge or judges to whom the writ is sought to be directed . . . ." There is no indication in the papers filed by either petitioner or respondents that any such service has been made. The granting of petitioner's motion for clarification of judgment would serve no useful purpose, since the judgment is typically a routine order directing that the decision of this Court be carried into effect. If petitioner is of the view that the District Court to which the case was remanded is failing to carry out the judgment of this Court, its remedy is by motion for leave to file a writ of mandamus pursuant to Rule 31, including service of the motion or petition upon the judge or judges to whom the writ would be directed. The petition for clarification of judgment is therefore denied, without prejudice to the filing of a motion for leave to file a petition for mandamus.
12
It is so ordered.
*
Petitioner entitles its present motion a "Motion of Petitioner for Clarification of Mandate." Unless the Court specifically directs to the contrary, however, formal mandates do not issue in cases coming from federal courts. See this Court's Rule 59. No formal mandate was issued in this case. Accordingly, we read petitioner's motion as a motion for clarification of judgment.
| 89
|
434 U.S. 429
98 S.Ct. 787
54 L.Ed.2d 664
RAYMOND MOTOR TRANSPORTATION, INC., et al., Appellants,v.Zel S. RICE et al.
No. 76-558.
Argued Nov. 8-9, 1977.
Decided Feb. 21, 1978.
Syllabus
Wisconsin statutes, as a general rule, do not allow trucks longer than 55 feet or pulling more than one other vehicle to be operated on highways within that State without a permit. Implementing regulations set forth the conditions under which "trailer train" and other classes of permits will be issued, and contain a great number of exceptions to the general rule. Appellant motor carriers were denied permits to operate 65-foot double-trailer units on certain interstate highways in Wisconsin on the ground that their proposed operations were not within the narrow scope of the regulations specifying when "trailer train" permits will be issued. Appellants then filed suit in Federal District Court seeking declaratory and injunctive relief on the ground that the regulations barring their operation of 65-foot doubles burden and discriminated against interstate commerce in violation of the Commerce Clause. At the rial appellants presented extensive, uncontradicted evidence that the 65-foot doubles are as safe as, if not safer than, 55-foot singles when operated on limited-access, four-lane divided highways, and also presented uncontradicted evidence that their operations are disrupted, their costs raised, and their service slowed by the challenged regulations because they are forced to haul doubles across the State separately or around the State or to incur delays caused by using singles instead of doubles to pick up and deliver goods, and are prevented from accepting interline transfers of 65-foot doubles. In addition appellants' evidence showed that Wisconsin routinely allows a great number and variety of vehicles over 55 feet long to operate on state highways. A three-judge court ruled against appellants. Held : On the record, the challenged regulations violate the Commerce Clause because they place a substantial burden on interstate commerce and make no more than the most speculative contribution to highway safety. The great number of exceptions to the general 55-foot rule, and especially those that discriminate in favor of local industry, weaken the presumption of validity in favor of the general limit, because they undermine the assumption that the State's own political processes will act as a check on local regulations that unduly burden interstate commerce. Pp. 439-448.
D.C., 417 F.Supp. 1352, reversed and remanded.
John H. Lederer, Madison, Wis., for appellants.
Albert O. Harriman, Madison, Wis., for appellees.
Mr. Justice POWELL delivered the opinion of the Court.
1
We consider on this appeal whether administrative regulations of the State of Wisconsin governing the length and configuration of trucks that may be operated within the State violate the Commerce Clause because they unconstitutionally burden or discriminate against interstate commerce. The three-judge District Court held that the regulations are not unconstitutional on either ground. Because we conclude that they unconstitutionally burden interstate commerce, we reverse.
2
* Appellant Raymond Motor Transportation, Inc. (Raymond), a Minnesota corporation with its principal place of business in Minneapolis, is a common carrier of general commodities by motor vehicle. Operating pursuant to a certificate of public convenience and necessity granted by the Interstate Commerce Commission, see 49 U.S.C. §§ 306-308, Raymond provides service in eastern North Dakota, Minnesota, northern Illinois, and northwestern Indiana. Its primary interstate route is between Chicago and Minneapolis. It does not serve any points in Wisconsin.
3
Appellant Consolidated Freightways Corporation of Delaware (Consolidated), a Delaware corporation with its principal place of business in Menlo Park, Cal., also is a common carrier of general commodities by motor vehicle. Consolidated operates nationwide, providing service under a certificate of public convenience and necessity in 42 States and Canada. Among other routes, consolidated carries commodities between Chicago, Detroit, and points east, and Minneapolis and points west to Seattle. Unlike Raymond, Consolidated does carry commodities between Wisconsin and other States and it maintains terminals in Milwaukee and Madison where truckloads of goods are dispatched and received.
4
Both Raymond and Consolidated use two different kinds of trucks. One consists of a three-axle power unit (tractor) which pulls a single two-axle trailer that is 40 feet long. The overall length of such a single-trailer unit (single) is 55 feet. This unit has been used on the Nation's highways for many years and is an industry standard. The other type truck consists of a two-axle tractor which pulls a single-axle trailer to which a single-axle dolly and a second single-axle trailer are attached. Each trailer is 27 feet long, and the overall length of such a double-trailer unit (double) is 65 feet.1
5
The double, which has come into increasing use in recent years, is thought to have certain advantages over the single for general commodities shipping.2 Because of these advantages, Raymond would prefer to use doubles on its route between Chicago and Minneapolis. Consolidated would prefer to use doubles on its routes between Chicago, Detroit, and points east, and Minneapolis and points west, as well as on its routes commencing and ending in Milwaukee and Madison. The most direct route for all of this traffic is over Interstate Highways 90 and 94, both of which cross Wisconsin between Illinois and Minnesota. State law allows 65-foot doubles to be operated on interstate highways and access roads in Michigan, Illinois, Minnesota, and all of the States west from Minnesota to Washington through which Interstate Highways 90 and 94 run.
6
Wisconsin law, however, generally does not allow trucks longer than 55 feet to be operated on highways within that State. The key statutory provision is Wis.Stat. § 348.07(1) (1975), which sets a limit of 55 feet on the overall length of a vehicle pulling one trailer.3 Any person operating a single-trailer unit of greater length must obtain a permit issued by the State Highway Commission. In addition, § 348.08(1) provides that no vehicle pulling more than one other vehicle shall be operated on a highway without a permit.4
7
The Commission is authorized to issue various classes of annual permits for the operation of vehicles that do not conform to the above requirements. In particular, it may issue "trailer train" permits for the operation of combinations of more than two vehicles "consist ng of truck tractors, trailers, semitrailers or wagons which do not exceed a total length of 100 feet," § 348.27(6).5 The Commission may also "impose such reasonable conditions" and "adopt such reasonable rules" of operation with respect to vehicles operated under permit "as it deems necessary for the safety of travel and protection of the highways," § 348.25(3), including specification of the routes to be used by permittees.
8
The Commission has issued administrative regulations setting forth the conditions under which "trailer train" and other classes of permits will be issued. Although the Commission is empowered by § 348.27(6) to issue "trailer train" permits to operate double-trailer trucks up to 100 feet long, its regulations restrict such permits to "the operation of vehicles used for the transporting of municipal refuse or waste, or for the interstate or intra-state operation without load of vehicles in transit from manufacturer or dealer to purchaser or dealer, or for the purpose of repair." Wis.Admin.Code § Hy 30.14(3)(a) (June 1975). "Trailer train" permits also are issued "for the operation of a combination of three vehicles used for the transporting of milk from the point of production to the point of first processing," § Hy 30.18(3)(a) (June 1976).
II
9
The overture to this lawsuit began when Raymond and Consolidated each applied to the appropriate Wisconsin officials under § 348.27(6) for annual permits to operate 65-foot doubles on Interstate Highways 90 and 94 between Illinois and Minnesota and, in Consolidated's case, on short stretches of four-lane divided highways between the interstate highways and freight terminals in Milwaukee and Madison.6 The permits were denied because appellants' proposed operations were not within the narrow scope of the administrative regulations that specify when "trailer train" permits will be issued. Appellants then fi ed suit in Federal District Court seeking declaratory and injunctive relief on the ground that the regulations barring the proposed operation of 65-foot doubles burden and discriminate against interstate commerce in violation of the Commerce Clause, Art. I, § 8, cl. 3.7 The complaint alleged that the State's refusal to issue the requested permits disrupts and delays appellants' transportation of commodities in interstate commerce; that 65-foot doubles are as safe as, if not safer than, the 55-foot singles that are allowed to operate on Wisconsin highways without permits; and that the maze of statutory and administrative exceptions to the general prohibition against operating vehicles longer than 55 feet results in " 'over-length' permits [being] routinely granted to classes of vehicles indistinguishable from those of the Plaintiffs in terms of size, safety, and divisibility of loads . . . ." App. 18.
10
A three-judge District Court was convened pursuant to 28 U.S.C. § 2281.8 After a pretrial conference, the court directed the State to file an amended answer setting forth every justification for its refusal to issue the permits sought, "such as safety, for example." App. 25. The State's amended answer advanced highway safety as its sole justification. Id., at 27-29. By agreement of the parties, the case was tried on affidavits, depositions, and exhibits.
11
Appellants presented a great deal of evidence supporting their allegation that 65-foot doubles are as safe as, if not safer than, 55-foot singles when operated on limited-access, four-lane divided highways. For example, the Deputy Director of the Bureau of Motor Carrier Safety, Federal Highway Administration, United States Department of Transportation, testified on deposition that the Bureau's five-year study of the accident experience of selected motor carriers that use both types of trucks showed that doubles are safer than singles in terms of the number of accidents, injuries, and fatalities per 100,000 miles, and in terms of the amount of property damage and number of injuries and fatalities per accident. The deponent's own expert opinion was that doubles are safer because of the articulation between the first and second trailers, which allows greater maneuverability and prevents the back wheels of the second trailer from deviating from the path of the front wheels of the tractor (offtracking) as much as the back wheels of a 55-foot single; because loads typically are distributed more evenly in doubles than in singles; and because doubles typically have better braking capability than singles.
12
Other experts testified that 65-foot doubles brake as well as 55-foot singles, maneuver and track better, are less prone to jackknife, and produce less splash and spray to obscure the vision of drivers in following and passing vehicles. These experts agreed that the difference in the amount of time needed to pass a 55-foot single and a 65-foot double has no appreciable effe t on motorist safety on limited-access, four-lane divided highways. Appellants also produced depositions and affidavits of state highway safety officials from 12 of the States where 65-foot doubles are allowed on some or all highways; all shared the opinion that 65-foot doubles are as safe as 55-foot singles.9
13
The State, for reasons unexplained, made no effort to contradict this evidence of comparative safety with evidence of its own.10 The Chairman of the State Highway Commission, while acknowledging the Commission's statutory authority to issue the permits sought by appellants, testified that the regulations preventing their issuance are not based on an administrative assessment of the safety of 65-foot doubles, and he himself was "not prepared to make a statement relative to the safety of these vehicles." App. 250. The reason for the Commission's adoption of these regulations, according to the Chairman, was its belief that the people of the State did not want more vehicles over 55 feet long on the State's highways.11 The State produced no evidence nor has it made any suggestion in this Court, that 65-foot doubles are less safe than 55-foot singles because of their extra trailer, as distinguished from their extra length.12
14
Appellants also produced uncontradicted evidence showing that their operations are disrupted, their costs are raised, and their service is slowed by the challenged regulations. For example, Consolidated ordinarily finds it faster and less expensive to use 65-foot doubles to carry interstate freight originating from or destined for Milwaukee and Madison. To comply with Wisconsin law, however, an interstate double bound for Wisconsin must stop before entering the State and detach one of its two trailers. Consolidated then pulls each trailer separately to the freight terminal in Milwaukee or Madison. Likewise, each trailer of a double outbound from one of those cities must be pulled across the Wisconsin state line separately, at which point they are united into a double-trailer combination. Consolidated maintains a crew of drivers in Wisconsin whose sole responsibility is to shuttle second trailers to and from the state line.
15
On routes through Wisconsin between Chicago and Minneapolis, both Consolidated and Raymond are compelled to use 55-foot singles instead of 65-foot doubles because each trailer of a double would have to be pulled by a separate tractor on the portion of the route that is in Wisconsin. On its long east-west routes from Detroit and Chicago to Seattle, Consolidated must divert doubles south of Wisc nsin through Missouri and Nebraska in order to avoid Wisconsin's ban.13 These routes would involve a considerably shorter distance if Consolidated's trucks could go through Wisconsin.14
16
Finally, appellants' evidence demonstrated that Wisconsin routinely allows a great number and variety of vehicles over 55 feet long to be operated on the State's highways. App. 178-181.
17
The three-judge court ruled against appellants. 417 F.Supp. 1352 (W.D.Wis.1976) (per curiam ). The court found that the Wisconsin regulatory scheme does not discriminate against interstate commerce. Id. at 1356-1358. The court also considered "whether the burden imposed upon interstate commerce outweighs the benefits to the local popul[ace]," id., at 1358, and concluded that it did not. It thought that appellants had not shown that the State's refusal to issue permits for appellants' 65-foot doubles had no relation to highway safety, pointing to the fact that, other things being equal, it takes longer for a motorist to pass a 65-foot truck than a 55-foot truck. Id., at 1359. The court considered the expense imposed on appellants to be "of no material consequence." Id., at 1361. We noted probable jurisdiction. 430 U.S. 914, 97 S.Ct. 1325, 51 L.Ed.2d 592 (1977).
III
18
Appellants challenge both branches of the District Court's holding. First, they contend that the State's refusal to issue the requested "trailer train" permits under § 348.27(6) burdens interstate commerce in violation of the Commerce Clause because it substantially interferes with the movement of goods in interstate commerce and makes no contribution to highway safety. Second, they argue that § 348.27(4), authorizing issuance of "interplant" permits, see n. 5, supra, discriminates against interstate commerce in violation of the Commerce Clause because it allows permits to be issued to carry the products of Wisconsin industries, but not of other States' industries, over Wisconsin highways in trucks longer than 55 feet. We find it necessary to address the second contention only as it bears on the first.
19
By its terms, the Commerce Clause grants Congress the power "[t]o regulate Commerce . . . among the several States . . . ." Long ago it was settled that even in the absence of a congressional exercise of this power, the Commerce Clause prevents the States from erecting barriers to the free flow of interstate commerce. Cooley v. Board of Wardens, 12 How. 299, 13 L.Ed. 996 (1852); see Great A&P Tea Co. v. Cottrell, 424 U.S. 366, 370-371, 96 S.Ct. 923, 927, 47 L.Ed.2d 55 (1976). At the same time, however, it never has been doubted that much state legislation, designed to serve legitimate state interests and applied without discrimination against interstate commerce, does not violate the Commerce Clause even though it affects commerce. H. P. Hood & Sons, Inc. v. Du Mond, 336 U.S. 525, 531-532, 69 S.Ct. 657, 661-662, 93 L.Ed. 865 (1949); see Gibbons v. Ogden, 9 Wheat. 1, 203-206, 6 L.Ed. 33 (1824); id., at 235 (Johnson, J., concurring). "[I]n areas where activities of legitimate local concern overlap with the national interests expressed by the Commerce Clause—where local and national powers are concurrent—the Court in the absence of congressional guidance is called upon to make 'delicate adjustment of the conflicting state and federal claims,' H. P. Hood & Sons, Inc. v. Du Mond, supra, at 553, 69 S.Ct. 657 (Black, J., dissenting), . . . ." Great A&P Tea Co. v. Cottrell, supra, 424 U.S. at 371, 96 S.Ct. at 928; see Hunt v. Washington Apple Advertising Comm'n, 432 U.S. 333, 350, 97 S.Ct. 2434, 2445, 53 L.Ed.2d 383 (1977).
20
In this process of "delicate adjustment," the Court has employed various tests to express the distinction between permissible and impermissible impact upon interstate commerce,15 but experience teaches that no single conceptual approach identifies all of the factors that may bear on a particular case.16 Our recent decisions make clear that the inquiry necessarily involves a sensitive consideration of the weight and nature of the state regulatory concern in light of the extent of the burden imposed on the course of interstate commerce. As the Court stated in Pike v. Bruce Church, Inc., 397 U.S. 137, 142, 90 S.Ct. 844, 847, 25 L.Ed.2d 174 (1970):
21
"Although the criteria for determining the validity of state statutes affecting interstate commerce have been variously stated, the general rule that emerges can be phrased as follows: Where the statute regulates evenhandedly to effectuate a legitimate local public interest, and its effects on interstate commerce are only incidental, it will be upheld unless the burden imposed on such commerce is clearly excessive in relation to the putative local benefits. Huron Cement Co. v. Detroit, 362 U.S. 440, 443, 80 S.Ct. 313, 4 L.Ed.2d 852. If a legitimate local purpose is found, then the question becomes one of degree. And the extent of the burden that will be tolerated will of course depend on the nature of the local interest involved, and on whether it could be promoted as well with a lesser impact on interstate activities."
22
Accord, Great A&P Tea Co. v. Cottrell, supra, 424 U.S. at 371-372, 96 S.Ct. at 927-928; Hughes v. Alexandria Scrap Corp., 426 U.S. 794, 804, 96 S.Ct. 2488, 2495, 49 L.Ed.2d 220 (1976); see also Hunt v. Washington Apple Advertising Comm'n, supra, 423 U.S. at 350, 97 S.Ct., at 2445.
23
In the instant case, appellants do not dispute that a State has a legitimate interest in regulating motor vehicles using its roads in order to promote highway safety. Nor do they contend that federal regulation has pre-empted state regulation of truck length or configuration.17 They argue, however, that the burden imposed upon interstate commerce by the Wisconsin regulations challenged here is, in the language of Pike v. Bruce Church, Inc., "clearly excessive in relation to the putative local benefits." Appellants contend that the regulations were shown by uncontradicted evidence to make no con ribution to highway safety, while imposing a burden on interstate commerce that is substantial in terms of expense and delay. They analogize this case to Bibb v. Navajo Freight Lines, Inc., 359 U.S. 520, 79 S.Ct. 962, 3 L.Ed.2d 1003 (1959), where the Court invalidated an Illinois law, defended on the ground that it promoted highway safety, that required trailers of trucks driven within Illinois to be equipped with contour mudguards.
24
The State replies that the general rule of Pike is not applicable to a State's regulation of motor vehicles in the promotion of safety. It contends that we should be guided, instead, by South Carolina State Highway Dept. v. Barnwell Bros., Inc., 303 U.S. 177, 58 S.Ct. 510, 82 L.Ed. 734 (1938), which upheld over Commerce Clause objections a state law that set stricter limitations on truck width and weight than did surrounding States' laws. The State emphasizes that Barnwell Bros. applied a "rational relation" test rather than a "balancing" test, and argues that its regulations bear a rational relation to highway safety: Longer trucks take longer to pass or be passed than shorter trucks.
25
We acknowledge, as did the Court in Bibb, that there is language in Barnwell Bros. "which, read in isolation from . . . later decisions . . ., would suggest that no showing of burden on interstate commerce is sufficient to invalidate local safety regulations in absence of some element of discrimination against interstate commerce." 359 U.S., at 528-529, 79 S.Ct., at 967. But Bibb rejected such a suggestion by stating the test to be applied to state highway regulation in terms similar in principle to the subsequent formulation in Pike v. Bruce Church, Inc.:
26
"Unless we can conclude on the whole record that 'the total effect of the law as a safety measure in reducing accidents and casualties is so slight or problematical as not to outweigh the national interest in keeping interstate commerce free from interferences which seriously impede it' . . . we must uphold the statute." 359 U.S., at 524, 79 S.Ct. at 965, quoting Southern Pacific Co. v. Arizona ex rel. Sullivan, 325 U.S. 761, 775-776, 65 S.Ct. 1515, 1523, 89 L.Ed. 1915 (1945).
27
Thus, we cannot accept the State's contention that the inquiry under the Commerce Clause is ended without a weighing of the asserted safety purpose against the degree of interference with interstate commerce.
28
Nevertheless, it also is true that the Court has been most reluctant to invalidate under the Commerce Clause " 'state legislation in the field of safety where the propriety of local regulation has long been recognized.' " Pike v. Bruce Church, Inc., supra, 397 U.S. at 143, 90 S.Ct. at 848, quoting Southern Pacific Co. v. Arizona ex rel. Sullivan, supra, 325 U.S. at 796, 65 S.Ct. at 1532 (Douglas, J., dissenting). In no field has this deference to state regulation been greater than that of highway safety regulation. See, e. g., Hendrick v. Maryland, 235 U.S. 610, 35 S.Ct. 140, 59 L.Ed. 385 (1915); Sproles v. Binford, 286 U.S. 374, 52 S.Ct. 581, 76 L.Ed. 1167 (1932); Maurer v. Hamilton, 309 U.S. 598, 60 S.Ct. 726, 84 L.Ed. 969 (1940); Railway Express Agency, Inc. v. New York, 336 U.S. 106, 69 S.Ct. 463, 93 L.Ed. 533 (1949).18 Thus, those who would challenge state regulations said to promote highway safety must overcome a "strong presumption of [their] validity." Bibb, supra, 359 U.S., at 524, 79 S.Ct. at 965.
29
Despite the strength of this presumption we are persuaded by the record in this case that the challenged regulations unconstitutionally burden interstate commerce. As we have shown, appellants produced a massive array of evidence to disprove the State's assertion that the regulations make some contribution to highway safety. The State, for its part, virtually defaulted in its defense of the regulations as a safety measure. Both it and the District Court were content to assume that the regulations contribute to highway safety because appellants' 65-foot doubles take longer to pass or be passed than the 55-foot singles. Yet appellants produced uncontradicted evidence that the difference in passing time does not pose an appreciable threat to motorists traveling on limited access, four-lane divided highways.19 They also showed that the Highway Commission routinely allows many other vehicles 55 feet or longer to use the State's highways. In short, the State's assertion that the challenged regulations contribute to highway safety is rebutted by appellants' evidence and undercut by the maze of exemptions from the general truck-length limit that the State itself allows.20
30
Moreover, appellants demonstrated, again without contradiction, that the regulations impose a substantial burden on the interstate movement of goods. The regulations substantially increase the cost of such movement, a fact which is not, as the District Court thought, entirely irrelevant.21 In addition, the regulations slow the movement of goods in interstate commerce by forcing appellants to haul doubles across the State separately, to haul doubles around the State altogether, or to incur the delays caused by using singles instead of doubles to pick up and deliver goods. See Bibb, 359 U.S., at 527, 79 S.Ct., at 966. Finally, the regulations prevent appellants from accepting interline transfers of 65-foot doubles for movement through Wisconsin from carriers that operate only in the 33 States where the doubles are legal. See id., at 527-528, 79 S.Ct., at 966-967.22 In our view, the burden imposed on interstate c mmerce by Wisconsin's regulations is no less than that imposed by the statute invalidated in Bibb.23
31
One other consideration, although not decisive, lends force to our conclusion that the challenged regulations cannot stand. As we have noted, Wisconsin's regulatory scheme contains a great number of exceptions to the general rule that vehicles over 55 feet long cannot be operated on highways within the State. At least one of these exceptions discriminates on its face in favor of Wisconsin industries and against the industries of other States,24 and there are indications in the record that a number of the other exceptions, although neutral on their face, were enacted at the instance of, and primarily benefit, important Wisconsin industries. Viewed realistically, these exceptions may be the product of compromise between forces within the State that seek to retain the State's general truck-length limit, and industries within the State that complain that the general limit is unduly burdensome. Exemptions of this kind, however, weaken the presumption in favor of the validity of the general limit, because they undermine the assumption that the State's own political processes will act as a check on local regulations that unduly burden interstate commerce. See n.18, supra.
IV
32
On this record, we are persuaded that the challenged regulations violate the Commerce Clause because they place a substantial burden on interstate commerce and they cannot be said to make more than the most speculative contribution to highway safety. Our holding is a narrow one, for we do not decide whether laws of other States restricting the operation of trucks over 55 feet long, or of double-trailer trucks, would be upheld if the evidence produced on the safety issue were not so overwhelmingly one-sided as in this case.25 The State of Wisconsin has failed to make even a colorable showing that its regulations contribute to highway safety. The judgment of the District Court is reversed, and the case is remanded for further proceedings consistent with this opinion.
33
It is so ordered.
34
Mr. Justice STEVENS took no part in the consideration or decision of this case.
35
Mr. Justice BLACKMUN, with whom THE CHIEF JUSTICE, Mr. Justice BRENNAN, and Mr. Justice REHNQUIST join, concurring.
36
I join the opinion of the Court, but I add these comments to emphasize the narrow scope of today's decision.
37
First, the Court's reliance on Pike v. Bruce Church, Inc., 397 U.S. 137, 90 S.Ct. 844, 25 L.Ed.2d 174 (1970), does not signal, for me, a new approach to review of state highway safety regulations under the Commerce Clause. Wisconsin argues that the Court previously has refused to balance safety considerations against burdens on interstate commerce. Brief for Appellees 8. This contention misreads Bibb v. Navajo Freight Lines, 359 U.S. 520, 79 S.Ct. 962, 3 L.Ed.2d 1003 (1959), which recognized the Court's responsibility to weigh the national interest in free-flowing commerce against " 'slight or problematical' " safety interests. Id., at 524, 79 S.Ct. at 964, quotingSouthern Pacific Co. v. Arizona ex rel. Sullivan, 325 U.S. 761, 776, 65 S.Ct. 1515, 1523, 89 L.Ed. 1915 (1945).
38
Second, the reliance on Pike should not be read to equate the factual balance struck here with the balance established in Pike regarding the Arizona Fruit and Vegetable Standardization Act. Arizona prohibited interstate shipment of cantaloupes not "packed in regular compact arrangement in closed standard containers." 397 U.S., at 138, 90 S.Ct., at 845, quoting Ariz.Rev.Stat.Ann. § 3-503 C (Supp.1969). Application of the prohibition to the appellee grower would have prevented it from processing its cantaloupes just across the state lin in California, and would have required it to construct a packing facility in Arizona. The State attempted to justify this burden on interstate commerce solely by its interest "to promote and preserve the reputation of Arizona growers by prohibiting deceptive packaging." 397 U.S., at 143, 90 S.Ct., at 848. More specifically, Arizona wanted the appellee to package the cantaloupes in the State so that the high-quality fruit could be advertised as grown in Arizona rather than California. Although recognizing the legitimacy of the State's interest, the Court refused to accord the concern much weight in the Commerce Clause balancing:
39
"[T]he State's tenuous interest in having the company's cantaloupes identified as originating in Arizona cannot constitutionally justify the requirement that the company build and operate an unneeded $200,000 packing plant in the State." Id., at 145, 90 S.Ct., at 849.
40
In short, despite the unchallenged existence and legitimacy of the State's interest, the Court determined that the interest was not important enough to justify the burden on commerce.
41
Neither the Pike opinion nor today's decision suggests that a similar balance would be struck when a State legitimately asserts the existence of a safety justification for a regulation. In Pike itself the Court noted that it did not confront " 'state legislation in the field of safety where the propriety of local regulation has long been recognized.' " Id., at 143, 90 S.Ct., at 848, quoting Southern Pacific Co. v. Arizona ex rel. Sullivan, 325 U.S., at 796, 65 S.Ct., at 1532 (Douglas, J., dissenting). In other words, if safety justifications are not illusory, the Court will not second-guess legislative judgment about their importance in comparison with related burdens on interstate commerce. I therefore join the opinion of the Court because its ultimate balancing does not depart from this principle, as stated in Bibb v. Navajo Freight Lines:
42
"These safety measures carry a strong presumption of validity when challenged in court. If there are alternative ways of solving a problem, we do not sit to determine which of them is best suited to achieve a valid state objective. Policy decisions are for the state legislature, absent federal entry into the field." 359 U.S., at 524, 79 S.Ct., at 965.
43
Here, the Court does not engage in a balance of policies; it does not make a legislative choice. Instead, after searching the factual record developed by the parties, it concludes that the safety interests have not been shown to exist as a matter of law.
44
Third, the illusory nature of the safety interests in this case is illustrated not only by the overwhelming empirical data submitted by the appellants, but also by the State's willingness to permit the use of oversized vehicles under the numerous administrative exceptions for in-state manufacturers and important Wisconsin industries. See ante, at 433-434, nn. 4-5, and 446-447. From 1973 through June 1975, the State issued 43,900 annual or general permits for the use of vehicles longer than 65 feet. Brief of Plaintiffs before the District Court in Case No. 75-C-172, App.C, 10-11. An additional 16,760 single-trip permits were granted during the same period. Id., at 11. Despite the alleged safety problems, the State regularly permitted the use of oversized vehicles merely to lower the cost of transportation for in-state industries. The bulkiness of the cargoes frequently did not justify the permits. See Deposition of Robert T. Huber, Chairman of the Wisconsin State Highway Commission, 7-9, 21; Deposition of Wayne Volk, Chief Traffic Engineer, Wisconsin Department of Transportation, 31, 36, 49-50, 53. American Motors, one of the State's largest employers, received permission to use oversized trucks on the 45-mile stretch of highway between Milwaukee and Kenosha, even though the State's Chief Traffic Engineer conceded that the road was heavily traveled. Deposition of Wayne Volk, supra, at 32. Furthermore, Stoughton Body Co., a Wisconsin manufacturer of trailers, received permits to pull oversized, double-trailer vehicles on a two-lane highway to facilitate out-of-state deliveries. Id., at 52-54. The record therefore suggests that the State in practice does not believe that oversized, double-trailer vehicles present a threat to highway safety.
45
Nineteen years after Bibb, then, the Court has been presented with another of those cases—"few in number"—in which highway safety regulations unconstitutionally burden interstate commerce. See 359 U.S., at 529, 79 S.Ct., at 967. The contour-mudflaps law burdened the flow of commerce through Illinois in 1959 just as the length and configuration regulations burden the flow through Wisconsin today. It was shown that neither the mudflaps law nor the regulations contributed to highway safety. Giving the same legislative leeway to Wisconsin that the Court gave to Illinois, Bibb v. Navajo Freight Lines requires reversal of the judgment of the District Court.
1
Appendix A of the District Court opinion contains illustrations of both kinds of trucks. 417 F.Supp. 1352, 1363 (W.D.Wis.1976) (per curiam ).
2
A double can carry a greater volume of general commodities than a single, often without exceeding legal limits on gross vehicle weights. Thus, fewer doubles than singles are needed to carry a given amount of cargo, with consequent savings in fuel and drivers' time. In addition, because the trailers of a double can be routed separately, cargo can be picked up from various shippers, dispatched, and delivered to various destinations more quickly by use of doubles than singles.
3
Subsequent to the District Court's decision, this section was amended to allow single-trailer units up to 59 feet long to be operated without a permit "providing the cargo or cargo space of the semitrailer is 45 feet or less in length and the truck tractor is within the statutory limit in sub. (1)." 1977 Wis.Laws, ch. 29, § 1487h, adding § 348.07(2)(g).
Exempted from the length limit of § 348.07(1) are combinations of mobile homes and their towing vehicles, if their overall length does not exceed 60 feet, § 348.07(2)(d), and implements of husbandry operated temporarily upon the highway, § 348.07(2)(e).
4
The District Court assumed that § 348.08(1) generally allows double-trailer trucks up to 55 feet long to be operated without permits. See 417 F.Supp., at 1354-1355. The State concedes that this assumption was erroneous. Tr. of Oral Arg. 34-37. The section, however, does exempt from its permit requirement combinations of two vehicles pulled by a third and "being transported by the drive-away method in saddle-mount combination," where overall length does not exceed 55 feet, § 348.08(1)(a); combinations of farm tractors pulling two trailers or one trailer and one implement of husbandry, if the combination is used exclusively for farming and its overall length does not exceed 55 feet, § 348.08(1)(b); and "tour trains" operated primarily on county and municipal roads for recreational or educational purposes, § 348.08(1)(c). The terms "drive-away method" and "saddle-mount combination" in § 348.08(1)(a) are not defined by the statute or regulations, but they apparently refer to a method of towing one four-wheel motor vehicle by resting its front wheels on the back of a second four-wheel motor vehicle. See 49 CFR §§ 390.9, 393.71, and 393.17 (1976).
5
The Commission also is authorized to issue annual permits to operate overlength vehicles "to industries and to their agent motor carriers owning and operating oversize vehicles in connection with interplant, and from plant to state line, operations in this state," § 348.27(4); "to pipeline companies or operators or public service corporations for transportation of poles, pipe, girders and similar materials . . . used in its [sic ] business," § 348.27(5); "to companies and individuals hauling peeled or unpeeled pole-length forest products used in its [sic ] business," provided that overall length does not exceed 65 feet, § 348.27(5); "to auto carriers operating 'haulaways' specially constructed to transport motor vehicles," provided that overall length does not exceed 65 feet, § 348.27(5); "to licensed mobile home transport companies and to licensed mobile home manufacturers and dealers authorizing them to transport oversize mobile homes," § 348.27(7); to persons transporting "loads of pole length and pulpwood exceeding statutory length . . . limitations . . . for a distance not to exceed 3 miles from the Michigan-Wisconsin state line," § 348.27(9); and to other persons "[f]or good cause in specified instances . . . for a specified period . . . [to] allow loads exceeding the size . . . limitations imposed by this chapter," § 348.27(3).
Section 348.25(4) provides that permits "shall be issued only for the transporting of a single article or vehicle which exceeds statutory size . . . limitations and which cannot reasonably be divided or reduced TO COMPLY WITH STATUTORY SIZE . . . LIMITATIONS . . . ." the Commission by regulation, however, exempts general, industrial interplant, and double-trailer milk truck permits from this requirement. Wis.Admin.Code § Hy 30.01(3)(c) (June 1976). It appears that the Commission interprets § 348.25(4) to require only that it would be less economical, rather than physically impossible, to divide a load. See App. 200, 210, 211-212.
6
Consolidated also sought authority to operate over Interstate Highway 894, an alternative route which bypasses the Milwaukee metropolitan area.
7
The complaint named as defendants, individually and in their official capacities, Rice, the Secretary of the Wisconsin Department of Transportation; Huber, the Chairman of the Wisconsin Highway Commission; Sweda and Young, members of the Commission; Volk, the Chief Traffic Engineer of Wisconsin; Versnik, the commanding officer of the Wisconsin State Patrol; and LaFollette, the Attorney General of Wisconsin. We shall refer to the defendants collectively as "the State."
The complaint also stated a claim under the Equal Protection Clause of the Fourteenth Amendment which the District Court rejected and which we do not reach.
8
Section 2281 was repealed by Pub.L. 94-381, 90 Stat. 1119, the day before the three-judge court's decision in this case. The repeal, however, did not affect actions commenced on or before its date of enactment. See § 7 of Pub.L. 94-381, 90 Stat. 1120.
9
According to a stipulated exhibit, at the time of trial only 17 States and the District of Columbia did not allow 65-foot doubles on their highways. A few more permitted their operation on designated highways, and the rest allowed them on all highways. App. 278. For a more detailed summary of current state laws regulating truck length and configuration, see American Association of State Highway and Transportation Officials, Legal Maximum Dimensions and Weights of Motor Vehicles Compared with AASHTO Standards (1976).
10
The State did introduce expert testimony that occupants of smaller vehicles are more likely to be killed in collisions with large trucks than occupants of larger vehicles. The study upon which this testimony was based did not distinguish between 55-foot singles and 65-foot doubles, and the State's expert witness had no opinion as to their relative safety. App. 154.
11
He also said that the state legislature, in response to this feeling, had declined to enact legislation that would have allowed 65-foot doubles to be operated without permits. He interpreted this legislative inaction as evidence of a legislative intent that the Commission should not issue permits for such trucks, despite its statutory power to do so.
12
Indeed, the State agrees that "[a]ppellants have shown that 65 foot twin trailers have as good a safety record as other large vehicles." Brief for Appellees 13.
13
It appears that 65-foot doubles must be routed as far south as Missouri because Iowa, which Interstate Highway 80 crosses on an east-west route, also bans 65-foot doubles.
14
An officer of Consolidated estimated that it costs the company in excess of $2 million annually to make the various adjustments in operations that are required by Wisconsin law. An officer of Raymond estimated that the company could save up to $63,000 annually on fuel and up to $102,000 annually on drivers' wages if it could use 65-foot doubles on its route between Chicago and Minneapolis.
15
Cooley v. Board of Wardens, 12 How. 299, 319, 13 L.Ed. 996 (1852), distinguished between subjects "imperatively demanding a single uniform rule" and subjects "imperatively demanding that diversity, which alone can meet the local necessities." Other cases have distinguished between state regulations that affect interstate commerce "directly," and those that affect it "indirectly." E. g., Hall v. DeCuir, 95 U.S. 485, 488, 24 L.Ed. 547 (1878); Smith v. Alabama, 124 U.S. 465, 482, 8 S.Ct. 564, 571, 31 L.Ed. 508 (1888). And many cases have distinguished between regulations that are an exercise of the State's "police powers," and those that are "regulations of commerce." E. g., Railroad Co. v. Fuller, 17 Wall. 560, 570, 21 L.Ed. 710 (1873); Smith v. Alabama, supra, at 482, 8 S.Ct., at 571.
16
See, e. g., Di Santo v. Pennsylvania, 273 U.S. 34, 44, 47 S.Ct. 267, 271, 71 L.Ed. 524 (1927) (Stone, J., dissenting); Parker v. Brown, 317 U.S. 341, 362-363, 63 S.Ct. 307, 319, 87 L.Ed. 315 (1943); Southern Pacific Co. v. Arizona ex rel. Sullivan, 325 U.S. 761, 768-769, 65 S.Ct. 1515, 1519-1520, 89 L.Ed. 1915 (1945); H. P. Hood & Sons, Inc. v. Du Mond, 336 U.S. 525, 552-553, 65 S.Ct. 657, 678-679, 93 L.Ed. 865 (1949) (Black, J., dissenting).
17
Congress has considered pre-empting this field, but it has not acted. See, e. g., S.Rep.No. 93-1111, p. 10 (1974); Hearings on Transportation and the New Energy Policies (Truck Sizes and Weights) before the Subcommittee on Transportation of the Senate Committee on Public Works, 93d Cong., 2d Sess. (1974).
18
The Court's special deference to state highway regulations derives in part from the assumption that where such regulations do not discriminate on their face against nterstate commerce, their burden usually falls on local economic interests as well as other States' economic interests, thus insuring that a State's own political processes will serve as a check against unduly burdensome regulations. Compare South Carolina State Highway Dept. v. Barnwell Bros., Inc., 303 U.S. 177, 187, 58 S.Ct. 510, 514, 82 L.Ed. 734 (1938), with Southern Pacific Co. v. Arizona ex rel. Sullivan, 325 U.S., at 783, 65 S.Ct., at 1527. It also derives from a recognition that the States shoulder primary responsibility for the construction, maintenance, and policing of their highways, and that highway conditions may vary widely from State to State. See Bibb v. Navajo Freight Lines, Inc., 359 U.S. 520, 523-524, 79 S.Ct. 962, 964, 3 L.Ed.2d 1003 (1959); Barnwell Bros., supra, 303 U.S. at 187, 58 S.Ct. at 514.
19
The District Court, without mentioning this evidence, suggested that language in Morris v. Duby, 274 U.S. 135, 144, 47 S.Ct. 548, 550, 71 L.Ed. 966 (1927), and Buck v. Kuykendall, 267 U.S. 307, 315, 45 S.Ct. 324, 325, 69 L.Ed. 623 (1925), established a principle "that for purposes of judicial review of state highway legislation, size restrictions might be deemed inherently tied to public safety . . . ." 417 F.Supp., at 1360. The language relied upon does not go so far, and it antedates the era of the limited-access, four-lane divided highways involved in this case. Size restrictions, like other highway safety regulations, are entitled to a strong presumption of validity, but this presumption cannot justify a court in closing its eyes to uncontroverted evidence of record.
20
The State's failure to present any evidence to rebut appellants' showing in itself sets this case apart from Barnwell Bros., see 303 U.S., at 196, 58 S.Ct. at 519, and even from Bibb, see 359 U.S., at 525, 79 S.Ct., at 965.
21
The District Court said: "That compliance with Wisconsin regulations imposes added costs upon the plaintiffs is a fact of no material consequence." 417 F.Supp., at 1361, citing Bibb, supra, 359 U.S., at 526, 79 S.Ct., at 966. In Bibb, the Court thought that the cost to carriers of installing the mudguards required by Illinois would not, in itself, require invalidation of the Illinois law. See 359 U.S., at 526, 79 S.Ct., at 966. But the Court also made it clear that, "[c]ost taken into consideration with other factors might be relevant in some cases to the issue of burden on commerce." Ibid.
22
The State contends that its regulations do not interfere with interlining as seriously as the Illinois law at issue in Bibb because 65-foot doubles "may freely be hauled through Wisconsin, but, of course, they must be hauled one at a time. . . . This does not prevent interlining, it just makes it more expensive." Brief for Appellees 11. This contention overlooks the fact that in Bibb interlining could have continued if either the originating or the connecting carriers had been willing to bear the expense of installing the contour mudguards required by Illinois law.
23
The State argues that this case is distinguishable from Bibb because the contour mudguards required by Illinois were illegal in Arkansas, and the straight mudguards required by Arkansas were illegal in Illinois. Here, by contrast, the 55-foot singles that are legal in Wisconsin are not illegal in any other State. But the State fails to appreciate that the conflict between the Illinois and Arkansas requirements in Bibb was important because of the added burden of delay and expense that it imposed on carriers operating between the two States. The conflict would have required such carriers to stop somewhere between Illinois and Arkansas, either to shift cargo from one trailer to another, 359 U.S., at 526, 79 S.Ct., at 966, or to change mudguards on the original trailer, id., at 527, 79 S.Ct., at 966.
We also note that the interference with interlining that weighed in the Bibb decision did not result from the conflict between the Illinois and Arkansas requirements, but rather from the fact that many originating carriers did not operate in Illinois and hence "would not be expected to equip [their] trailers with contour mudguards." Id., at 528, 79 S.Ct., at 967.
24
Under Wis.Stat. § 348.27(4) (1975), the Commission issues permits to Wisconsin industries and their agent motor carriers to transport goods in trucks over 55 feet long from plants in Wisconsin to the state line, and thence to markets in other States, but it does not issue permits to industries with plants i other States to transport goods in trucks over 55 feet long through Wisconsin to markets in other States. The District Court's sua sponte speculation that industries in States other than Wisconsin also might be eligible for permits under § 348.27(4), see 417 F.Supp., at 1357 n.9, is refuted by the record, see App. 257-258, and was disavowed by the State, Tr. of Oral Arg. 30; see Brief for Appellees 4.
Given our conclusion that the regulations preventing issuance of the requested permits unconstitutionally burden interstate commerce, we find it unnecessary to decide whether appellants would be entitled to relief solely on the basis of the discrimination against interstate commerce embodied in § 348.27(4). Compare Brief for Appellees 4, and Brief for Association of American Railroads as Amicus Curiae 20, with Reply Brief for Appellants 39. Neither do we intimate that nondiscriminatory exceptions to general length, width, or weight limits are inherently suspect. Cf. Sproles v. Binford, 286 U.S. 374, 391-396, 52 S.Ct. 581, 586-588, 7 L.Ed. 1167 (1932).
25
As one commentator has written, Commerce Clause adjudication must depend in large part "upon the thoroughness with which the lawyers perform their task in the conduct of constitutional litigation. Here, as in many other fields, constitutionality is conditioned upon the facts, and to the lawyers the courts are entitled to look for garnering and presenting the facts." Dowling, Interstate Commerce and State Power, 27 Va.L.Rev. 1, 27-28 (1940).
| 78
|
434 U.S. 452
98 S.Ct. 799
54 L.Ed.2d 682
UNITED STATES STEEL CORPORATION et al., Appellants,v.MULTISTATE TAX COMMISSION et al.
No. 76-635.
Argued Oct. 11, 1977.
Decided Feb. 21, 1978.
Syllabus by the Court
The Multistate Tax Compact was entered into by a number of States for the stated purposes of (1) facilitating proper determination of state and local tax liability of multistate taxpayers; (2) promoting uniformity and compatibility in state tax systems; (3) facilitating taxpayer convenience and compliance in the filing of tax returns and in other phases of tax administration; and (4) avoiding duplicative taxation. To these ends, the Compact created the appellee Multistate Tax Commission. Each member State is authorized to request that the Commission perform an audit on its behalf, and the Commission may seek compulsory process in aid of its auditing power in the courts of any State specifically permitting such procedure. Individual States retain complete control over all legislative and administrative action affecting tax rates, the composition of the tax base, and the means and methods of determining tax liability and collecting any taxes due. Each member State is free to adopt or reject the Commission's rules and regulations, and to withdraw from the Compact at any time. Appellants, on behalf of themselves and all other multistate taxpayers threatened with Commission audits, brought this action in District Court against appellees (the Commission, its members, and its Executive Director) challenging the constitutionality of the Compact on the grounds, inter alia, that (1) it is invalid under the Compact Clause of the Constitution (which provides: "No State shall, without the Consent of Congress, . . . enter into any Agreement or Compact with another State"); (2) it unreasonably burdens interstate commerce; and (3) it violates the rights of multistate taxpayers under the Fourteenth Amendment. A three-judge court granted summary judgment for appellees. Held:
1. The Multistate Tax Compact is not invalid under the rule of Virginia v. Tennessee, 148 U.S. 503, 519, 13 S.Ct. 728, 734, 37 L.Ed. 537, that the application of the Compact Clause is limited to agreements that are "directed to the formation of any combination tending to the increase of political power in the States, which may encroach upon or interfere with the just supremacy of the United States." Pp. 459-478.
(a) The Compact's multilateral nature and its establishment of an ongoing administrative body do not, standing alone, present significant potential for conflict with the principles underlying the Compact Clause. The num er of parties to an agreement is irrelevant if it does not impermissibly enhance state power at the expense of federal supremacy, and the powers delegated to the administrative body must also be judged in terms of such enhancement. P. 472.
(b) Under the test of whether the particular compact enhances state power quoad the Federal Government, this Compact does not purport to authorize member States to exercise any powers they could not exercise in its absence, nor is there any delegation of sovereign power to the Commission, each State being free to adopt or reject the Commission's rules and regulations and to withdraw from the Compact at any time. Pp. 472-473.
(c) Appellants' various contentions that certain procedures and requirements of the Commission encroach upon federal supremacy with respect to interstate commerce and foreign relations and impair the sovereign rights of nonmember States, are without merit, primarily because each member State could adopt similar procedures and requirements individually without regard to the Compact. Even if state power is enhanced to some degree, it is not at the expense of federal supremacy. Pp. 473-478.
2. Appellants' allegations that the Commission has abused its powers by harassing members of the plaintiff class in that it induced several States to issue burdensome requests for production of documents and to deviate from state law by issuing arbitrary assessments against taxpayers who refuse to comply with such orders, do not establish that the Compact violates the Commerce Clause or the Fourteenth Amendment. But even if such allegations were supported by the record, they are irrelevant to the facial validity of the Compact, it being only the individual State, not the Commission, that has the power to issue an assessment, whether arbitrary or not. Pp. 478-479.
417 F.Supp. 795, affirmed.
Erwin N. Griswold, Washington, D. C., for appellants.
William D. Dexter, Olympia, Wash., for appellees.
Mr. Justice POWELL delivered the opinion of the Court.
1
The Compact Clause of Art. I, § 10, cl. 3, of the Constitution provides: "No State shall, without the Consent of Congress, . . . enter into any Agreement or Compact with another State, or with a foreign Power . . . ." The Multistate Tax Compact, which established the Multistate Tax Commission, has not received congressional approval. This appeal requires us to decide whether the Compact is invalid for that reason. We also are required to decide whether it impermissibly encroaches on congressional power under the Commerce Clause and whether it operates in violation of the Fourteenth Amendment.
2
* The Multistate Tax Compact was drafted in 1966 and became effective, according to its own terms, on August 4, 1967, after seven States had adopted it. By the inception of this litigation in 1972, 21 States had become members.1 Its formation was a response to this Court's decision inNorthwestern States Portland Cement Co. v. Minnesota, 358 U.S. 450, 79 S.Ct. 357, 3 L.Ed.2d 421 (1959), and the congressional activity that followed in its wake.
3
In Northwestern States, this Court held that net income from the interstate operations of a foreign corporation may be subjected to state taxation, provided that the levy is nondiscriminatory and is fairly apportioned to local activities that form a sufficient nexus to support the exercise of the taxing power. This prompted Congress to enact a statute, Act of Sept. 14, 1959, Pub.L. 86-272, 73 Stat. 555, which sets forth certain minimum standards for the exercise of that power.2 It also authorized a study for the purpose of recommending legislation establishing uniform standards to be observed by the States in taxing income of interstate businesses. Although the results of the study were published in 1964 and 1965,3 Congress has not enacted any legislation dealing with the subject.4
4
While Congress was wrestling with the problem, the Multistate Tax Compact was drafted.5 It symbolized the recognition that, as applied to multistate businesses, traditional state tax administration was inefficient and costly to both State and taxpayer. In accord with that recognition, Art. I of the Compact states four purposes: (1) facilitating proper determination of state and local tax liability of multistate taxpayers, including the equitable apportionment of tax bases and settlement of apportionment disputes; (2) promoting uniformity and compatibility in state tax systems; (3) facilitating taxpayer convenience and compliance in the filing of tax returns and in other phases of tax administration; and (4) avoiding duplicative taxation.
5
To these ends, Art. VI creates the Multistate Tax Commission, composed of the tax administrators from all the member States. Section 3 of Art. VI authorizes the Commission (i) to study state and local tax systems; (ii) to develop and recommend proposals for an increase in uniformity and compatibility of state and local tax laws in order to encourage simplicity and improvement in state and local tax law and administration; (iii) to compile and publish information that may assist member States in implementing the Compact and taxpayers in complying with the tax laws; and (iv) to do all things necessary and incidental to the administration of its functions pursuant to the Compact.
6
Articles VII and VIII detail more specific powers of the Commission. Under Art. VII, the Commission may adopt uniform administrative regulations in the event that two or more States have uniform provisions relating to specified types of taxes. These regulations are advisory only. Each member Sta e has the power to reject, disregard, amend, or modify any rules or regulations promulgated by the Commission. They have no force in any member State until adopted by that State in accordance with its own law.
7
Article VIII applies only in those States that specifically adopt it by statute. It authorizes any member State or its subdivision to request that the Commission perform an audit on its behalf. The Commission, as the State's auditing agent, may seek compulsory process in aid of its auditing power in the courts of any State that has adopted Art. VIII. Information obtained by the audit may be disclosed only in accordance with the laws of the requesting State. Moreover, individual member States retain complete control over all legislation and administrative action affecting the rate of tax, the composition of the tax base (including the determination of the components of taxable income), and the means and methods of determining tax liability and collecting any taxes determined to be due.
8
Article X permits any party to withdraw from the Compact by enacting a repealing statute. The Compact's other provisions are of less relevance to the matter before us.6
9
In 1972, appellants brought this action on behalf of themselves7 and all other multistate taxpayers threatened with audits by the Commission. They named the Commission, its individual Commissioners, and its Executive Director as defendants. Their complaint challenged the constitutionality of the Compact on four grounds: (1) the Compact, never having received the consent of Congress,8 is invalid under the Compact Clause; (2) it unreasonably burdens interstate commerce; (3) it violates the rights of multistate taxpayers under the Fourteenth Amendment; and (4) its audit provisions violate the Fourth and Fourteenth Amendments. Appellants sought a declaratory judgment that the Compact is invalid and a permanent injunction barring its operation.
10
The complaint survived a motion to dismiss. 367 F.Supp. 107 (S.D.N.Y.1973). After extensive discovery, appellees moved for summary judgment. A three-judge District Court, convened pursuant to 28 U.S.C. § 2281, rejected appellants' claim that the record would not support summary judgment. 417 F.Supp. 795, 798 (S.D.N.Y.1976). Turning to the merits, the District Court first rejected the contention that the Compact Clause requires congressional consent to every agreement between two or more States. The court cited Virginia v. Tennessee, 148 U.S. 503, 13 S.Ct. 728, 37 L.Ed. 537 (1893), and New Hampshire v. Maine, 426 U.S. 363, 96 S.Ct. 2113, 48 L.Ed.2d 701 (1976), in support of its holding that consent is necessary only in the case of a compact that enhances the political power of the member States in relation to the Federal Government. The District Court found neither enhancement of state political power nor encroachment upon federal supremacy. Concluding that appellants' Commerce Clause, Fourth Amendment, and Fourteenth Amendment claims also lacked merit, the District Court granted summary judgment for appellees.
11
Before this Court, appellants have abandoned their search-and-seizure claim. Although they preserved their claim relating to the propriety of summary judgment, we find no reason to disturb the conclusion of the court below on that point. We have before us, therefore, appellant's contentions under the Compact Clause, the Commerce Clause, and the Fourteenth Amendment. We consider first the Compact Clause contention.
II
12
Read literally, the Compact Clause would require the States to obtain congressional approval before entering into any agreement among themselves, irrespective of form, subject, duration, or interest to the United States. The difficulties with such an interpretation were identified by Mr. Justice Field in his opinion for the Court in Virginia v. Tennessee, supra. His conclusion that the Clause could not be read literally was approved in subsequent dicta,9 but this Court did not have occasion expressly to apply it in a holding until our recent decision in New Hampshire v. Maine, supra.
13
Appellants urge us to abandon Virginia v. Tennessee and New Hampshire v. Maine, but provide no effective alternative other than a literal reading of the Compact Clause. At this late date, we are reluctant to accept this invitation to circumscribe modes of interstate cooperation that do not enhance state power to the detriment of federal supremacy. We have examined, nevertheless, the origin and development of the Clause, to determine whether history lends controlling support to appellants' position.
14
Article I, § 10, cl. 1, of the Constitution—the Treaty Clause declares: "No State shall enter into Any Treaty, Alliance or Confederation . . . ." Yet Art. I, § 10, cl. 3—the Compact Clause—permits the States to enter into "agreements" or "compacts," so long as congressional consent is obtained. The Framers clearly perceived compacts and agreements as differing from treaties.10 The records of the Constitutional Convention, however, are barren of any clue as to the precise contours of the agreements and compacts governed by the Compact Clause.11 This suggests that the Framers used the words "treaty," "compact," and "agreement" as terms of art, for which no explanation was required12 and with which we are unfamiliar. Further evidence that the Framers ascribed precise meanings to these words appears in contemporary commentary.13
15
Whatever distinct meanings the Framers attributed to the terms in Art. I, § 10, those meanings were soon lost. In 1833, Mr. Justice Story perceived no clear distinction among any of the terms.14 Lacking any clue as to the categorical definitions the Framers had ascribed to them, Mr. Justice Story developed his own theory. Treaties, alliances, and confederations, he wrote, genera ly connote military and political accords and are forbidden to the States. Compacts and agreements, on the other hand, embrace "mere private rights of sovereignty; such as questions of boundary; interests in land situate in the territory of each other; and other internal regulations for the mutual comfort and convenience of States bordering on each other." 2 J. Story, Commentaries on the Constitution of the United States § 1403, p. 264 (T. Cooley ed. 1873). In the latter situations, congressional consent was required, Story felt, "in order to check any infringement of the rights of the national government." Ibid.
16
The Court's first opportunity to comment on the scope of the Compact Clause, Holmes v. Jennison, 14 Pet. 540, 10 L.Ed. 579 (1840), proved inconclusive. Holmes had been arrested in Vermont on a warrant issued by Jennison, the Governor. The warrant apparently reflected an informal agreement by Jennison to deliver Holmes to authorities in Canada, where he had been indicted for murder. On a petition for habeas corpus, the Supreme Court of Vermont held Holmes' detention lawful. Although this Court divided evenly on the question of its jurisdiction to review the decision, Mr. Chief Justice Taney, in an opinion joined by Mr. Justice Story and two others, addressed the merits of Holmes' claim that Jennison's informal agreement to surrender him fell within the scope of the Compact Clause. Mr. Chief Justice Taney focused on the fact that the agreement in question was between a State and a foreign government. Since the clear intention of the Framers had been to cut off all communication between the States and foreign powers, id., at 568-579, he concluded that the Compact Clause would permit an arrangement such as the one at issue only if "made under the supervision of the United States . . .," id., at 578. In his separate opinion, Mr. Justice Catron expressed disquiet over what he viewed as Mr. Chief Justice Taney's literal reading of the Compact Clause, noting that it might threaten agreements between States theretofore considered lawful.15
17
Despite Mr. Justice Catron's fears, courts faced with the task of applying the Compact Clause appeared reluctant to strike down newly emerging forms of interstate cooperation.16 For example, in Union Branch R. Co. v. East Tennessee & G. R. Co., 14 Ga. 327 (1853), the Supreme Court of Georgia rejected a Compact Clause challenge to an agreement between Tennessee and Georgia concerning the construction of an interstate railroad. Omitting any mention of Holmes v. Jennison, the Georgia court seized upon Story's observation that the words "treaty, alliance, and confederation" generally were known to apply to treaties of a political character. Without explanation, the court transferred this description of the Treaty Clause to the Compact Clause, which it perceived as restraining the power of the States only with respect to agreements "which might limit, or infringe upon a full and complete execution by the General Government, of the powers intended to be delegated by the Federal Constitution . . . ." 14 Ga., at 339.17 A broader prohibition could not have been intended, since it was unnecessary to protect the Federal Government.18 Unless this view was taken, said the court:
18
"We must hold that a State, without the consent of Congress, can make no sort of contract, whatever, with another State. That it cannot sell to another state, any portion of public property, . . . though it may so sell to individuals. . . .
19
"We can see no advantage to be gained by, or benefit in such a provision; and hence, we think it was not intended." Id., at 340.
20
It was precisely this approach that formed the basis in 1893 for Mr. Justice Field's interpretation of the Compact Clause in Virginia v. Tennessee. In that case, the Court held that Congress tacitly had assented to the running of a boundary between the two States. In an extended dictum, however, Mr. Justice Field took the Court's first opportunity to comment upon the Compact Clause since the neglected essay in Holmes v. Jennison. Mr. Justice Field, echoing the puzzlement expressed by Story 60 years earlier, observed:
21
"The terms 'agreement' or 'compact' taken by themselves, are sufficiently comprehensive to embrace all forms of stipulation, written or verbal, and relating to all kinds of subjects; to those to which the United States can have no possible objection or have any interest in interfering with, as well as to those which may tend to increase and build up the political influence of the contracting states, so as to encroach upon or impair the supremacy of the United States, or interfere with their rightful management of particular subjects placed under their entire control." 148 U.S., at 517-518, 13 S.Ct., at 734.
22
Mr. Justice Field followed with four examples of interstate agreements that could "in no respect concern the United States": (1) an agreement by one State to purchase land within its borders owned by another State; (2) an agreement by one State to ship merchandise over a canal owned by another; (3) an agreement to drain a malarial district on the border between two States; and (4) an agreement to combat an immediate threat, such as invasion or epidemic. As the Compact Clause could not have been intended to reach every possible interstate agreement, it was necessary to construe the terms of the Compact Clause by reference to the object of the entire section in which it appears:19
23
"Looking at the clause in which the terms 'compact' or 'agreement' appear, it is evident that the prohibition is directed to the formation of any combination tending to the increase of political power in the states, which may encroach upon or interfere with the just supremacy of the United States." Id., at 519, 13 S.Ct., at 734.
24
Mr. Justice Field reiterated this functional view of the Compact Clause a year later in Wharton v. Wise, 153 U.S. 155, 168-170, 14 S.Ct. 783, 786-787, 38 L.Ed. 669 (1894).
25
Although this Court did not have occasion to apply Mr. Justice Field's test for many years, it has been cited with approval on several occasions. Louisiana v. Texas, 176 U.S. 1, 17, 20 S.Ct. 251, 256, 44 L.Ed. 347 (1900); Stearns v. Minnesota, 179 U.S. 223, 246-248, 21 S.Ct. 73, 81-82, 45 L.Ed. 162 (1900); North Carolina v. Tennessee, 235 U.S. 1, 16, 35 S.Ct. 8, 13, 59 L.Ed. 97 (1914).20 Moreover, several decisions of this Court have upheld a variety of interstate agreements effected through reciprocal legislation without congressional consent. E g., St. Louis & S. F. R. Co. v. James, 161 U.S. 545, 16 S.Ct. 621, 40 L.Ed. 802 (1896); Hendrick v. Maryland, 235 U.S. 610, 35 S.Ct. 140, 59 L.Ed. 385 (1915); Bode v. Barrett, 344 U.S. 583, 73 S.Ct. 468, 97 L.Ed. 567 (1953); New York v. O'Neill, 359 U.S. 1, 79 S.Ct. 564, 3 L.Ed.2d 585 (1959). While none of these cases explicitly applied the Virginia v. Tennessee test, they reaffirmed its underlying assumption: not all agreements between States are subject to the strictures of the Compact Clause.21 In O'Neill, for example, this Court upheld the Uniform Law to Secure the Attendance of Witnesses from Within or Without the State in Criminal Proceedings, which had been enacted in 41 States and Puerto Rico. That statute permitted the judge of a court of any enacting State to invoke the process of the courts of a sister State for the purpose of compelling the attendance of witnesses at criminal proceedings in the requesting State. Although no Compact Clause question was directly presented, the Court's opinion touched upon similar concerns:
26
"The Constitution did not purport to exhaust imagination and resourcefulness in devising fruitful interstate relationships. It is not to be construed to limit the variety of arrangements which are possible through the voluntary and cooperative actions of individual States with a view to increasing harmony within the federalism created by the Constitution. Far from being divisive, this legislation is a catalyst of cohesion. It is within the unrestricted area of action left to the States by the Constitution." 359 U.S., at 6, 79 S.Ct., at 568.
27
The reciprocal-legislation cases support the soundness of the Virginia v. Tenne see rule, since the mere form of the interstate agreement cannot be dispositive. Agreements effected through reciprocal legislation22 may present opportunities for enhancement of state power at the expense of the federal supremacy similar to the threats inherent in a more formalized "compact." Mr. Chief Justice Taney considered this point in Holmes v. Jennison, 14 Pet., at 573, 10 L.Ed. 579:
28
"Can it be supposed that the constitutionality of the act depends on the mere form of the agreement? We think not. The Constitution looked to the essence and substance of things, and not to mere form. It would be but an evasion of the constitution to place the question upon the formality with which the agreement is made."
29
The Clause reaches both "agreements" and "compacts," the formal as well as the informal.23 The relevant inquiry must be one of impact on our federal structure.
30
This was the status of the Virginia v. Tennessee test until two Terms ago, when we decided New Hampshire v. Maine, 426 U.S. 363, 96 S.Ct. 2113, 48 L.Ed.2d 701 (1976). In that case we specifically applied the test and held that an interstate agreement locating an ancient boundary did not require congressional consent. We reaffirmed Mr. Justice Field's view that the "application of the Compact Clause is limited to agreements that are 'directed to the formation of any combination tending to the increase of political power in the States, which may encroach upon or interfere with the just supremacy of the United States.' " Id., at 369, 96 S.Ct., at 2117, quoting Virginia v. Tennessee, 148 U.S., at 519, 13 S.Ct., at 734. This rule states the proper balance between federal and state power with respect to compacts and agreements among States.
31
Appellants maintain that history constrains us to limit application of this rule to bilateral agreements involving no independent administrative body. They argue that this Court never has upheld a multilateral agreement creating an active administrative body with extensive powers delegated to it by the States, but lacking congressional consent. It is true that most multilateral compacts have been submitted for congressional approval. But this historical practice, which may simply reflect considerations of caution and convenience on the part of the submitting States, is not controlling.24 It is also true that the precise interstate mechanism involved in this case has not been presented to this Court before. New York v. O'Neill, supra, however, involving analogous multilateral arrangements, stands as an implicit rejection of appellants' proposed limitation of the Virginia v. Tennessee rule.
32
Appellants further urge that the pertinent inquiry is one of potential, rather than actual, impact upon federal supremacy. We agree. But the multilateral nature of the agreement and its establishment of an ongoing administrative body do not, standing alone, present significant potential for conflict with the principles underlying the Compact Clause. The number of parties to an agreement is irrelevant if it does not impermissibly enhance state power at the expense of federal supremacy. As to the powers delegated to the administrative body, we think these also must be judged in terms of enhancement of state power in relation to the Federal Government. See Virginia v. Tennessee, supra, at 520, 13 S.Ct., at 734 (establishment of commission to run boundary not a "compact"). We turn, therefore, to the application of the Virginia v. Tennessee rule to the Compact before us.
III
33
On its face the Multistate Tax Compact contains no provisions that would enhance the political power of the member States in a way that encroaches upon the supremacy of the United States. There well may be some incremental increase in the bargaining power of the member States quoad the corporations subject to their respective taxing jurisdictions. Group action in itself may be more influential than independent actions by the States. But the test is whether the Compact enhances state power quoad the National Government. This pact does not purport to authorize the member States to exercise any powers they could not exercise in its absence. Nor is there any delegation of sovereign power to the Commission; each State retains complete freedom to adopt or reject the rules and regulations of the Commission. Moreover, as noted above, each State is free to withdraw at any time. Despite this apparent compatibility of the Compact with the interpretation of the Clause established by our cases, appellants argue that the Compact's effect is to threaten federal supremacy.
A.
34
Appellants contend initially that the Compact encroaches upon federal supremacy with respect to interstate commerce. This argument, as we understand it, has four principal components. It is claimed, first, that the Commission's use in its audits of "unitary business" and "combination of income" methods25 for determining a corporate taxpayer's income creates a risk of multiple taxation for multistate businesses. Whether or not this risk is a real one, it cannot be attributed to the existence of the Multistate Tax Commission. When the Commission conducts an audit at the request of a member State, it uses the methods adopted by that State. Since appellants do not contest the right of each State to adopt these procedures if it conducted the audits separately,26 they cannot be heard to complain that a threat to federal supremacy arises from the Commission's adoption of the unitary-business standard in accord with the wishes of the member States. Indeed, to the extent that the Commission succeeds in promoting uniformity in the application of state taxing principles, the risks of multiple taxation should be diminished.
35
Appellants' second contention as to enhancement of state power over interstate commerce is that the Commission's regulations provide for apportionment of nonbusiness income. This allegedly creates a substantial risk of multiple taxation, since other States are said to allocate this income to the place of commercial domicile.27 We note first that the regulations of the Commission do not require the apportionment of nonbusiness income. They do define business income, which is apportionable under the regulations, to include elements that might be regarded as nonbusiness income in some States. P-H State & Local Tax Serv. &Par; 6100-6286 (1973). But again there is no claim that the member States could not adopt similar definitions in the absence of the Compact. Any State's ability to exact additional tax revenues from multistate businesses cannot be attributed to the Compact; it is the result of the State's freedom to select, within constitutional limits, the method it prefers.
36
The third aspect of the Compact's operation said to encroach upon federal commerce power involves the Commission's requirement that multistate businesses under audit file data concerning affiliated corporations. Appellants argue that the costs of compiling financial data of related corporations burden the conduct of interstate commerce for the benefit of the taxing States. Since each State presumably could impose similar filing requirements individually, however, appellants again do not show that the Commission's practices, as auditing agent for member States, aggrandize their power or threaten federal control of commerce. Moreover, to the extent that the Commission is engaged in joint audits, appellants' filing burdens well may be reduced.
37
Appellants' final claim of enhanced state power with respect to commerce is that the "enforcement powers" conferred upon the Commission enable that body to exercise authority over interstate business to a greater extent than the sum of the States' authority acting individually. This claim also falls short of meeting the standard of Virginia v. Tennessee. Article VIII of the Compact authorizes the Commission to require the attendance of persons and the production of documents in connection with its audits. The Commission, however, has no power to punish failures to comply. It must resort to the courts for compulsory process, as would any auditing agent empl yed by the individual States. The only novel feature of the Commission's "enforcement powers" is the provision in Art. VIII permitting the Commission to resort to the courts of any State adopting that Article. Adoption of the Article, then, amounts to nothing more than reciprocal legislation for providing mutual assistance to the auditors of the member States. Reciprocal legislation making the courts of one State available for the better administration of justice in another has been upheld by this Court as a method "to accomplish fruitful and unprohibited ends." New York v. O'Neill, 359 U.S., at 11, 79 S.Ct., at 571. Appellees make no showing that increased effectiveness in the administration of state tax laws, promoted by such legislation,28 threatens federal supremacy. See n. 21, supra.
B
38
Appellants further argue that the Compact encroaches upon the power of the United States with respect to foreign relations. They contend that the Commission has conducted multinational audits in which it applied the unitary business method to foreign corporate taxpayers, in conflict with federal policy concerning the taxation of foreign corporations.29
39
This contention was not presented to the court below and in any event lacks substance. The existence of the Compact simply has no bearing on an individual State's ability to utilize the unitary business method in determining the income of a particular multinational taxpayer. Bass, Ratcliff & Gretton, Ltd. v. State Tax Comm'n, 266 U.S. 271, 45 S.Ct. 82, 69 L.Ed. 282 (1924). The Commission, as auditing agent, adopts the method only at the behest of a State requesting an audit. To the extent that its use contravenes any foreign policy of the United States, the facial validity of the Compact is not implicated.
C
40
Appellants' final Compact Clause argument charges that the Compact impairs the sovereign rights of nonmember States. Appellants declare, without explanation, that if the use of the unitary business and combination methods continues to spread among the Western States, unfairness in taxation—presumably the risks of multiple taxation—will be avoidable only through the efforts of some coordinating body. Appellants cite the belief of the Commission's Executive Director that the Commission represents the only available vehicle for effective coordination,30 and conclude that the Compact exerts undue pressure to join upon nonmember States in violation of their "sovereign right" to refuse.
41
We find no support for this conclusion. It has not been shown that any unfair taxation of multistate business resulting from the disparate use of combination and other methods will redound to the benefit of any particular group of States or to the harm of others. Even if the existence of such a situation were demonstrated, it could not be ascribed to the existence of the Compact. Each member State is free to adopt the auditing procedures it thinks best, just as it could if the Compact did not exist. Risks of unfairness and double taxation, then, are independent of the Compact.
42
Moreover, it is not explained how any economic pressure that does exist is an affront to the sovereignty of nonmember States. Any time a State adopts a fiscal or administrative policy that affects the programs of a sister State, pressure to modify those programs may result. Unless that pressure transgresses the bounds of the Commerce Clause or the Privileges and Immunities Clause of Art. IV, § 2, see, e. g., Austin v. New Hampshire, 420 U.S. 656, 95 S.Ct. 1191, 43 L.Ed.2d 530 (1975), it is not clear how our federal structure is implicated. Appellants do not argue that an individual State's decision to apportion nonbusiness income—or to define business income broadly, as the regulations of the Commission actually do—touches upon constitutional strictures. This being so, we are not persuaded that the same decision becomes a threat to the sovereignty of other States if a member State makes this decision upon the Commission's recommendation.
IV
43
Appellants further challenge, on relatively narrow grounds, the validity of the Multistate Tax Compact under the Commerce Clause and the Fourteenth Amendment.31 They allege that the Commission has abused its powers by conducting a campaign of harassment against members of the plaintiff class. Specifically, they claim that the Commission induced eight States to issue burdensome requests for production of documents and to deviate from the provisions of state law by issuing arbitrary assessments against taxpayers who refuse to comply with these harassing production orders.
44
These allegations do not establish that the Compact is in violation either of the Commerce Clause or the Fourteenth Amendment. We observe first that this contention was not presented to the court below. The only evidence of record relating to the allegations are statements in the affidavit of appellants' counsel and an ambiguous excerpt from a letter of the Commission to the Director of Taxation of the State of Hawaii, quoted therein. App. 51-53. On this fragile basis, we hardly would be justified in making an initial finding of fact that appellees engaged in the campaign sketched in the affidavit.
45
Even if appellants' factual allegations were supported by the record, they would be irrelevant to the facial validity of the Compact. As we have noted above, it is only the individual State, not the Commission, that has the power to issue an assessment whether arbitrary or not. If the assessment violates state law, we must assume that state remedies are available.32 E. g., Colgate-Palmolive Co. v. Dorgan, 225 N.W.2d 278 (N.D.1974).
V
46
We conclude that appellants' constitutional challenge to the Multistate Tax Compact fails.33 We affirm the judgment of the District Court.
47
Affirmed.
48
Mr. Justice WHITE, with whom Mr. Justice BLACKMUN joins, dissenting.
49
The majority opinion appears to concede, as I think it should, that the Compact Clause reaches interstate agreements presenting even potential encroachments on federal supremacy. In applying its Compact Clause theory to the circumstances of the Multistate Tax Compact, however, the majority is not true to this view. For if the Compact Clause has any independent protective force at all, it must require the consent of Congress to an interstate scheme of such complexity and detail as this. The majority states it will watch for the mere potential of harm to federal interests, but then approves the Compact here for lack of actual proved harm.
50
* The Constitution incorporates many restrictions on the powers of individual States. Some of these are explicit, some are inferred from positive delegations of power to the Federal Government. In the latter category falls the federal authority over interstate commerce.1 The individual States have long been permitted to legislate, in a nondiscriminatory manner, over matters affecting interstate commerce, where Congress has not exerted its authority, and where the federal interest does not require a uniform rule. Cooley v. Board of Wardens, 12 How. 299, 13 L.Ed. 996 (1852); Southern Pacific Co. v. Arizona ex rel. Sullivan, 325 U.S. 761, 65 S.Ct. 1515, 89 L.Ed. 1915 (1945).
51
It is not denied by any party to this case that the apportionment of revenues, sales, and income of multistate and multinational corporations for taxation purposes is an area over which the Congress could exert authority, ousting the efforts of any States in the field. To date, however, the Federal Government has taken only limited steps in this context.2 No federal legislation has been enacted, nor tax treaties ratified, that would interfere with any State's efforts to apply uniform apportionment rules, unitary business concepts, or single multistate audits of corporations. Hence, leaving to one side appellants' contentions that these matters inherently require uniform federal treatment, there is no obstacle in the Commerce Clause to such action by an individual State.
52
The Compact Clause, however, is directed to joint action by more than one State. If its only purpose in the present context were to require the consent of Congress to agreements between States that would otherwise violate the Commerce Clause, it would have no independent meaning. The Clause must mean that some actions which would be permissible for individual States to undertake are not permissible for a group of States to agree to undertake.
53
There is much history from the Articles of Confederation to support that conclusion.3 In framing the Constitution the new Republic was at pains to correct the divisive factors of the Government under the Articles; and among the most important of these were "compacts witht. the consent of Congs. as between Pena. and N. Jersey, and between Virga. & Maryd." James Madison, "Preface to Debates in the Convention of 1787," 3 M. Farrand, Records of the Federal Convention of 1787, p. 548 (1937). A compact between two States necessarily achieved some object unattainable, or attainable less conveniently, by separate States acting alone. Such effects were jealously guarded against, lest "the Fedl authy [be] violated." Ibid. It was the Federal Government's province to oversee conduct of a greater effect than a single State could accomplish, to protect both its own prerogative and that of the excluded States.4
54
Compacts and agreements between States were put in a separate constitutional category, and purposefully so. Nor is the form used by the agreeing States important; as the majority correctly observes:
55
"Agreements effected through reciprocal legislation may present opportunities for enhancement of state power at the expense of the federal supremacy similar to the threats inherent in a more formalized 'compact.' . . . The Clause reaches both 'agreements' and 'compacts,' the formal as well as the informal. The relevant inquiry must be one of impact on our federal structure." Ante, at 470-471 (footnotes omitted).
56
"Appellants further urge that the pertinent inquiry is one of potential, rather than actual, impact upon federal supremacy. We agree." Ante, at 472.
57
This is an apt recognition of the important distinction between the Compact Clause and the Commerce Clause. States may legislate in interstate commerce until an actual impact upon federal supremacy occurs. For individual States, the harm of potential impact is insufficiently upsetting to require prior congressional approval. For States acting in concert, however, whether through informal agreement, reciprocal legislation, or formal compact, "potential . . . impact upon federal supremacy" is enough to invoke the requirement of congressional approval.5
58
To this point, my views do not diverge from those of the majority as I understand them. But we do differ markedly in the application of those views to the Multistate Tax Compact.
II
59
Congressional consent to an interstate compact may be expressed in several ways. In the leading case of Virginia v. Tennessee, 148 U.S. 503, 13 S.Ct. 728, 37 L.Ed. 537 (1893), congressional consent to a compact setting a boundary was inferred from years of acquiescence to that line by the Congress in delimiting federal judicial and electoral districts. Id., at 522, 13 S.Ct., at 735. Congressional consent may also be given in advance of the adoption of any specific compacts, by general consent resolutions, as was the case for the highway safety compacts, 72 Stat. 635, and the Crime Control Compact Consent Act of 1934, ch. 406, 48 Stat. 909.
60
Congress does not pass upon a submitted compact in the manner of a court of law deciding a question of constitutionality Rather, the requirement that Congress approve a compact is to obtain its political judgment:6 Is the agreement likely to interfere with federal activity in the area, is it likely to disadvantage other States to an important extent, is it a matter that would better be left untouched by state and federal regulation?7 It comports with the purpose of seeking the political consent Congress affords that such consent may be expressed in ways as informal as tacit recognition8 or prior approval, that Congress be permitted to attach conditions upon its consent,9 and that congressional approval be a continuing requirement.10
61
In the present case, it would not be possible to infer approval from the congressional reaction to the Multistate Tax Compact. Indeed, the history of the Congress and the Compact is a chronicle of jealous attempts of one to close out the efforts of the other.11
62
On the congressional side of this long-lived battle, bills to approve the Compact have been introduced 12 separate times,12 but all have faltered before arriving at a vote. Congress took the first step in the field of interstate tax apportionment with Pub.L. No. 86-272, 73 Stat. 555, passed the same year that this Court's opinion in Northwestern States Portland Cem nt Co. v. Minnesota, 358 U.S. 450, 79 S.Ct. 357, 3 L.Ed.2d 421 (1959), approved state taxation of reasonably identified multistate corporate income. A special subcommittee (the Willis Committee) was established which reported five years later with specific recommendations for federal statutory solution to the interstate allocation problem. In the Multistate Tax Commission's own words:
63
"The origin and history of the Multistate Tax Compact are intimately related and bound up with the history of the states' struggle to save their fiscal and political independence from encroachments of certain federal legislation introduced in [C]ongress during the past three years. These were the Interstate Taxation Acts, better known as the Willis Bills."13
64
A special meeting of the National Association of Tax Administrators was called in January 1966; that gathering was the genesis of the Multistate Tax Compact. Over the course of 11 years, numerous bills have been introduced in the Congress as successors to the original Willis Bills, but none has ever become law.14
65
For its part, the Multistate Tax Commission has made no attempt to disguise its purpose. In its First Annual Report, the Commission spoke proudly of "bottling up the Willis Bill [alternative federal legislation] for an extended period," but warned that "it cannot be said that the threat of coercive, restrictive federal legislation is gone." 1 Multistate Tax Commission Ann.Rep. 10 (1968). In the most recent annual report, the tone has not changed. The Commission lists as one of its "major goals" the desire to "guard against restrictive federal legislation and other federal action which impinges upon the ability of state tax administrators to carry out the laws of their [S]tates effectively." 9 Multistate Tax Commission Ann.Rep. 1 (1976). The same report pledged continued opposition to specific bills introduced in Congress restricting the States' utilization of the unitary-business concept and providing alternatives to the Compact's recommended method of apportioning multistate corporate earnings to the various States.15 Even more importantly, the Commission denounced the tax treaty already signed with Great Britain (though not yet ratified),16 for its prohibition of the unitary-business concept, the practice whereby a State combines for tax purposes the incomes from several related companies belonging to a single parent, even when the business carried on in a particular State is conducted by only one of the related companies. The President has negotiated this treaty in the diplomatic interest of the United States; but acting together through their joint agency, the Multistate Tax Commission, the Compact States are opposing its ratification. Of course, the Compact States have every right, in their own interest, to petition the branches of the Federal Government. Still, it cannot be disputed that the action of over 20 States, speaking through a single, established authority, carries an influence far stronger than would 20 separate voices.
66
A hostile stalemate characterizes the present position of the parties: the Multistate Tax Compact States opposing the Federal Congress and, since the proposed new tax treaty, the Federal Executive as well. No one could view this history and conclude that the Congress has acquiesced in the Multistate Tax Compact.
67
But more is demonstrated by this long dispute underlying the present case: Not only has Congress failed to acquiesce in the Multistate Tax Compact, but both Congress and the Executive have clearly demonstrated that there is a federal interest in the rules for apportioning multistate and multinational income. The Executive cannot constitutionally express his federal sovereign interest in the matter an more unambiguously. He has negotiated a treaty with a foreign power and submitted that treaty to the Senate. As for the Congress, its federal sovereign interest in the topic was early established in Pub.L. No. 86-272. While the following years have produced no new legislation, the activity over the Willis Report, the Willis Bills, the successor bills, and the dozen shelvings of compact ratification bills establish at the very least that the Congress believes a federal interest is involved.17 That a potential impact on federal concerns is at stake is indisputable.
68
It might be argued that Congress could more clearly have expressed its federal interest by passing a statute pre-empting the field, possibly in the form of an alternative apportionment formula. To hold Congress to the necessity of such action, however, accords no force to the Compact Clause independent of the Commerce Clause, as explained above. If the way to show a "potential federal interest" requires an exercise of the actual federal commerce power, then the purposes of the Compact Clause, and the Framers' deep-seated and special fear of agreements between States, would be accorded absolutely no respect.
III
69
Virginia v. Tennessee18 quite clearly holds that not all agreements and compacts must be submitted to the Congress. The majority's phraseology of the test as "potential impact upon federal supremacy" incorporates the Virginia v. Tennessee standard. Nor do I disagree that many interstate agreements are legally effective without congressional consent. "Potential impact upon federal supremacy" requires some demonstration of a federal interest in the matter under consideration, and a threat to that interest. In very few cases, short of a direct conflict, will the record of congressional and executive action demonstrate as clearly as the record in the present case that the Federal Government considers itself to have a valid interest in the subject matter. Examples of compacts over which no federal concern was inferable have already been suggested.19
70
It seems to me, however, that even if a realistic potential impact on federal supremacy failed to materialize at one historic moment, that should not mean that an interstate compact or agreement is forever immune from congressional disapproval on an absolute or conditional basis. Yet the majority's approach appears to be that, because the instant agreement is, in the majority's view, initially without the Clause, it will never require congressional approval. The majority would approve this Compact without congressional ratification purely on the basis of its form: that no power is conferred upon the Multistate Tax Commission that could not be independently exercised by a member State. Such a view pretermits the possibility of requiring congressional approval in the future should circumstances later present even more clearly a potential federal interest, so long as the form of the Compact has not changed. That consequence fails to provide the ongoing congressional oversight that is part of the Compact Clause's protections.20
IV
71
For appellants' many suggestions of extraordinary authority wielded by the Multistate Tax Commission, the majority has but one repeated answer: that each memb r State is free to adopt the procedures in question just as it could as if the Compact did not exist.
72
This cannot be an adequate answer even for the majority, which holds that "[a]greements effected through reciprocal legislation may present opportunities for enhancement of state power at the expense of the federal supremacy similar to the threats inherent in a more formalized 'compact.' " Ante, at 470 (footnotes omitted). Reciprocal legislation is adopted by each State independently, yet derives its force from the knowledge that other States are acting in identical fashion. In recognizing Compact Clause concerns even in reciprocal legislation, the majority correctly lays the premise that the absence of an autonomous authority would not be controlling.
73
So here, that the Compact States act in concerted fashion to foreclose federal law and treaties on apportionment of income, multistate audits, and unitary-business concepts21 tells us at the least that a potential impact on federal supremacy exists. No realistic view of that impact could maintain that it is no greater than if individual States, acting purely spontaneously and without concert, had taken the same steps. It is pure fantasy to suggest that 21 States could conceivably have arrived independently at identical regulations for apportioning income, reciprocal subpoena powers, and identical interstate audits of multinational corporations, in the absence of some agreement among them.
74
Further, it is not clear upon reading the majority's opinion that appellants' suggestions of actual synergistic powers in the Multistate Tax Commission have been adequately answered. The Commission does have some life of its own. Under Art. VIII, providing for interstate audits, the Commission is given authority to offer to conduct audits even if no State has made a request.
75
"If the Commission, on the basis of its experience, has reason to believe that an audit of a particular taxpayer, either at a particular time or on a particular schedule, would be of interest to a number of party States or their subdivisions, it may offer to make the audit or audits, the offer to be contingent on sufficient participation therein as determined by the Commission." Multistate Tax Compact, Art. VIII, § 5.
76
If not for the Commission's acting on its own, in the absence of a suggestion from any State, the audit would not come about, even if the States subsequently approve. That implies some effects can be achieved beyond what the individual States themselves would have achieved, since, by hypothesis, no State would have proposed the audit on its own.
77
Other troubling provisions are Art. III, § 1, requiring that all member States must allow taxpayers to apportion their income in accord with Art. IV (the substance of which is similar to the Uniform Division of Income for Tax Purposes Act); and Art. III, § 2, requiring that all member States must offer a short-form option for small-business income tax.22 If Compact States have no choice in the matter, these sections unquestionably go beyond the mere advisory role in which the majority would cast the Multistate Commission.
78
On its face, the ompact also provides in Art. IX for compulsory arbitration of allocation disputes among the member States at the option of any taxpayer electing to apportion his income in accord with Art. IV. Although Art. IX is not now operative (it requires passage of a regulation by the Commission to revive the arbitration mechanism), it was in effect for two and a half years. This provision binds the member States' participation, even against their will in any particular case. In two final respects, the Compact also differs significantly from reciprocal legislation. The subpoena power which the Compact makes possible (auditors can obtain subpoenas in any one of the States which have adopted Art. VIII of the Compact) is far different from what would be accomplished through reciprocal laws, in that it places an unusual "all-or-nothing" pressure on the non-Compact States. The usual form of reciprocal law is a statute passed by State Y, saying that any other State which accords Y access to its courts for the enforcement of tax obligations likewise will have access to the courts of Y. This Compact says that an outsider State will obtain reciprocal subpoena powers only as part of a package of Art. VIII Compacts States—its own courts must be opened to all these States, and in return it will obtain Compact-wide access for judicial process needed in its own tax enforcement.
79
Lastly, the very creation of the Compact sets it apart from separate state action. The Compact did not become effective in any of the ratifying States until at least seven States had adopted it. Thus, unlike reciprocal legislation, the Compact provided a means by which a State could assure itself that a certain number of other States would go along before committing itself to an apportionment formula.
V
80
One aspect of the Virginia v. Tennessee test for congressional approval of interstate compacts requires specific emphasis. The Virginia v. Tennessee opinion speaks of whether a combination tends "to the increase of political power in the states, which may encroach upon or interfere with the just supremacy of the United States," 148 U.S., at 519, 13 S.Ct., at 734, and later, whether a compact or agreement would "encroach or not upon the full and free exercise of federal authority." Id., at 520, 13 S.Ct., at 735.
81
The majority properly notes that any agreement among the States will increase their power, and focuses on the critical question of whether such an increase will enhance "state power quoad the National Government." Ante, at 477-478. A proper understanding of what would encroach upon federal authority, however, must also incorporate encroachments on the authority and power of non-Compact States.
82
In Rhode Island v. Massachusetts, 12 Pet. 657, 726, 9 L.Ed. 1233 (1838), this Court held that the purpose of requiring the submission to Congress of a compact (in that case, regarding a boundary) between two States was "to guard against the derangement of their federal relations with the other states of the Union, and the federal government; which might be injuriously affected, if the contracting states might act upon their boundaries at their pleasure." See also Florida v. Georgia, 17 How. 478, 494, 15 L.Ed. 181 (1855). There is no want of authority for the conclusion that encroachments upon non-compact States are as seriously to be guarded against as encroachments upon the federal authority,23 nor is that surprising in view of the Federal Government's pre-eminent purpose to protect the rights of one State against another. If the effect of a compact were to put non-Compact States at a serious disadvantage, the federal interest would thereby be affected as well.
83
The majority appears to recognize that allegations of harmful impact on other States is a cognizable challenge to a compact. See ante, at 477-478, 462-463, n. 12. The response the majority opinion provides is by now a familiar one: "Each member State is free to adopt the auditing procedures it thinks best, just as it could if the compact did not exist." Ante, at 477-478. The criticism of this reasoning offered above, in the context of encroachment on federal power, is applicable here as well. Judging by effect, not form, it is obvious that non-Compact States can be placed at a competitive disadvantage by the Multistate Tax Compact.
84
One example is in the attraction of multistate corporations to locate within a certain State's borders. Before the Multistate Tax Compact, "nonbusiness" dividend income was most commonly allocated to the State where a corporation was domiciled.24 Under the Compact's "advisory" regulations, this type of income is apportioned among the several States where the company conducts its business. Hence, a non-Compact State will run the risk of taxing a domiciliary multistate corporation on more than 100% of its nonbusiness income, unless, of course, the State agrees to follow the rule of the Compact. Another way to view the impact on a nonmember State is that if it wished to attract a multistate corporation to become a domiciliary, it might offer not to tax nonbusiness income. But with such income being apportioned by several other States anyway, the lure of the domicile State's exemption is effectively dissipated.
85
None of these results is necessarily "bad." The only conclusion urged here is that the effect on non-Compact States be recognized as sufficiently serious that Congress should be consulted. As the constitutional arbiter of political differences between States, the Congress is the proper body to evaluate the extent of harm being imposed on non-Compact States, and to impose ameliorative restrictions as might be necessary.
86
The Compact Clause is an important, intended safeguard within our constitutional structure. It is functionally a conciliatory rather than a prohibitive clause. All it requires is that Congress review interstate agreements that are capable of affecting federal or other States' rights. In the Court's decision today, a highly complex multistate compact, detailed in structure and pervasive in its effect on the important area of interstate and international business taxation, has been legitimized without the consent of Congress. If the Multistate Tax Compact is not a compact within the meaning of Art. I, § 10, then I fear there is very little life remaining in that section of our Constitution.
87
I respectfully dissent.
1
Those States were: Alaska, Alaska Stat.Ann. § 43.19.010 (1977); Arkansas, Ark.Stat.Ann. § 84-4101 (Supp.1977); Colorado, Colo.Rev.Stat. § 24-60-1301 (1973); Florida, Fla.Stat. § 213.15 (1971); Hawaii, Haw.Rev.Stat. § 255-1 (Supp.1976); Idaho, Idaho Code § 63-3701 (1976); Illinois, Ill.Rev.Stat., ch. 120, § 871 (1973); Indiana, Ind.Code § 6-8-9-101 (1972); Kansas, Kan.Stat.Ann. § 79-4301 (1969); Michigan, Mich.Comp.Laws § 205.581 (1970); Missouri, Mo.Rev.Stat. § 32.200 (1969); Montana, Mont.Rev.Codes Ann. § 84-6701 (Supp.1977); Nebraska, Neb.Rev.Stat. § 77-2901 (1943); Nevada, Nev.Rev.Stat. § 376.010 (1973); New Mexico, N.M.Stat.Ann. § 72-15A-37 (Supp.1975); North Dakota, N.D.Cent.Code § 57-59-01 (1972); Oregon, Ore.Rev.Stat. § 305.655 (1977); Texas, Tex.Rev.Civ.Stat.Ann., Art. 7359a (Vernon Supp.1977); Utah, Utah Code Ann. § 59-22-1 (195 and Supp.1977); Washington, Wash.Rev.Code § 82.56.010 (1974); Wyoming, Wyo.Stat. § 39-376 (Supp.1975).
Since the suit began, four States—Florida, Illinois, Indiana, and Wyoming—have withdrawn from the Compact, see 1976 Fla.Laws, ch. 76-149, § 1; 1975 Ill.Laws, No. 79-639, § 1; 1977 Ind.Acts, No. 90; 1977 Wyo.Sess.Laws, ch. 44, § 1. Two others California and South Dakota—have joined it, see Cal.Rev. & Tax.Code Ann. § 38001 (West Supp.1977); S.D.Comp.Laws Ann. § 10-54-1 (Supp.1977), for a current total of 19 members.
2
Title I of Pub.L. 86-272, codified as 15 U.S.C. §§ 381-384, essentially forbids the imposition of a tax on a foreign corporation's net income derived from activities within a State, if those activities are limited to the solicitation of orders that are approved, filled, and shipped from a point outside the State.
3
H.R.Rep.No.1480, 88th Cong., 2d Sess. (1964); H.R.Rep.No.565, 89th Cong., 1st Sess. (1965); H.R.Rep.No.952, 89th Cong., 1st Sess. (1965).
4
There have been several unsuccessful attempts. H.R. 11798, 89th Cong., 1st Sess. (1965); H.R. 16491, 89th Cong., 2d Sess. (1966); S. 317, 92d Cong., 1st Sess. (1971); H.R. 1538, 92d Cong., 1st Sess. (1971); S. 1245, 93d Cong., 1st Sess. (1973); H.R. 977, 93d Cong., 1st Sess. (1973); S. 2080, 94th Cong., 1st Sess. (1975); H.R. 9, 94th Cong., 1st Sess. (1975).
5
The model Act proposed as the Multistate Tax Compact, with minor exceptions, has been adopted by each member State.
6
Article II consists of definitions. Article III permits small taxpayers—those whose only activities within the jurisdiction consist of sales totaling less than $100,000—to elect to pay a tax on gross sales in lieu of a levy on net income. The Uniform Division of Income for Tax Purposes Act, contained in Art. IV, allows multistate taxpayers to apportion and allocate their income under formulae and rules set forth in the Compact or by any other method available under state law. It was approved by the National Conference of Commissioners on Uniform State Laws and the American Bar Association in 1957. Article V deals with sales and use taxes. Article IX provides for arbitration of disputes, but is not in effect. Article XI disclaims any attempt to affect the power of member States to fix rates of taxation or limit the jurisdiction of any court. Finally, Art. XII provides for liberal construction and severability.
7
The action was filed by United States Steel Corp., Standard Brands Inc., General Mills, Inc., and the Procter & Gamble Distributing Co. On February 5, 1974, the court below permitted Bethlehem Steel Corp., Bristol Myers Co., Eltra Corp., Goodyear Tire & Rubber Co., Green Giant Co., International Business Machines Corp., International Harvester Co., International Paper Co., International Telephone & Telegraph Corp., McGraw-Hill, Inc., NL Industries, Inc., Union Carbide Corp., and Xerox Corp. to intervene as plaintiffs. The court below ordered that the suit proceed as a class action. International Business Machines and Xerox withdrew as intervenor plaintiffs before decision.
8
Congressional consent has been sought, but never obtained. See S. 3892, 89th Cong., 2d Sess. (1966); S. 883, 90th Cong., 1st Sess. (1967); S. 1551, 90th Cong., 1st Sess. (1967); H.R. 9476, 90th Cong., 1st Sess. (1967); H.R. 13682, 90th Cong., 1st Sess. (1967); S. 1198, 91st Cong., 1st Sess. (1969); H.R. 6246, 91st Cong., 1st Sess. (1969); H.R. 9873, 91st Cong., 1st Sess. (1969); S. 1883, 92d Cong., 1st Sess. (1971); H.R. 6160, 92d Cong., 1st Sess. ( 971); S. 3333, 92d Cong., 2d Sess. (1972); S. 2092, 93d Cong., 1st Sess. (1973).
9
E. g., Wharton v. Wise, 153 U.S. 155, 168-170, 14 S.Ct. 783, 786-787, 38 L.Ed. 669 (1894); North Carolina v. Tennessee, 235 U.S. 1, 16, 35 S.Ct. 8, 13, 59 L.Ed. 97 (1914).
10
The history of interstate agreements under the Articles of Confederation suggests the same distinction between "treaties, alliances, and confederations" on the one hand, and "agreements and compacts" on the other. Article VI provided in part as follows:
"No State without the consent of the United States, in Congress assembled, shall send any embassy to, or receive any embassy from, or enter into any confe[r]ence, agreement, alliance or treaty, with any king, prince or state . . . .
"No two or more States shall enter into any treaty, confederation, or alliance whatever, between them, without the consent of the United States, in Congress assembled, specifying accurately the purposes for which the same is to be entered into, and how long it shall continue."
Congressional consent clearly was required before a State could enter into an "agreement" with a foreign state or power or before two or more States could enter into "treaties, alliances, or confederations." Apparently, however, consent was not required for mere "agreements" between States. "The articles inhibiting any treaty, confederation, or alliance between the States without the consent of congress . . . were not designed to prevent arrangements between adjoining states to facilitate the free intercourse of their citizens, or remove barriers to their peace and prosperity . . . ." Wharton v. Wise, supra, 153 U.S., at 167, 14 S.Ct., at 786.
For example, the Virginia-Maryland Compact of 1785, which governed navigation and fishing rights in the Potomac River, the Pocomoke River, and the Chesapeake Bay, did not receive congressional approval, yet no question concerning its validity under Art. VI ever arose. As the Court noted in Wharton v. Wise, in reference to the 1785 Compact, "looking at the object evidently intended by the prohibition of the articles of confederation, we are clear they were not directed against agreements of the character expressed by the compact under consideration. Its execution could in no respect encroach upon or weaken the general authority of congress under those articles. Various compacts were entered into between Pennsylvania and New Jersey and between Pennsylvania and Virginia, during the confederation, in reference to boundaries between them, and to rights of fishery in their waters, and to titles to land in their respective states, without the consent of congress, which indicated that such consent was not deemed essential to their validity." 153 U.S., at 170-171, 14 S.Ct., at 787.
11
On July 25, 1787, the Convention created a Committee of Detail composed of John Rutledge, James Wilson, Edmund Randolph, Nathaniel Gorham, and Oliver Elsworth. The Convention then adjourned until August 6 to allow the Committee to prepare a draft. 2 M. Farrand, Records of the Federal Convention of 1787, pp. 97, 128 (1911). Section 10 of the Committee's first draft provided in part: "No State shall enter into any Treaty, Alliance or Confederation with any foreign Power nor witht. Const. of U.S. into any agreemt. or compact with another State or Power . . . ." Id., at 169 (abbreviations in original). On August 6, the Committee submitted a draft to the Convention containing the following articles:
"XII No State shall . . . enter into any treaty, alliance, or confederation . . ..
"XIII No State, without the consent of the Legislature of the United States, shall . . . enter into any agreement or compact with another State, or with any foreign power . . . ." Id., at 187.
The Committee of Style, created to revise the draft, reported on September 12, id., at 590, but nothing appears to have been said about Art. I, § 10, which contained the treaty and compact language incorporated into the Constitution as approved on September 17. The records of the state ratification conventions also shed no light. Publius declared only that the prohibition against treaties, alliances, and confederation, "for reasons which need no explanation, is copied into the new Constitution," while the portion of Art. I, § 10, containing the Compact Clause fel "within reasonings which are either so obvious, or have been so fully developed, that they may be passed over without remark." The Federalist, No. 44, pp. 299, 302 (J. Cooke ed. 1961) (J. Madison).
12
Some commentators have theorized that the Framers understood those terms in relation to the precisely defined categories, fashionable in the contemporary literature of international law, of accords between sovereigns. See, e. g., Engdahl, Characterization of Interstate Arrangements: When Is a Compact Not a Compact?, 64 Mich.L.Rev. 63 (1965); Weinfeld, What Did the Framers of the Federal Constitution Mean by "Agreements or Compacts"?, 3 U.Chi.L.Rev. 453 (1936). The international jurist most widely cited in the first 50 years after the Revolution was Emmerich de Vattel. 1 J. Kent, Commentaries on American Law 18 (1826). In 1775, Benjamin Franklin acknowledged receipt of three copies of a new edition, in French, of Vattel's Law of Nations and remarked that the book "has been continually in the hands of the members of our Congress now sitting . . . ." 2 F. Wharton, United States Revolutionary Diplomatic Correspondence 64 (1889), cited in Weinfeld, supra, at 458.
Vattel differentiated between "treaties," which were made either for perpetuity or for a considerable period, and "agreements, conventions, and pactions," which "are perfected in their execution once for all." E. Vattel, Law of Nations 192 (J. Chitty ed. 1883). Unlike a "treaty" or "alliance," an "agreement" or "paction" was perfected upon execution:
"[T]hose compacts, which are accomplished once for all, and not by successive acts,—are no sooner executed then they are completed and perfected. If they are valid, they have in their own nature a perpetual and irrevocable effect . . . ." Id., at 208.
This distinction between supposedly ongoing accords, such as military alliances, and instantaneously executed, though perpetually effective agreements, such as boundary settlements, may have informed the drafting in Art. I, § 10. The Framers clearly recognized the necessity for amicable resolution of boundary disputes and related grievances. See Virginia v. West Virginia, 246 U.S. 565, 597-600, 38 S.Ct. 400, 404-405, 59 L.Ed. 1272 (1918); Frankfurter & Landis, The Compact Clause of the Constitution—A Study in Interstate Adjustments, 34 Yale L.J. 685, 692-695 (1925). Interstate agreements were a method with which they were familiar. Id., at 694, 732-734. Although these dispositive compacts affected the interests of the States involved, they did not represent the continuing threat to the other States embodied in a "treaty of alliance," to use Vattel's words. E. Vattel, supra, at 192.
13
St. George Tucker, who along with Madison and Edmund Randolph was a Virginia commissioner to the Annapolis Convention of 1786, drew a distinction between "treaties, alliances, and confederations" on the one hand, and "agreements or compacts" on the other:
"The former relate ordinarily to subjects of great national magnitude and importance, and are often perpetual, or made for a considerable period of time; the power of making these is altogether prohibited to the individual states; but agreements, or compacts, concerning transitory or local affairs, or such as cannot possibly affect any other interest but that of the parties, may still be entered into by the respective states, with the consent of congress." 1 W. Blackstone, Commentaries, Appendix 310 (S. Tucker ed. 1803) (footnotes omitted).
Tucker cited Vattel as authority for his interpretation of Art. I, § 10.
14
Mr. Justice Story found Tucker's view, see n. 13, supra, unilluminating:
"What precise distinction is here intended to be taken between treaties, and agreements, and compacts, is nowhere explained, and has never as yet been subjected to any exact judicial or other examination. A learned commentator, however, supposes, that the former ordinarily relate to subjects of great national magnitude and importance, and are often perpetual, or for a great length of time; but that the latter relate to transitory or local concerns, or such as cannot possibly affect any other interests but those of the parties [citing Tucker]. But this is at best a very loose and unsatisfactory exposition, leaving the whole matter open to the most latitudinarian construction. What are subjects of great national magnitude and importance? Why may not a compact or agreement between States be perpetual? If it may not, what shall be its duration? Are not treaties often made for short periods, and upon questions of local interest, and for temporary objects?" 2 J. Story, Commentaries on the Constitution of the United States § 1402, p. 263 (T. Cooley ed. 1873) (footnotes omitted).
In Green v. Biddle, 8 Wheat. 1, 5 L.Ed. 547 (1823), the Court, including Mr. Justice Story, had been presented with a question of the validity of the Virginia-Kentucky Compact of 1789, to which Congress had never expressly assented. Henry Clay argued to the Court that the Compact Clause extended "to all agreements or compacts, no matter what is the subject of them. It is immaterial, therefore, whether that subject be harmless or dangerous to the Union." Id., at 39. The Court did not address that issue, however, for it held that Congress' consent could be implied. Id., at 87.
15
Notwithstanding Mr. Justice Catron's unease, Mr. Chief Justice Taney's opinion in Jennison is not inconsistent with the rule of Virginia v. Tennessee. At some length, Taney emphasized that the State was exercising the power to extradite persons sought for crimes in other countries, which was part of the exclusive foreign relations power expressly reserved to the Federal Government. He concluded, therefore, that the State's agreement would be constitutional only if made under the supervision of the United States.
After the Jennison case had been disposed of by the Court, the Vermont court discharged Holmes. It concluded from an examination of the five separate opinions in the case that a majority of this Court believed the Governor had no power to deliver Holmes to Canadian authorities. Holmes v. Jennison, 14 Pet. 540, 597, 10 L.Ed. 579 (1840) (Reporter's Note).
16
See generally, Abel, Interstate Cooperation as a Child, 32 Iowa L.Rev. 203 (1947); Engdahl, supra, n. 12, at 86.
17
The court failed to mention that Story described the terms of the Treaty Clause, not the Compact Clause, as political. It was the political character of treaties, in his view, that led to their absolute prohibition. Story theorized that the Compact Clause dealt with "private rights of sovereignty," see supra, at 464, but that congressional consent was required to prevent possible abuses.
18
Taking a similar view of the Compact Clause, and also ignoring Holmes v. Jennison, were Dover v. Portsmouth Bridge, 17 N.H. 200 (1845), and Fisher v. Steele, 39 La.Ann. 447, 1 So. 882 (1887). Holmes v. Jennison apparently was not cited in a case relating to the Compact Clause until 1917, 14 years after Mr. Justice Field formulated the rule of Virginia v. Tennessee. See McHenry County v. Brady, 37 N.D. 59, 70, 163 N.W. 540, 544 (1917).
Mr. Chief Justice Taney may have shared the Georgia court's view of compacts which, unlike the "agreement" in Holmes v. Jennison, did not implicate the foreign relations power of the United States. A year after Union Branch R. Co. was decided, he suggested in dictum that the Compact Clause is aimed at an accord that is "in its nature, a political question, to be settled by compact made by the political departments of the government." Florida v. Georgia, 17 How. 478, 494, 15 L.Ed. 181 (1855). The purpose of the Clause, he declared, is "to guard the rights and interests of the other States, and to prevent any compact or agreement between any two States, which might affect injuriously the interest of the others." A similar concern with agreements of a political nature may be found in a dictum of Mr. Chief Justice Marshall:
"It is worthy of remark, too, that these inhibitions [of Art. I, § 10]
generally restrain state legislation on subjects entrusted to the general government, or in which the people of all the states feel an interest.
"A state is forbidden to enter into any treaty, alliance or confederation. If these compacts are with foreign nations, they interfere with the treaty making power which is conferred entirely on the general government; if with each other, for political purposes, they can scarcely fail to interfere with the general purpose and intent of the constitution." Barron v. Baltimore, 7 Pet. 243, 249, 8 L.Ed. 672 (1833).
19
In support of this conclusion, Mr. Justice Field misread Story's Commentaries in precisely the same way as the Georgia court did in Union Branch R. Co. See n. 17, supra.
20
State courts repeatedly have applied the test in confirming the validity of a variety of interstate agreements. E. g., McHenry County v. Brady, supra, Dixie Wholesale Grocery, Inc. v. Martin, 278 Ky. 705, 129 S.W.2d 181, cert. denied, 308 U.S. 609, 60 S.Ct. 173, 84 L.Ed. 509 (1939); Ham v. Maine-New Hampshire Interstate Bridge Authority, 92 N.H. 268, 30 A.2d 1 (1943); Roberts Tobacco Co. v. Department of Revenue, 322 Mich. 519, 34 N.W.2d 54 (1948); Bode v. Barrett, 412 Ill. 204, 106 N.E.2d 521 (1952), aff'd, 344 U.S. 583, 73 S.Ct. 468, 97 L.Ed. 567 (1953); Landes v. Landes, 1 N.Y.2d 358, 153 N.Y.S.2d 14, 135 N.E.2d 562, appeal dismissed, 352 U.S. 948, 77 S.Ct. 325, 1 L.Ed.2d 241 (1956); Ivey v. Ayers, 301 S.W.2d 790 (Mo.1957); State v. Doe, 149 Conn. 216, 178 A.2d 271 (1962); General Expressways, Inc. v. Iowa Reciprocity Board, 163 N.W.2d 413 (Iowa 1968); Kinnear v. Hertz Corp., 86 Wash.2d 407, 545 P.2d 1186 (1976). See also Henderson v. Delaware River Joint Toll Bridge Comm'n, 362 Pa. 475, 66 A.2d 843 (1949); Opinion of the Justices, 344 Mass. 770, 184 N.E.2d 353 (1962); State v. Ford, 213 Tenn. 582, 376 S.W.2d 486 (1964); Dresden School Dist. v. Hanover School Dist., 105 N.H. 286, 198 A.2d 656 (1964); Colgate-Palmolive Co. v. Dorgan, 225 N.W.2d 278 (N.D.1974).
21
One commentator has noted the relevance of reciprocal-legislation cases, particularly those involving reciprocal tax statutes, to Compact Clause adjudication:
"Compact clause adjudication focuses on a federalism formula suggested in an 1893 Supreme Court case [Virginia v. Tennessee ]: congressional consent is required to validate only those compacts infringing upon 'the political power or influence' of particular states and 'encroaching . . . upon the full and free exercise of Federal authority.' Reciprocal tax statutes, which provide the paradigm instance of arrangements not deemed to require the consent of Congress, illustrate this principle in that they neither project a new presence onto the federal system nor alter any state's basic sphere of authority." Tribe, Intergovernmental Immunities in Litigation, Taxation, and Regulation: Separation of Powers Issues in Controversies about Federalism, 89 Harv.L.Rev. 682, 712 (1976) (footnotes omitted).
22
See also Frankfurter & Landis, supra, n. 12, at 690-691.
23
Although there is language in West Virginia ex rel. Dyer v. Sims, 341 U.S. 22, 27, 71 S.Ct. 557, 560, 95 L.Ed. 713 (1951), that could be read to suggest that the formal nature of a "compact" distinguishes it from reciprocal legislation, that language, properly understood, does not undercut our analysis. Referring in dictum to the compact at issue in Dyer, Mr. Justice Frankfurter observed that congressional consent had been required, "as for all compacts." The word "compact" in that phrase must be understood as a term of art, meaning those agreements falling within the scope of the Compact Clause. Cf. Frankfurter & Landis, supra, n. 12, at 690, and n. 22a. Otherwise, the word "agreement" is read out of Art. I, § 10, cl. 3, entirely.
24
Appellants describe various Compacts, including the Interstate Compact to Conserve Oil and Gas Act of 1935, see 49 Stat. 939, and the Interstate Compact to Conserve Oil and Gas (Extension) of 1976, 90 Stat. 2365, and attempt to show that they are similar to the Compact before us. They then point out that the Compacts they describe received the consent of Congress and argue from this fact that the Multistate Tax Compact also must receive congressional consent in order to be va id. These other Compacts are not before us. We have no occasion to decide whether congressional consent was necessary to their constitutional operation, nor have we any reason to compare those Compacts to the one before us. It suffices to test the Multistate Tax Compact under the rule of Virginia v. Tennessee.
25
The "unitary business" technique involves calculating a corporate taxpayer's net income on the basis of all phases of the operation of a single enterprise (e. g., production of components, assembly, packing, distribution, sales), even if located outside the jurisdiction. The portion of that income attributable to activities within the taxing State is then determined by means of an apportionment formula. See, e. g., Underwood Typewriter Co. v. Chamberlain, 254 U.S. 113, 41 S.Ct. 45, 65 L.Ed. 165 (1920). "Combination of income" involves applyi g the unitary business concept to separately incorporated entities engaged in a single enterprise. See Edison California Stores, Inc. v. McColgan, 30 Cal.2d 472, 183 P.2d 16 (1947).
26
Individual States are free to employ the unitary-business standard. Underwood Typewriter Co. v. Chamberlain, supra; accord, Bass, Ratcliff & Gretton, Ltd. v. State Tax Comm'n, 266 U.S. 271, 45 S.Ct. 82, 69 L.Ed. 282 (1924). Nor do appellants claim that individual States could not employ the combination method of determining taxpayer income. Cf. Edison California Stores, supra.
27
Taxable income deemed apportionable is that which is not considered to have its source totally within one State. It is distributed by means of an apportionment formula among the States in which the multistate business operates. Taxable income deemed allocable is that which is considered as having its source within one State and is assigned entirely to that State for tax purposes. See generally Sharpe, State Taxation of Interstate Businesses and the Multistate Tax Compact: The Search for a Delicate Uniformity, 11 Colum.J. Law & Soc.Prob. 231, 233-239 (1975). "Business income" is defined generally as income arising from activities in the regular course of the taxpayer's business. See, e. g., Uniform Division of Income for Tax Purposes Act § 1(a). Definitions of income arising in the regular course of business vary from one State to another. For example, rents and royalties may be considered business income in one State, but not in another. See generally Sharpe, supra, at 233-239.
28
For example, appellants raise no challenge to the many reciprocal statutes providing for recovery of taxes owing to one State in the courts of another. A typical statute is Tennessee's: "Any state of the United States or the political subdivisions thereof shall have the right to sue in the courts of Tennessee to recover any tax which may be owing to it when the like right is accorded to the state of Tennessee and its political subdivisions by such state." Tenn. Code Ann. § 20-1709 (1955). See generally Leflar, Out-of-State Collection of State and Local Taxes, 29 Vand.L.Rev. 443 (1976).
29
Tax Convention with the United Kingdom of Great Britain and Northern Ireland, 94th Cong., 2d Sess. (1976) (as published in Message from President submitting Convention); Protocol to the 1975 Tax Convention with the United Kingdom of Great Britain and Northern Ireland, 94th Cong., 2d Sess. (1976) (as published in Message from President submitting Protocal); Second Protocol to the 1975 Tax Convention with the United Kingdom of Great Britain and Northern Ireland, 95th Cong., 1st Sess. (1977) (as published in Message from President submitting Second Protocol). Article 9, ¶ 4, of the treaty, which is currently pending before the Senate, would prohibit the combination of the income of any enterprise doing business in the United States with the income of related enterprises located in the United Kingdom.
30
Corrigan, Interstate Corporate Income Taxation—Recent Revolutions and a Modern Response, 9 Vand.L.Rev. 423, 441-442 (1976).
31
Appellants do not specify in their brief which Clause of the Fourteenth Amendment is violated. Our conclusion makes it unnecessary to consider each one.
32
Appellants conceded this point in the hearing before the three-judge court. Tr. of Hearing, Feb. 3, 1976, pp. 16-18. Cf. State Tax Comm'n v. Union Carbide Corp., 386 F.Supp. 250 (D.C.Idaho 1974).
33
The dissent appears to confuse potential impact on "federal interests" with threats to "federal supremacy." It dwells at some length on the unsuccessful efforts to obtain express congressional approval of this Compact, relying on the introduction of bills that nev r reached the floor of either House. This history of congressional inaction is viewed as "demonstrating . . . a federal interest in the rules for apportioning multistate and
multinational income," and as showing "a potential impact on federal concerns." Post, at 488, 489. That there is a federal interest no one denies.
The dissent's focus on the existence of federal concerns misreads Virginia v. Tennessee and New Hampshire v. Maine. The relevant inquiry under those decisions is whether a compact tends to increase the political power of the States in a way that "may encroach upon or interfere with the just supremacy of the United States." Virginia v. Tennessee, 148 U.S., at 519, 13 S.Ct., at 734. Absent a threat of encroachment or interference through enhanced state power, the existence of a federal interest is irrelevant. Indeed, every state cooperative action touching interstate or foreign commerce implicates some federal interest. Were that the test under the Compact Clause, virtually all interstate agreements and reciprocal legislation would require congressional approval.
In this case, the Multistate Tax Compact is concerned with a number of state activities that affect interstate and foreign commerce. But as we have indicated at some length in this opinion, the terms of the Compact do not enhance the power of the member States to affect federal supremacy in those areas.
The dissent appears to argue that the political influence of the member States is enhanced by this Compact, making it more difficult—in terms of the political process—to enact pre-emptive legislation. We may assume that there is strength in numbers and organization. But enhanced capacity to lobby within the federal legislative process falls far short of threatened "encroach[ment] upon or interfer[ence] with the just supremacy of the United States." Federal power in the relevant areas remains plenary; no action authorized by the Constitution is "foreclosed," see post, at 491, to the Federal Government acting through Congress or the treaty-making power.
The dissent also offers several aspects of the Compact that are thought to confer "synergistic" powers upon the member States. Post. at 491-493. We perceive no threat to federal supremacy in any of those provisions. See, e. g., Virginia v. Tennessee, supra, at 520, 13 S.Ct., at 734.
1
"The Congress shall have Power . . . To regulate Commerce with foreign Nations, and among the several States . . . ." U.S. Const., Art. I, § 8.
2
Title 15 U.S.C. §§ 381-384, passed in 1959 as Pub.L. No. 86-272, 73 Stat. 555, limits the jurisdictional bases open to States whereby taxation authority may be exerted. More comprehensive federal regulation of this area has often been proposed; see ante, at 456 n. 4.
3
Under the Articles of Confederation, dealings of the States with foreign governments and among themselves were separately treated. Article VI of the Articles of Confederation provided:
"§ 1. No State, without the Consent of the United States in Congress assembled, shall send any embassy to, or receive any embassy from, or enter into any confe[r]ence, agreement, alliance, or treaty, with any king, prince or State . . . ."
Thereafter, in that same Article, it was provided:
"§ 2. No two or more States shall enter into any treaty, confederation, or alliance whatever, between them, without the consent of the United States, in Congress assembled, specifying accurately the purposes for which the same is to be entered into, and how long it shall continue."
There was thus no requirement that mere "agreements" between States be subjected to the approval of Congress. That the framers of the Articles recognized a distinction between treaties, alliances, and confederations on the one hand and agreements on the other is demonstrated by the differing language in the two paragraphs above quoted, taken from the same Article.
David Engdahl, in Characterization of Interstate Arrangements: When is a Compact not a Compact?, 64 Mich.L.Rev. 63, 81 (1965), has suggested a perceptive rationale for this difference in treatment. Article IX, § 2, of the Articles of Confederation provided:
"The United States, in Congress assembled, shall also be the last resort on appeal in all disputes and differences now subsisting, or that her after may arise between two or more States concerning boundary, jurisdiction, or any other cause whatever . . .,"
And it specified an elaborate system by which the Congress would constitute a court for the resolution of interstate disputes. Hence, if there were a disagreement over a compact that had been reached between two or more States, it could be adjudicated amicably before the Congress without risk of disrupting the Union. Treaties with foreign states, on the other hand, were much more dangerous and could embroil a State in serious obligations and even war. Of almost the same level of seriousness were alliances between the States, of potential long duration and obliging one State to treat two sister States in different fashion. For these reasons, prior approval by the Congress was required.
As Madison's commentary quoted in the text indicates, there was dissatisfaction with the way in which the Articles of Confederation provided for interstate compacts. The Constitution adopted an absolute prohibition against treaties, alliances, or confederations by the States; and imposed the requirement of congressional approval for "any Agreement or Compact with another State, or with a foreign Power." U.S.Const., Art. I, § 10.
4
See infra, at 493-496.
5
The frequent circumstance of potential impact would make that standard unworkable in the Commerce Clause context since the result is pre-emption of state effort; but where the result is merely the requirement that Congress be consulted about the State's effort, as is the case with the Compact Clause, the application of that standard is not nearly so obstructive.
6
See n. 3, supra.
7
The pioneer article in the compact literature, Frankfurter & Landis, The Compact Clause of the Constitution—A Study in Interstate Adjustments, 34 Yale L.J. 685 (1925), recognized the preferability of compacts to litigation in light of the political factors that could be balanced in the process of submitting and approving a compact. See id., at 696, 706-707. This Court has also observed the peculiar amenability of some problems to settlement by compact rather than litigation. See Colorado v. Kansas, 320 U.S. 383, 392, 64 S.Ct. 176, 180, 88 L.Ed. 116 (1943). See also F. Zimmermann & M. Wendell, The Interstate Compact Since 1925, pp. 102-103 (1951).
8
A statute-of-limitations type of approach to the necessary duration of congressional silence before consent may be inferred has been suggested by one commentator. Note, The Constitutionality of the Multistate Tax Compact, 29 Vand.L.Rev. 453, 460 (1976). The National Association of Attorneys General has also declared its support for the use of informal procedures. F. Zimmermann & M. Wendell, The Law and Use of Interstate Compacts 25 (1961).
9
In West Virginia ex rel. Dyer v. Sims, 341 U.S. 22, 27, 71 S.Ct. 557, 560, 95 L.Ed. 713 (1951), this Court commented favorably on the provisions of the Compact involved which allowed continuing participation by the Federal Government through the President's power to designate members of the supervisory commission. The Port of New York Authority Compacts of 1921 and 1922 were among the first to provide for direct continuing supervisory authority by Congress. See Celler, Congress, Compacts, and Interstate Authorities, 26 Law & Contemp.Prob. 682, 688 (1961) (hereinafter Celler). It has been suggested that the imposition of conditions and the continuing nature of Congress' supervision are perceived as drawbacks by compacting States, and have led to a hesitancy to submit interstate agreements to Congress. See Note, supra, n. 8, at 461.
10
This Court has held that Congress must possess the continuing power to reconsider terms approved in compacts, lest "[C]ongress and two States . . . possess the power to modify and alter the [C]onstitution itself." Pennsylvania v. Wheeling & Belmont Bridge Co., 18 How. 421, 433, 15 L.Ed. 435 (1856). See also Celler 685, and authorities cited therein.
11
An excellent summary of the several battles in this war is recounted in Hellerstein, State Taxation Under the Commerce Clause: An Historical Perspective, 29 Vand.L.Rev. 335, 339-342 (1976). See also Sharpe, State Taxation of Interstate Businesses and the Multistate Tax Compact: The Search for a Delicate Uniformity, 11 Colum. J. L. & Soc.Prob. 231, 240-244 (1975) (hereinafter Sharpe).
12
See ante, at 458 n. 8.
13
1 Multistate Tax Commission Ann.Rep. 1 (1968).
14
See ante, at 456 n. 4.
15
See also 7 Multistate Tax Commission Ann.Rep. 3 (1974).
16
See ante, at 476 n. 29.
17
For contrasting examples, where Congress perceived no federal interest, see Zimmermann & Wendell, supra, n. 8, at 21.
18
See also Wharton v. Wise, 153 U.S. 155, 14 S.Ct. 783, 38 L.Ed. 669 (1894), applying the Virginia v. Tennessee dicta.
19
See ante, at 471-472, n. 24 (discussion of Interstate Compact to Conserve Oil and Gas).
20
See n. 10, supra. Frankfurter and Landis found great value in interstate compacts because of their "[c]ontinuous and creative administration." See Frankfurter & Landis, supra, n. 7, at 707. By excluding Congress from the administration of the Multistate Tax Compact, the majority opinion restricts this facet of the Compact's attractiveness.
21
For a detailed analysis of the complex taxation issues underlying each of these terms, see Carlson, State Taxation of Corporate Income from Foreign Sources, Department of Treasury Tax Policy Research Study Number Three, Essays in International Taxation: 1976, pp. 231, 235-252. For a thorough treatment of the income-allocation problem in the multinational setting, see Note, Multinational Corporations and Income Allocation Under Section 482 of the Internal Revenue Code, 89 Harv.L.Rev. 1202 (1976).
22
There is some question as to whether this Article is as mandatory as its language suggests. Several States in the Compact do not provide the option, and several others have not adopted the requisite rates to accompany the option. See Sharpe 245 n. 55. However, most of the member States have complied.
23
See, e. g., United States v. Tobin, 195 F.Supp. 588, 606 (D.C.1961); Tribe, Intergovernmental Immunities in Litigation, Taxation, and Regulation: Separation of Powers Issues in Controversies About Federalism, 89 Hav.L.Rev. 682, 712 (1976) Sharpe 265-272 (specifically observing state complaints about the Multistate Tax Compact); Zimmermann & Wendell, supra, n. 8, at 23; Celler 684 (purpose of Compact Clause " 'to prevent undue injury to the interests of noncompacting states,' " quoting United States v. Tobin, supra ); and Frankfurter & Landis, supra, n. 7, at 694-695. The Frankfurter and Landis treatment is perhaps the clearest expression of how the protection of federal and noncompact state interests blend in the rationale for the Compact Clause:
"But the Constitution plainly had two very practical objectives in view in conditioning agreement by States upon consent of Congress. For only Congress is the appropriate organ for determining what arrangements between States might fall within the prohibited class of 'Treaty, Alliance, or Confederation,' and what arrangements come within the permissive class of 'Agreement or Compact.' But even the permissive agreements may affect the interests of States other than those parties to the agreement: the national, and not merely a regional, interest may be involved. Therefore, Congress must exercise national supervision through its power to grant or withhold consent, or to grant it under appropriate conditions." Ibid.
24
See Sharpe 269.
| 910
|
434 U.S. 497
98 S.Ct. 824
54 L.Ed.2d 717
ARIZONA, Richard Boykin, Sheriff, Pima County, Petitioner,v.George WASHINGTON, Jr.
No. 76-1168.
Argued Oct. 31, 1977.
Decided Feb. 21, 1978.
Syllabus
After respondent was found guilty of murder, the Arizona trial court granted a new trial because the prosecution had withheld exculpatory evidence from the defense. At the beginning of the new trial, the trial judge, after extended argument, granted the prosecutor's motion for a mistrial predicated on improper and prejudicial comment during defense counsel's opening statement that evidence had been hidden from respondent at the first trial, but the judge did not expressly find that there was "manifest necessity" for a mistrial or expressly state that he had considered alternative solutions. The Arizona Supreme Court refused to review the mistrial ruling, and respondent sought a writ of habeas corpus in Federal District Court. While agreeing that defense counsel's opening statement was improper, that court held that respondent could not be placed in further jeopardy and granted the writ because the state trial judge had failed to find "manifest necessity" for a mistrial. The Court of Appeals affirmed. Held:
1. Although the extent of the possible juror bias cannot be measured and some trial judges might have proceeded with the trial after giving the jury appropriate cautionary instructions, nevertheless the overriding interest in the evenhanded administration of justice requires that the highest degree of respect be accorded to the trial judge's decision to declare a mistrial based on his assessment of the prejudicial impact of defense counsel's opening statement. Pp. 503-514.
2. The record supports the conclusion that the trial judge exercised "sound discretion" in declaring a mistrial, it appearing that he acted responsibly and deliberately and accorded careful consideration to respondent's interest in having the trial concluded in a single proceeding, and therefore the mistrial order is supported by the "high degree" of necessity required in a case of this kind. Pp. 514-516.
3. Since the record provides sufficient justification for the trial judge's mistrial ruling, that ruling is not subject to collateral attack in a federal court simply because the judge failed to make an explicit finding of "manifest necessity" for a mistrial that would avoid a valid double jeopardy plea or to articulate on the record all the factors that informed the deliberate exercise of his discretion. Pp. 516-517.
546 F.2d 829, reversed.
Stephen D. Neely, Tucson, Ariz., for petitioner.
Ed P. Bolding, Tucson, Ariz., for respondent.
Mr. Justice STEVENS delivered the opinion of the Court.
1
An Arizona trial judge granted the prosecutor's motion for a mistrial predicated on improper and prejudicial comment during defense counsel's opening statement. In a subsequent habeas corpus proceeding, a Federal District Court held that the Double Jeopardy Clause protected the defendant from another trial. The Court of Appeals for the Ninth Circuit affirmed.1 The questions presented are whether the record reflects the kind of "necessity" for the mistrial ruling that will avoid a valid plea of double jeopardy, and if so, whether the plea must nevertheless be allowed because the Arizona trial judge did not fully explain the reasons for his mistrial ruling.
2
* In 1971 respondent was found guilty of murdering a hotel night clerk. In 1973, the Superior Court of Pima County, Ariz., ordered a new trial because the prosecutor had withheld exculpatory evidence from the defense. The Arizona Supreme Court affirmed the new trial order in an unpublished opinion.
3
Respondent's second trial began in January 1975. During the voir dire examination of prospective jurors, the prosecutor made reference to the fact that some of the witnesses whose testimony the jurors would hear had testified in proceedings four years earlier.2 Defense counsel told the prospective jurors "that there was evidence hidden from [respondent] at the last trial." In his opening statement, he made this point more forcefully:
4
"You will hear testimony that notwithstanding the fact that we had a trial in May of 1971 in this matter, that the prosecutor hid those statements and didn't give those to the lawyer for George saying the man was Spanish speaking, didn't give those statements at all, hid them.
5
"You will hear that that evidence was suppressed and hidden by the prosecutor in that case. You will hear that that evidence was purposely withheld. You will hear that because of the misconduct of the County Attorney at that time and because he withheld evidence, that the Supreme Court of Arizona granted a new trial in this case." App. 180-181, 184.
6
After opening statements were completed, the prosecutor moved for a mistrial. In colloquy during argument of the motion, the trial judge expressed the opinion that evidence concerning the reasons for the new trial, and specifically the ruling of the Arizona Supreme Court, was irrelevant to the issue of guilt or innocence and therefore inadmissible. Defense counsel asked for an opportunity "to find some law" that would support his belief that the Supreme Court opinion would be admissible.3 After further argument, the judge stated that he would withhold ruling on the admissibility of the evidence and denied the motion for mistrial. Two witnesses then testified.
7
The following morning the prosecu or renewed his mistrial motion. Fortified by an evening's research, he argued that there was no theory on which the basis for the new trial ruling could be brought to the attention of the jury, that the prejudice to the jury could not be repaired by any cautionary instructions, and that a mistrial was a "manifest necessity." Defense counsel stated that he still was not prepared with authority supporting his belief that the Supreme Court opinion was admissible.4 He argued that his comment was invited by the prosecutor's reference to the witnesses' earlier testimony and that any prejudice could be avoided by curative instructions. During the extended argument, the trial judge expressed his concern about the possibility that an erroneous mistrial ruling would preclude another trial.5
8
Ultimately the trial judge granted the motion, stating that his ruling was based upon defense counsel's remarks in his opening statement concerning the Arizona Supreme Court opinion. The trial judge did not expressly find that there was "manifest necessity" for a mistrial; nor did he expressly state that he had considered alternative solutions and concluded that none would be adequate. The Arizona Supreme Court refused to review the mistrial ruling.6
9
Respondent then filed a petition for writ of habeas corpus in the United States District Court for the District of Arizona, alleging that another trial would violate the Double Jeopardy Clause. After reviewing the transcript of the state proceeding, and hearing the arguments of counsel, the Federal District Judge noted that the Arizona trial judge had not canvassed on the record the possibility of alternatives to a mistrial and expressed the view that before granting a mistrial motion the judge was required "to find that manifest necessity exists for the granting of it."7 Because the record contained no such finding, and because the federal judge was not prepared to make such a finding himself, he granted the writ.8 He agreed with the State, however, that defense counsel's opening statement had been improper.
10
The Ninth Circuit also characterized the opening statement as improper, but affirmed because, absent a finding of manifest necessity or an explicit consideration of alternatives,9 the court was unwilling to infer that the jury was prevented from arriving at a fair and impartial verdict.10 In a concurring opinion, two judges noted that, while the question of manifest necessity had been argued, most of the argument on the mistrial motion had concerned the question whether the opening statement was improper. They concluded that, "absent findings that manifest necessity existed, it . . . [was] quite possible that the grant of mistria was based on the fact that the impropriety of counsel's conduct had been established without reaching the question whether there could, nevertheless, be a fair trial." 546 F.2d, at 833.
11
We are persuaded that the Court of Appeals applied an inappropriate standard of review to mistrial rulings of this kind, and attached undue significance to the form of the ruling. We therefore reverse.
II
12
A State may not put a defendant in jeopardy twice for the same offense. Benton v. Maryland, 395 U.S. 784, 89 S.Ct. 2056, 23 L.Ed.2d 707. The constitutional protection against double jeopardy unequivocally prohibits a second trial following an acquittal. The public interest in the finality of criminal judgments is so strong that an acquitted defendant may not be retried even though "the acquittal was based upon an egregiously erroneous foundation." See Fong Foo v. United States, 369 U.S. 141, 143, 82 S.Ct. 671, 672, 7 L.Ed.2d 629. If the innocence of the accused has been confirmed by a final judgment, the Constitution conclusively presumes that a second trial would be unfair.
13
Because jeopardy attaches before the judgment becomes final, the constitutional protection also embraces the defendant's "valued right to have his trial completed by a particular tribunal."11 The reasons why this "valued right" merits constitutional protection are worthy of repetition. Even if the first trial is not completed, a second prosecution may be grossly unfair. It increases the financial and emotional burden on the accused,12 prolongs the period in which he is stigmatized by an unresolved accusation of wrongdoing,13 and may even enhance the risk that an innocent defendant may be convicted.14 The danger of such unfairness to the defendant exists whenever a trial is aborted before it is completed.15 Consequently, as a general rule, the prosecutor is entitled to one, and only one, opportunity to require an accused to stand trial.
14
Unlike the situation in which the trial has ended in an acquittal or conviction, retrial is not automatically barred when a criminal proceeding is terminated without finally resolving the merits of the charges against the accused. Because of the variety of circumstances that may make it necessary to discharge a jury before a trial is concluded, and because those circumstances do not invariably create unfairness to the accused, his valued right to have the trial concluded by a particular tribunal is sometimes subordinate to the public interest in affording the prosecutor one full and fair opportunity to present his evidence to an impartial jury.16 Yet in view of the importance of the right, and the fact that it is frustrated by any mistrial, the prosecutor must shoulder the burden of justifying the mistrial if he is to avoid the double jeopardy bar. His burden is a heavy one. The prosecutor must demonstrate "manifest necessity" for any mistrial declared over the objection of the defendant.
15
The words "manifest necessity" appropriately characterize the magnitude of the prosecutor's burden.17 For that reason Mr. Justice Story's classic formulation of the test18 has been quoted over and over again to provide guidance in the decision of a wide variety of cases.19 Nevertheless, those words do not describe a standard that can be applied mechanically or without attention to the particular problem confronting the trial judge.20 Indeed, it is manifest that the key word "necessity" cannot be interpreted literally; instead, contrary to the teaching of Webster, we assume that there are degrees of necessity and we require a "high degree" before concluding that a mistrial is appropriate.21
16
The question whether that "high degree" has been reached is answered more easily in some kinds of cases than in others. At one extreme are cases in which a prosecutor requests a mistrial in order to buttress weaknesses in his evidence. Although there was a time when English judges served the Stuart monarchs by exercising a power to discharge a jury whenever it appeared that the Crown's evidence would be insufficient to convict,22 the prohibition against double jeopardy as it evolved in this country was plainly intended to condemn this "abhorrent" practice.23 As this Court noted in United States v. Dinitz, 424 U.S. 600, 611, 96 S.Ct. 1075, 1081, 47 L.Ed.2d 267:
17
"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' . . . 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."
18
Thus, the strictest scrutiny is appropriate when the basis for the mistrial is the unavailability of critical prosecution evidence,24 or when there is reason to believe that the prosecutor is using the superior resources of the State to harass or to achieve a tactical advantage over the accused.25
19
At the other extreme is the mistrial premised upon the trial judge's belief that the jury is unable to reach a verdict, long considered the classic basis for a proper mistrial.26 The argument that a jury's inability to agree establishes reasonable doubt as to the defendant's guilt, and therefore requires acquittal, has been uniformly rejected in this country. Instead, without exception, the courts have held that the trial judge may discharge a genuinely deadlocked jury and require the defendant to submit to a second trial. This rule accords recognition to society's interest in giving the prosecution one complete opportunity to convict those who have violated its laws.
20
Moreover, in this situation there are especially compelling reasons for allowing the trial judge to exercise broad discretion in deciding whether or not "manifest necessity" justifies a discharge of the jury. On the one hand, if he discharges the jury when further deliberations may produce a fair verdict, the defendant is deprived of his "valued right to have his trial completed by a particular tribunal." But if he fails to discharge a jury which is unable to reach a verdict after protracted and exhausting deliberations, there exists a significant risk that a verdict may result from pressures inherent in the situation rather than the considered judgment of all the jurors. If retrial of the defendant were barred whenever an appellate court views the "necessity" for a mistrial differently from the trial judge, there would be a danger that the latter, cognizant of the serious societal consequences of an erroneous ruling, would employ coercive means to break the apparent deadlock. Such a rule would frustrate the public interest in just judgments.27 The trial judge's decision to declare a mistrial when he considers the jury deadlocked is therefore accorded great deference by a reviewing court.28
21
We are persuaded that, along the spectrum of trial problems which may warrant a mistrial and which vary in their amenability to appellate scrutiny, the difficulty which led to the mistrial in this case also falls in an area where the trial judge's determination is entitled to special respect.
22
In this case the trial judge ordered a mistrial because the defendant's lawyer made improper and prejudicial remarks during his opening statement to the jury. Although respondent insists that evidence of prosecutorial misconduct29 was admissible as a matter of Arizona law, and therefore that the opening statement was proper, we regard this issue as foreclosed by respondent's failure to proffer any Arizona precedent supportive of his contention30 and by the state court's interpretation of its own law, buttressed by the consistent opinion of the Federal District Court and the Court of Appeals. Cf. Bishop v. Wood, 426 U.S. 341, 346-347, 96 S.Ct. 2074, 2078-2079, 48 L.Ed.2d 684. We therefore start from the premise that defense counsel's comment was improper and may have affected the impartiality of the jury.
23
We recognize that the extent of the possible bias cannot be measured, and that the District Court was quite correct in believing that some trial judges might have proceeded with the trial after giving the jury appropriate cautionary instructions. In a strict, literal sense, the mistrial was not "necessary." Nevertheless, the overriding interest in the evenhanded administration of justice requires that we accord the highest degree of respect to the trial judge's evaluation of the likelihood that the impartiality of one or more jurors may have been affected by the improper comment.
24
The consistent course of decision in this Court in cases involving possible juror bias supports this conclusion. Simmons v. United States, 142 U.S. 148, 12 S.Ct. 171, 35 L.Ed. 968, involved the possibility of bias caused by a newspaper story describing a letter written by defense counsel denying a charge by a third party that one of the jurors was acquainted with the defendant. Without determ ning the truth or falsity of the charge, and without examining the jurors to ascertain what influence the story had upon them, the trial judge declared a mistrial because he considered it " 'impossible that in the future consideration of this case by the jury there can be that true independence and freedom of action on the part of each juror which is necessary to a fair trial of the accused.' " Id., at 150, 12 S.Ct., at 171. This Court affirmed, holding that the judge was justified in concluding that the publication of the letter had made it impossible for the jury "to act with the independence and freedom on the part of each juror requisite to a fair trial of the issue between the parties." Id., at 155, 12 S.Ct., at 172.
25
In Thompson v. United States, 155 U.S. 271, 279, 15 S.Ct. 73, 76, 39 L.Ed. 146, the Court concluded that a mistrial was required when it was revealed that one of the trial jurors had served on the grand jury that indicted the defendant. Since it is possible that the grand jury had heard no more evidence—and perhaps even less—than was presented at the trial, and since the juror in question may have had no actual bias against the defendant, the record did not demonstrate that the mistrial was strictly "necessary." There can be no doubt, however, about the validity of the conclusion that the possibility of bias justified the mistrial.
26
An improper opening statement unquestionably tends to frustrate the public interest in having a just judgment reached by an impartial tribunal. Indeed, such statements create a risk, often not present in the individual juror bias situation,31 that the entire panel may be tainted. The trial judge, of course, may instruct the jury to disregard the improper comment. In extreme cases, he may discipline counsel, or even remove him from the trial as he did in United States v. Dinitz, 424 U.S. 600, 96 S.Ct. 1075, 47 L.Ed.2d 267. Those actions, however, will not necessarily remove the risk of bias that may be created by improper argument. Unless unscrupulous defense counsel are to be allowed an unfair advantage, the trial judge must have the power to declare a mistrial in appropriate cases. The interest in orderly, impartial procedure would be impaired if he were deterred from exercising that power by a concern that any time a reviewing court disagreed with his assessment of the trial situation a retrial would automatically be barred. The adoption of a stringent standard of appellate review in this area, therefore, would seriously impede the trial judge in the proper performance of his "duty, in order to protect the integrity of the trial, to take prompt and affirmative action to stop . . . professional misconduct." Id., at 612, 96 S.Ct., at 1082.32
27
There are compelling institutional considerations militating in favor of appellate deference to the trial judge's evaluation of the significance of possible juror bias.33 He has seen and heard the jurors during their voir dire examination. He is the judge most familiar with the evidence and the background of the case on trial. He has listened to the tone of the argument as it was delivered and has observed the apparent reaction of the jurors. In short, he is far more "conversant with the factors relevant to the determination" than any reviewing court can possibly be. See Wade v. Hunter, 336 U.S. 684, 687, 69 S.Ct. 834, 836, 93 L.Ed. 974.
III
28
Our conclusion that a trial judge's decision to declare a mistrial based on his assessment of the prejudicial impact of improper argument is entitled to great deference does not, of course, end the inquiry. As noted earlier, a constitutionally protected interest is inevitably affected by any mistrial decision. The trial judge, therefore, "must always temper the decision whether or not to abort the trial by considering the importance to the defendant of being able, once and for all, to conclude his confrontation with society through the verdict of a tribunal he might believe to be favorably disposed to his fate." United States v. Jorn, 400 U.S., at 486, 91 S.Ct., at 558 (Harlan, J.). In order to ensure that this interest is adequately protected, reviewing courts have an obligation to satisfy themselves that, in the words of Mr. Justice Story, the trial judge exercised "sound discretion" in declaring a mistrial.
29
Thus, if a trial judge acts irrationally or irresponsibly, cf. United States v. Jorn, supra; see Illinois v. Somerville, 410 U.S., at 469, 93 S.Ct., at 1072, his action cannot be condoned. But our review of this record indicates that this was not such a case.34 Defense counsel aired improper and highly prejudicial evidence before the jury, the possible impact of which the trial judge was in the best position to assess. The trial judge did not act precipitately in response to the prosecutor's request for a mistrial. On the contrary, evincing a concern for the possible double jeopardy consequences of an erroneous ruling, he gave both defense counsel and the prosecutor full opportunity to explain their positions on the propriety of a mistrial. We are therefore persuaded by the record that the trial judge acted responsibly and deliberately, and accorded careful consideration to respondent's interest in having the trial concluded in a single proceeding. Since he exercised "sound discretion" in handling the sensitive problem of possible juror bias created by the improper comment of defense counsel, the mistrial order is supported by the "high degree" of necessity which is required in a case of this kind.35 Neither party has a right to have his case decided by a jury which may be tainted by bias;36 in these circumstances, "the public's interest in fair trials designed to end in just judgements"37 must prevail over the defendant's "valued right" to have his trial concluded before the first jury impaneled.
IV
30
One final matter requires consideration. The absence of an explicit finding of "manifest necessity" appears to have been determinative for the District Court and may have been so for the Court of Appeals. If those courts regarded that omission as critical.38 they required too much. Since the record provides sufficient justification for the state-court ruling, the failure to explain that ruling more completely does not render it constitutionally defective.
31
Review of any trial court decision, is of course, facilitated by findings and by an explanation of the reasons supporting the decision. No matter how desirable such procedural assistance may be, it is not constitutionally mandated in a case such as this. Cf. Cupp v. Naughten, 414 U.S. 141, 146, 94 S.Ct. 396, 400, 38 L.Ed.2d 368. The basis for the trial judge's mis rial order is adequately disclosed by the record, which includes the extensive argument of counsel prior to the judge's ruling. The state trial judge's mistrial declaration is not subject to collateral attack in a federal court simply because he failed to find "manifest necessity" in those words or to articulate on the record all the factors which informed the deliberate exercise of his discretion.39
The judgment of the Court of Appeals is
32
Reversed.
33
Mr. Justice BLACKMUN concurs in the result.
34
Mr. Justice WHITE, dissenting.
35
I cannot agree with the Court of Appeals that the failure of a state trial judge to express the legal standard under which he has declared a mistrial is, in itself and without further examination of the record, sufficient reason to infer constitutional error foreclosing a second trial. The Court's opinion in Townsend v. Sain, 372 U.S. 293, 83 S.Ct. 745, 9 L.Ed.2d 770 (1963), is to the contrary. There, in the course of a full scale exposition of the proper approach to be followed by a federal court in determining whether a writ of habeas corpus should be issued on the petition of a state prisoner, the Court addressed the situation where the state trial judge, in making the challenged ruling, did not articulate the constitutional standard under which he acted. The Court concluded that "the coequal responsibilities of state and federal judges in the administration of federal constitutional law are such that we think the district judge may, in the ordinary case in which there has been no articulation, properly assume that the state trier of fact applied correct standards of federal law to the facts, in the absence of evidence . . . that there is reason to suspect that an incorrect standard was in fact applied." Id., at 314-315, 83 S.Ct., at 758. A silent record is not a sufficient basis for concluding that the state judge has committed constitutional error; the mere possibility of error is not enough to warrant habeas corpus relief.
36
The Court of Appeals, as well as the District Court, was therefore in error in granting relief without further examination of the record to determine whether the use of an incorrect legal standard was sufficiently indicated by something beyond mere silence and, if not, whether the declaration of a mistrial, which the Court of Appeals said it was "normally inclined to uphold," at least in the absence of "clear abuse of discretion," was constitutionally vulnerable. I would not, however, undertake an examination of the record here in the first instance. Rather, I would vacate the judgment of the Court of Appeals and direct that court to remand the case to the District Court to make the initial judgment under the correct legal standard, as to whether the writ should issue. This disagreement with the Court's disposition leads me to dissent.
37
Mr. Justice MARSHALL, with whom Mr. Justice BRENNAN joins, dissenting.
38
The Court today holds that another trial of respondent, following a mist ial declared over his vehement objection, is not prohibited by the Double Jeopardy Clause. To reach this result, my Brethren accord a substantial degree of deference to a trial court finding that the Court simply assumes was made but that appears nowhere in the record. Because of the silence of the record on the crucial question whether there was "manifest necessity" for a mistrial, I believe that another trial of respondent would violate his constitutional right not to be twice put in jeopardy for the same offense. I therefore dissent.
39
My disagreement with the majority is a narrow one. I fully concur in its view that the constitutional protection of the Double Jeopardy Clause "embraces the defendant's 'valued right to have his trial completed by a particular tribunal,' " since a second prosecution inevitably "increases the financial and emotional burden on the accused, prolongs the period in which he is stigmatized by an unresolved accusation of wrongdoing, and may even enhance the risk that an innocent defendant may be convicted." Ante, at 503-504 (footnotes omitted). For these reasons, I also agree that, where a mistrial is declared over a defendant's objections, a new trial is permissible only if the termination of the earlier trial was justified by a "manifest necessity" and that the prosecution must shoulder the "heavy" burden of demonstrating such a "high degree" of necessity. Ante, at 505-506. Nor do I quarrel with the proposition that reviewing courts must accord substantial deference to a trial judge's determination that the prejudicial impact of an improper opening statement is so great as to leave no alternative but a mistrial to secure the ends of public justice. Ante, at 510, 513-514.1
40
Where I part ways from the Court is in its assumption that an "assessment of the prejudicial impact of improper argument," ante, at 514, sufficient to support the need for a mistrial may be implied from this record. As the courts below found,2 it is not apparent on the face of the record that termination of the trial was justified by a "manifest necessity" or was the only means by which the "ends of public justice" could be fulfilled. United States v. Perez, 9 Wheat. 579, 580, 6 L.Ed. 165 (1824). See also ante, at 511. Defense counsel's improper remarks occupied only one page of a lengthy opening statement. Despite the fact that the prosecutor had vigorously interrupted the opinion statement at numerous points to assert various objections,3 he made no objection to the remarks that formed the basis for the mistrial. If the argument of defense counsel had had a visibly obvious impact on the jurors when uttered, it is hard to believe that this prosecutor would have waited until after the opening statement was finished and the luncheon recess concluded before making his objection known.
41
Although from this distance and in the absence of express findings it is impossible to determine the precise extent to which defense counsel's remarks may have prejudiced the jury against the State, the circumstances set forth above suggest that any such prejudice may have been minimal and subject to cure through less drastic alternatives.4 For example, the jury could have been instructed to disregard any mention of prior legal rulings as irrelevant to the issues at hand, and to consider as evidence only the testimony and exhibits admitted through witnesses on the stand.5 Were there doubt whether such instructions alone would suffice to cure the taint, the jury could have been questioned about the extent of any prejudice. Given the anticipated length of the trial (almost two weeks),6 it is not unlikely that, had the jury been appropriately instructed when the court first found defense counsel to have erred in his opening statement, any prejudice would have dissipated before deliberations were to begin. For these reasons, it is impossible to conclude that a finding of necessity was implicit in the mere grant of the mistrial.7
42
As the majority concedes, ante, at 501, there was no express determination or evaluation by the trial court of the degree of prejudice caused by the improper remarks; nor was there any exploration of possible alternatives to the drastic solution of declaring a mistrial; nor, indeed, any express indication on the face of the record that the trial court was aware of the dictates of the Perez doctrine. Over the two days during which the mistrial motion was argued, the entire thrust of the trial court's questions and comments was to determine whether there was any legal basis for admitting into evidence the Arizona Supreme Court's ruling that the prosecution in an earlier trial had suppressed evidence exculpatory of respondent, to which ruling defense counsel had adverted in opening statement.8 The tenor of the court's remarks throughout—including its statement in declaring the mistrial9—suggests that the only question considered was that of admissibility.10
43
There is no doubt that the trial court's exploration of the evidentiary question was conscientious and deliberate. The majority infers from this care that the trial court must have been aware of the correct legal standard governing the permissibility of retrials following mistrials, and must impliedly, through not expressly, have made the requisite findings of necessity. The deliberation with which the trial court dealt with the evidentiary issue, however, only highlights its failure to address what I believe must be the key inquiry: whether a mistrial, and its abrogation of a defendant's constitutionally protected interest in completing his trial before a particular tribunal. United States v. Jorn, 400 U.S. 470, 486, 91 S.Ct. 547, 557, 27 L.Ed.2d 543 (1971) (plurality opinion of Harlan, J.); Wade v. Hunter, 336 U.S. 684, 689, 69 S.Ct. 834, 837, 93 L.Ed. 974 (1949), is the only way to secure the public interest in a just disposition of the charges.
44
I do not propose that the Constitution invariably requires a trial judge to make findings of necessity on the record to justify the declaration of a mistrial over a defendant's objections. For example, where the nature of the error is one that "would make reversal [of any conviction] on appeal a certainty," Illinois v. Somerville, 410 U.S. 458, 464, 93 S.Ct. 1066, 1070, 35 L.Ed.2d 425 (1973), the appropriate finding may be implied from the declaration of a mistrial.11 What the "manifest necessity" doctrine does require, in my view, is that the record make clear either that there were no meaningful and practical alternatives to a mistrial, or that the trial court scrupulously considered available alternatives and found all wanting but a termination of the proceedings. See United States v. Jorn, supra, 400 U.S., at 485, 91 S.Ct., at 557; Illinois v. Somerville, supra, 410 U.S., at 478-479, 93 S.Ct., at 1077-1078 (MARSHALL, J., dissenting). The record here, as demonstrated above, does neither.
45
Where the need for a mistrial is not "plain and obvious," United States v. Perez, 9 Wheat., at 580, the importance of an affirmative indication that the trial court made the relevant findings is apparent. In the chaos of conducting a trial, with the welter of administrative as well as legal concerns that must occupy the mind of the trial judge, it is all too easy to overlook a legal rule or relevant factor in rendering decision. A requirement of some statement on the record addressed to the need for a mistrial would ensure that appropriate consideration is given to the efficacy of other alternatives and that mistrial decisions are not based upon improper, or only partly adequate, criteria. Of particular relevance here, moreover, it would facilitate proper appellate and habeas review, avoiding the need to speculate on the basis for the decision to terminate the trial.12 These considerations have special force when a mistrial is sought on the ground of jury bias resulting from trial counsel's error. The trial court is uniquely situated to evaluate the seriousness of any such prejudice, see ante, at 513-514, and its failure contemporaneously to do so may preclude meaningful subsequent determination of whether the mistrial was properly granted over the defendant's objection. Thus, where the necessity for a mistrial is not manifest on the face of the record, I would hold that the record must clearly indicate that the trial court made a considered choice among the available alternatives.13
46
Had the court here explored alternatives on the record, or made a finding of substantial and incurable prejudice or other "manifest necessity," this would be a different case and one in which I would agree with both the majority's reasoning and its result.14 On this ambiguous record, however, the absence of any such finding—and indeed of any express indication that the trial court applied the manifest-necessity doctrine leaves open the substantial possibility that there was in fact no need to terminate the proceedings. While the Court states that a "high degree" of necessity is required before a mistrial may properly be granted, its reading of the record here is inconsistent with this principle.
47
I would therefore affirm the judgment of the Court of Appeals.
1
546 F.2d 829 (1977). The order discharging respondent from custody has been stayed pending completion of appellate review.
2
The prosecutor's reference was in the context of asking the venire whether they would be able to credit the testimony of a witness if there were inconsistencies between his present testimony and that given in earlier proceedings.
3
"THE COURT: I cannot conceive how the opinion of the Arizona Supreme Court in this case would be admissible on any basis whatsoever.
"MR. BOLDING: I'll really try to do some additional work, then your Honor, to try to find some law for it. I believe it would be admissible. It's corroborative of the testimony that the jury will hear.
"THE COURT: I'm afraid, and I don't know how we stop it, we're getting to the point where we're trying the County Attorney's office and the County Attorney's office, conduct, whatever it was in the last case, and I simply, I am not going to allow it if this trial goes on and I'm very sorely tempted to grant the State's motion at this time.
"MR. BOLDING: Well your Honor, that's—I will be—sorry if that happens and if the Court tells me now that I cannot examine any witness about that Supreme Court decision until I furnish you some law that says yes, that can come in, then I will abide by that decision, your Honor. I will be working on it and I would like to reserve my right to present that to the Court outside the hearing of the jury at another time.
I just, I believe that it is, it's credible evidence. It's, thinking, you know, off the top of my head here, it's opinion evidence from experts. It's evidence that I believe is truly corroborative of the evidence that the jury will hear and I would certainly like to reserve my right to present some, if I can find you some written law, which would allow this type of testimony, your Honor, as evidence." App. 209-210.
Later, the trial judge expressed disagreement with defense counsel's argument that evidence of prosecutorial misconduct could be admitted on an impeachment theory: "I don't think you're entitled to prove all this misconduct if such is the case, to impeach every witness, and I think that's what you're saying to me." Id., at 217-218.
4
"I have not worked on that because I'm not at that stage yet where I think it's necessary to bring that into evidence." Id., at 243. Apparently when counsel made his opening statement, he was not prepared to support the admissibility of the testimony with legal authority.
5
"[Prosecutor:] The only cure, your Honor, is a mistrial. The State is well aware that if the position I'm taking is wrong, if a mistrial is not proper, that man walks, I know that.
"THE COURT: And I expressed my concern about that, Mr. Butler." Id., at 253.
6
Respondent filed both a "special action"—a proceeding in the nature of a common-law writ of mandamus or prohibition, see 17A Ariz.Rev.Stat.Ann., Rules of Procedure for Special Actions, Rule 1 (1973)—and a petition for a writ of habeas corpus. Respondent also moved in the trial court to dismiss or quash the information. Petitioner does not raise any question about the adequacy of respondent's exhaustion of available state remedies.
7
App. 129.
8
The District Court indicated that a simple statement by the trial judge to the effect that there was "manifest necessity" for the mistrial would have sufficed to defeat the double jeopardy claim. Id., at 130-140.
9
In his opinion for the Court of Appeals, Judge Kilkenny stated:
"In the absence of clear abuse, we are normally inclined to uphold discretionary orders of this nature. In the usual case, the trial judge has observed the complained-of event, heard counsel, and made specific findings. Under such circumstances, a mistrial declaration accompanied by a finding that the jury could no longer render an impartial verdict would not be lightly set aside." 546 F.2d, at 832.
The importance of the absence of express findings or reasons to the decision below seems apparent. The Arizona trial judge "observed the complained-of event" and patiently "heard counsel." Had he taken the additional step of making an express finding of "manifest necessity," it appears that Judge Kilkenny would have reviewed the mistrial ruling under a less exacting abuse-of-discretion standard.
10
In its opinion as originally released, the court stated: "[W]e decline to imply from this impropriety that the jury was completely prevented from arriving at a fair and impartial verdict." App. 29-30. The court subsequently amended its opinion to delete the word "completely" from that sentence. As originally written, the opinion implied that the probability of jury prejudice would not be a sufficient ground for mistrial; only the certainty of prejudice would suffice.
11
This description of the right, which was quoted by Mr. Justice Harlan in his plurality opinion in United States v. Jorn, 400 U.S. 470, 484, 91 S.Ct. 547, 557, 27 L.Ed.2d 543 and by the Court in Illinois v. Somerville, 410 U.S. 458, 466, 93 S.Ct. 1066, 1071, 35 L.Ed.2d 425, was formulated by Mr. Justice Black in his opinion for the Court in Wade v. Hunter, 336 U.S. 684, 689, 69 S.Ct. 834, 837, 93 L.Ed. 974. His complete sentence identifies that right as sometimes subordinate to a larger interest in having the trial end in a just judgment:
"What has been said is enough to show that a defendant's valued right to have his trial completed by a particular tribunal must in some instances be subordinated to the public's interest in fair trials designed to end in just judgments." Ibid.
12
"Reprosecution after a mistrial has unnecessarily been declared by the trial court obviously subjects the defendant to the same personal strain and insecurity regardless of the motivation underlying the trial judge's action." United States v. Jorn, supra, 400 U.S., at 483, 91 S.Ct., at 556.
13
As Mr. Justice Black stated in Green v. United States, 355 U.S. 184, 187-188, 78 S.Ct. 221, 223, 2 L.Ed.2d 199:
"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 well as enhancing the possibility that even though innocent he may be found guilty." (Emphasis added.)
14
In Carsey v. United States, 129 U.S.App.D.C. 205, 208-209, 392 F.2d 810, 813-814 (1967), Judge Leventhal described how subtle changes in the State's testimony, initially favorable to the defendant, may occur during the course of successive prosecutions:
"[T]he Government witnesses came to drop from their testimony impressions favorable to defendant. Thus a key prosecution witness, the last person to see appellant and the deceased together, who began by testifying that they had acted that evening like newlyweds on a honeymoon, without an unfriendly word spoken, ended up by saying for the first time in four trials that the words between them had been 'firm,' and possibly harsh and 'cross.'
"We also note that the police officer who readily acquiesced in the two 'hung jury' trials that appellant was 'hysterical,' later withheld that characterization. This shift, though less dramatic, was by no means inconsequential in view of the significance of appellant's condition at the time he made a statement inconsistent with what he later told another officer."
See also n. 13, supra.
15
As the Court stated in Illinois v. Somerville, supra, 410 U.S., at 471, 93 S.Ct., at 1073:
"The determination by the trial court to abort a criminal proceeding where jeopardy has attached is not one to be lightly undertaken, since the interest of the defendant in having his fate determined by the jury first impaneled is itself a weighty one. . . . Nor will the lack of demonstrable additional prejudice preclude the defendant's invocation of the double jeopardy bar in the absence of some important countervailing interest of proper judicial administration."
16
In his opinion announcing the Court's judgment in United States v. Jorn, supra, 400 U.S., at 479-480, 91 S.Ct., at 554, Mr. Justice Harlan explained why a rigid application of the "particular tribunal" principle is unacceptable:
"[A] criminal trial is, even in the best of circumstances, a complicated affair to manage. . . . [ t is] readily apparent that a mechanical rule prohibiting retrial whenever circumstances compel the discharge of a jury without the defendant's consent would be too high a price to pay for the added assurance of personal security and freedom from governmental harassment which such a mechanical rule would provide."
17
Whether the phrase "manifest necessity," "evident necessity," see Winsor v. The Queen, L.R. 1 Q.B. 289, 305 (1866) (Cockburn, C. J.), or "imperious necessity," see Downum v. United States, 372 U.S. 734, 736, 83 S.Ct. 1033, 1034, 10 L.Ed.2d 100, is used, the meaning is apparently the same.
18
"We think, that in all cases of this nature, the law has invested Courts of justice with the authority to discharge a jury from giving any verdict, whenever, in their opinion, taking all the circumstances into consideration, there is a manifest necessity for the act, or the ends of public justice would otherwise be defeated. They are to exercise a sound discretion on the subject; and it is impossible to define all the circumstances, which would render it proper to interfere. To be sure, the power ought to be used with the greatest caution, under urgent circumstances, and for very plain and obvious causes. . . . But, after all, they have the right to order the discharge; and the security which the public have for the faithful, sound, and conscientious exercise of this discretion, rests, in this, as in other cases, upon the responsibility of the Judges, under their oaths of office." United States v. Perez, 9 Wheat. 579, 580, 6 L.Ed. 165.
19
See, e. g., Wade v. Hunter, 336 U.S. 684, 69 S.Ct. 834, 93 L.Ed. 974 (court-martial proceeding terminated because of military necessity); Simmons v. United States, 142 U.S. 148, 12 S.Ct. 171, 35 L.Ed. 968 (possible juror bias); United States v. Perez, supra (hung jury).
20
As the Court noted in Illinois v. Somerville, 410 U.S., at 462, 93 S.Ct., at 1069, the Perez "formulation, consistently adhered to . . . in subsequent decisions, abjures the application of any mechanical formula by which to judge the propriety of declaring a mistrial in the varying and often unique situations arising during the course of a criminal trial."
21
The English courts have long recognized the truth of this proposition in the "hung jury" context:
"This rule if taken literally seems to command the confinement of the jury till death if they do not agree, and to avoid any such consequence an exception was introduced in practice which Blackstone has described by the words 'except in case of evident necessity.'
"But the exception so expressed has given rise to further doubts, because necessity is an equivocal word, meaning either irresistible compulsion or a high degree of need. Those who have been interested in objecting to a discharge of a jury before verdict, have disputed whether the discharge was necessary in the stricter sense of the word. The same dispute about the meaning of the word necessity in the exception to this rule is the source of the main questions raised upon this writ of error, and they are in substance answered when we decide on the meaning of that word in the exception to this rule, and apply that meaning to the facts appearing on this reco d. We assume it to be clear that the discharge of the jury before verdict may be lawful at some time and under some circumstances. Then with reference to the facts on this record, we hold that the judge at the first trial had by law power to discharge the jury before verdict, when a high degree of need for such discharge was made evident to his mind from the facts which he had ascertained. We cannot define the degree of need without some standard for comparison; we cannot approach nearer to precision than by describing the degree as a high degree such as in the wider sense of the word might be denoted by necessity." Winsor v. The Queen, supra, at 1 Q.B. 390, 394.
22
E. g., Whitebread, 7 How.St.Tr. 311 (1679). See also The Queen v. Charlesworth, 1 B. & S. 460, 500, 121 Eng.Rep. 786, 801 (Q.B.1861); Friedland, Double Jeopardy 13-14, 21-25 (1969); Sigler, Double Jeopardy 87 (1969); Douglas, An Almanac of Liberty 143 (1954). In reaction, the rule developed in England that the judge should not discharge the jury prior to verdict except in cases of "evident necessity." Winsor v. The Queen, supra,, at 304-305. However, if, for example, the judge discharged the jury because a key witness for the Crown refused to testify, see The Queen v. Charlesworth, supra, the accused could nevertheless be retried because jeopardy had not attached under the English rule. Winsor v. The Queen, supra, at 390; The Queen v. Charlesworth, supra ; Friedland, supra, at 22-23.
23
"[I]n the reigns of the latter sovereigns of the Stuart family, a different rule prevailed, that a jury in such case might be discharged for the purpose of having better evidence against him at a future day; and this power was exercised for the benefit of the crown only; but it is a doctrine so abhorrent to every principle of safety and security that it ought not to receive the least countenance in the courts of this country. In the time of James II, and since the Revolution, this doctrine came under examination, and the rule as laid down by my Lord Coke was revived . . . ." State v. Garrigues, 2 N.C. 188, 189, [241] (1795).
24
If, for example, a prosecutor proceeds to trial aware that key witnesses are not available to give testimony and a mistrial is later granted for that reason, a second prosecution is barred. Downum v. United States, 372 U.S. 734, 83 S.Ct. 1033, 10 L.Ed.2d 100. The prohibition against double jeopardy unquestionably "forbids the prosecutor to see the first proceeding as a trial run of his case." Note, Twice in Jeopardy, 75 Yale L.J. 262, 287-288 (1965).
25
As Mr. Justice Douglas noted in Downum v. United States, supra, at 736, 83 S.Ct., at 1034:
"Harassment of an accused by successive prosecutions or declaration of a mistrial so as to afford the prosecution a more favorable opportunity to convict are examples when jeopardy attaches."
Yet, as Mr. Justice Douglas further noted, "those extreme cases do not mark the limits of the guarantee." Ibid. The "particular tribunal" principle is implicated whenever a mistrial is declared over the defendant's objection and without regard to the presence or absence of governmental overreaching. If the "right to go to a particular tribunal is valued, it is because, independent of the threat of bad-faith conduct by judge or prosecutor, the defendant has a significant interest in the decision whether or not to take the case from the jury." United States v. Jorn, 400 U.S., at 485, 91 S.Ct., at 557. See discussion in Part III, infra.
26
Downum v. United States, supra, 372 U.S., at 735-736, 83 S.Ct., at 1033-1034.
27
This public interest in fair judgments is not of recent origin:
"We do take upon ourselves, without the consent of the parties . . . , to discharge the jury when we are satisfied that they have fully considered the case and cannot agree; and I hope no Judge will shrink from taking that course; for, if a jury cannot agree, we ought not to coerce them by personal suffering, nor ought we to expose parties to the danger of a verdict which is not the result of conviction in the minds of the jury, but produced by suffering of mind or body." The Queen v. Charlesworth, 1 B. & S., at 503-504, 121 Eng.Rep., at 802.
28
United States v. Perez, 9 Wheat. 579; Logan v. United States, 144 U.S. 263, 12 S.Ct. 617, 36 L.Ed. 429; Moss v. Glenn, 189 U.S. 506, 23 S.Ct. 851, 47 L.Ed. 921; Keerl v. Montana, 213 U.S. 135, 29 S.Ct. 469, 53 L.Ed. 734; Dreyer v. Illinois, 187 U.S. 71, 23 S.Ct. 28, 47 L.Ed. 79. It should be noted, however, that the rationale for this deference in the "hung" jury situation is that the trial court is in the best position to assess all the factors which must be considered in making a necessarily discretionary determination whether the jury will be able to reach a just verdict if it continues to deliberate. If the record reveals that the trial judge has failed to exercise the "sound discretion" entrusted to him, the reason for such deference by an appellate court disappears. Thus, if the trial judge acts for reasons completely unrelated to the trial problem which purports to be the basis for the mistrial ruling, close appellate scrutiny is appropriate. Cf. United States v. Gordy, 526 F.2d 631 (CA5 1976).
29
Of course, we express no opinion regarding whether the failure of the prosecutor to hand over Brady (Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215) material to the defense at the first trial was deliberate or inadvertent. The decision of the Arizona Supreme Court granting respondent a new trial, in our opinion, does not specifically address the matter. We simply accept for the purpose of analysis respondent's characterization of the failure to disclose the evidence as misconduct.
30
Respondent relies on State v. Burruell, 98 Ariz. 37, 401 P.2d 733 (1965), as the Arizona decision most supportive of admissibility. Tr. of Oral Arg. 30. This case, however, simply stands for the well-accepted proposition that a witness may be impeached with evidence tending to show that he has an interest in giving testimony favorable to the State and against the defendant. It undoubtedly would have been proper for defense counsel to use the statements suppressed at the first trial during the second trial, but there is nothing in Burruell which would suggest that the fact of the suppression would have been admissible for any purpose at the second trial.
31
For example, if there is a suggestion of individual juror bias, it may be possible to replace that juror with an alternate.
32
In his concurring opinion in Dinitz, Mr. Chief Justice BURGER emphasized the narrow purpose and scope of a legitimate opening statement:
"It is to state what evidence will be presented, to make it easier for the jurors to understand what is to follow, and to relate parts of the evidence and testimony to the whole; it is not an occasion for argument. To make statements which will not or cannot be supported by proof is, if it relates to significant elements of the case, professional misconduct. Moreover, it is fundamentally unfair to an opposing party to allow an attorney, with the standing and prestige inherent in being an officer of the court, to present to the jury statements not susceptible of proof but intended to influence the jury in reaching a verdict." 424 U.S., at 612, 96 S.Ct., at 1082.
Our identification of this reason for according deference to the trial judge in juror bias cases generally is not intended as a comment upon the conduct of defense counsel in this case.
33
These considerations must be at least as weighty where a federal court, in considering a state prisoner's collateral challenge to his conviction on the ground that it violated the Double Jeopardy Clause, reviews the determination of a state trial judge as to juror bias.
34
In this case, defense counsel made brief reference during voir dire to the fact that evidence was withheld from the defense at the previous trial. Later in the voir dire the prosecutor expressed his concern to the trial judge that if the jurors were aware of the fact that respondent obtained a new trial because the prosecution failed to produce some evidence, they might be prejudiced against the State. In response to the
prosecutor's concern, the trial judge conducted an inquiry into whether the jurors knew the reason for the new trial. The inquiry revealed that the jurors were not then aware of the reason for the new trial. During the pening statements which followed, however, defense counsel did not leave the matter to the jurors' conjecture; instead, he explicitly stated that they would hear testimony showing that the Supreme Court of Arizona granted respondent a new trial because the prosecutor deliberately withheld exculpatory evidence from the defense. Following completion of opening argument, the prosecutor moved for a mistrial.
During argument on the prosecutor's motion, defense counsel insisted that evidence of prosecutorial misconduct in a prior proceeding was admissible for impeachment purposes; although he could offer no authority to support this novel proposition, he indicated to the judge that he would appreciate an opportunity to "find . . . some written law, which would allow this type of testimony . . . as evidence." Supra, at 500 n. 3. While the trial judge remarked that he could conceive of no basis for the admission of such evidence and that he was tempted to grant the prosecutor's request immediately because of defense counsel's injection of the prosecutorial misconduct issue into the trial, supra, at 499-500, n. 3, he did not act precipitately. Rather, proceeding with caution and giving defense counsel the benefit of the doubt, App. 223, the trial judge reserved ruling on the admissibility question and at first denied the mistrial motion. In avoiding a hasty decision despite his conviction that the evidence was improper, the trial judge was plainly acting out of concern for the double jeopardy interests implicated by an improvident mistrial. Id., at 225, 253.
The following day the prosecutor renewed his motion. The trial judge heard extensive argument from both sides regarding both the propriety of defense counsel's opening statement and the need for a mistrial. Defense counsel contended that any prejudice which might have resulted from the references to prosecutorial misconduct could be cured by cautionary instructions; the prosecutor argued that such an alternative would be inadequate to remove the risk of taint.
35
Two considerations, while not determinative, add support to this conclusion. First, crowded calendars throughout the Nation impose a constant pressure on our judges to finish the business at hand. Generally, they have an interest in having the trial completed as promptly as possible, an interest which frequently parallels the constitutionally protected interest of the accused in having the trial concluded by a particular tribunal. Second, respondent does not attempt to demonstrate specific prejudice from the mistrial ruling, other than the harm which always accompanies retrial. Cf. McNeal v. Hollowell, 481 F.2d 1145, 1147 (CA5 1973).
36
In United States v. Morris, 26 Fed.Cas.No. 15,815, p. 1323 (C.C.Mass.1851), Mr. Justice Curtis held that even after the jury had been sworn, it was not too late to challenge a juror for bias. He pointed out that neither party "can have a vested right to a corrupt or prejudiced juror, who is not fit to sit in judgment in the case." Id., at 1328.
37
Wade v. Hunter, 336 U.S., at 689, 69 S.Ct., at 837.
38
See nn. 7-10 and accompanying text, supra.
39
The Court of Appeals was concerned that the trial judge may have granted the State's mistrial motion because the comments of defense counsel were improper without considering the possible impact of those comments on the impartiality of the jurors. We think this concern was unwarranted. Shortly after defense counsel made his first, brief reference to the withholding of evidence in the earlier trial, the judge indicated his concern regarding the possible "poisoning of the panel." In addition, both sides argued the question of juror bias and offered their views on whether action short of a mistrial would suffice to eliminate the risk of taint. Finally, the trial judge indicated his awareness of the grave consequences of an erroneous mistrial ruling. We are unwilling to assume that a judge, who otherwise acted responsibly and deliberately, simply neglected to consider one of the central issues presented by the mistrial motion and argued by the parties when he made his ruling.
1
This proposition is essentially unremarkable. It is a truism that findings of fact by the trial court may not be set aside on appeal unless "clearly erroneous," and that on review appropriate deference must be given to the trial court's opportunity to judge the credibility of the witnesses. See, e. g., Fed.Rule Civ.Proc. 52(a); Zenith Radio Corp. v. Hazeltine Research, Inc., 395 U.S. 100, 123, 89 S.Ct. 1562, 1576, 23 L.Ed.2d 129 (1969). While the determination that there is no alternative but a mistrial to cure prejudice created by an improper opening statement is in part one of law, in a case of this sort it is based primarily on a factual evaluation of the extent to which the particular jury has been prejudiced.
2
Contrary to the majority's implication, ante, at 502 nn. 8-9, the courts below did not hold that the absence of express findings relating to the necessity for a mistrial was by itself dispositive. Rather, the rulings of the District Court and the Court of Appeals were based on their respective conclusions that on this record it could not independently be determined that "the jury was prevented from arriving at a fair and impartial verdict," and therefore that a finding of manifest necessity was not implicit in this record. 546 F.2d 832; see App. 128-129 (District Court's view that any prejudice could have been cured by cautionary instruction).
Nor can I agree with the majority that the Court of Appeals applied an inappropriate standard of review. It expressly recognized that "[t]he power to discharge a jury . . . is discretionary with the trial court" and that, "[i]n the absence of clear abuse, we . . . normally . . . uphold discretionary orders of this nature." 546 F.2d, at 832. But this is so, noted the court, where "[i]n the usual case, the trial judge has observed the complained-of event, heard counsel, and made specific findings. Under such circumstances, a mistrial declaration accompanied by a finding that the jury could no longer render an impartial verdict would not lightly be set aside." Ibid.
3
See App. 173, 176, 178, 182, 183.
4
As is recognized by the majority in its search for an implied finding that the prejudice was sufficient to warrant a mistrial, mere error by either the prosecutor or the defense is insufficient by itself to provide the "high degree" of necessity, ante, at 506, required to permit a retrial following the grant of a mistrial over the defendant's objections. See United States v. Dinitz, 424 U.S. 600, 608, 96 S.Ct. 1075, 1080, 47 L.Ed.2d 267 (1976), quoting United States v. Jorn, 400 U.S. 470, 484, 91 S.Ct. 547, 556, 27 L.Ed.2d 543 (1971) (plurality opinion of Harlan, J.).
5
I do not mean to suggest that curative instructions are always or even generally sufficient to cure prejudice resulting from evidentiary errors, see Bruton v. United States, 391 U.S. 123, 129, 88 S.Ct. 1620, 1624, 20 L.Ed.2d 476 (1968), quoting Krulewitch v. United States, 336 U.S. 440, 453, 69 S.Ct. 716, 723, 93 L.Ed. 790 (1949) (Jackson, J., concurring), particularly where the error is one by the prosecutor and must be shown to have been harmless beyond any reasonable doubt in order for the conviction to be sustained, see Chapman v. California, 386 U.S. 18, 21-24, 87 S.Ct. 824, 826-828, 17 L.Ed.2d 705 (1967). However, it must be recognized that the cases are legion in which convictions have been upheld despite the jury's exposure to improper material relating to the defendant's past conduct, often because curative instructions have been found sufficient to dispel any prejudice. See, e. g., United States v. Bloom, 538 F.2d 704, 710 (CA5 1976); id. at 711 (Tuttle, J., concurring); United States v. Plante, 472 F.2d 829, 831-832 (CA1), cert. denied, 411 U.S. 950, 93 S.Ct. 1932, 36 L.Ed.2d 411 (1973); United States v. Roland, 449 F.2d 1281 (CA5 1971); Driver v. United States, 441 F.2d 276 (CA5 1971); Beasley . United States, 94 U.S.App.D.C. 406, 218 F.2d 366 (1954), cert. denied, 349 U.S. 907, 75 S.Ct. 584, 99 L.Ed. 1243 (1955). See also United States v. Hoffman, 415 F.2d 14, 21 (CA7), cert. denied, 396 U.S. 958, 90 S.Ct. 431, 24 L.Ed.2d 423 (1969) (prosecutor's closing argument referring to accused as "liar, crook, and wheeler and dealer" was improper but harmless error). If instructions may be found to have cured prosecutorial error relating to the defendant's past misconduct beyond a reasonable doubt, they ought surely to be considered in deciding whether to subject a defendant to a second trial because of defense error in referring to past misconduct by the prosecution.
6
See Tr. of Voir Dire by Defendant's Counsel 22.
7
In this respect, the instant case differs markedly from the situation in Thompson v. United States, 155 U.S. 271, 15 S.Ct. 73, 39 L.Ed. 146 (1894), discussed ante, at 512. There, upon discovery that one of the petit jurors had served on the grand jury indicting the defendant, the trial court immediately announced that, "[if it] is insisted on by the gentlemen, there is no way left but for the court to discharge the jury on that ground . . . ." Record in No. 637, O.T. 1893, p. 20. Defense counsel objected to the juror's participation, but also objected to a discharge of the jury, arguing that he was entitled to an acquittal once having been placed in jeopardy. The trial court was of the view, clearly correct, that had the juror remained on the panel despite counsel's objection any conviction would have been reversed. Id., at 21-22. That being the case, the trial court held that the jury could be discharged and a new jury impaneled without violating the Double Jeopardy Clause. This Court affirmed.
8
Thus, while the trial court repeatedly challenged defense counsel on his theories for admissibility of the Arizona Supreme Court's ruling, see App. 204, 205, 209, 211, 217, 248, not once did the court refer to "manifest necessity"; question defense counsel as to the nature of any curative instructions that might be propounded; or otherwise indicate a consciousness that mere error on either side is insufficient to warrant the grant of a mistrial over defense objections, see n. 4, supra.
9
"Based upon defense counsel's remarks in his opening statement concerning the Arizona Supreme Court opinion and its effect for the reasons for the new trial, the motion for mistrial will be granted." App. 271-272.
As was noted in the Court of Appeals, the circumstances of the argument on the mistrial motion and the ruling itself make it "quite possible that the grant of mistrial was based on the fact that the impropriety of counsel's conduct had been established without reaching the question whether there could, nevertheless, be a fair trial." 546 F.2d, at 833 (Merrill, J., concurring).
10
The majority relies on three aspects of the record to support its conclusion that the trial court did make an evaluation of the prejudicial impact of counsel's remarks and of the need for a mistrial to correct the error. Ante, at 514-515, n. 34, at 517 n. 39. The first is that the trial court was aware of the double jeopardy consequences of an improvidently granted mistrial, namely, that the defendant may not be tried again. While this is true, none of the comments by the court suggests a concern with the propriety of anything other than its ruling on the evidentiary question. See App. 225, 253. Second, the majority points to the fact that counsel each argued whether the prejudice could be cured by means other than a mistrial. But such argument occupied only a minuscule portion of each side's discussion and elicited no comment or response from the court.
Finally, the Court notes that at the voir dire of the jury, the trial court expressed concern about "poisoning of the panel" and that to allay this concern, the jury was questioned as to its knowledge of the reasons for a new trial. The transcript of the voir dire, however, suggests that this questioning had two purposes: to determine whether any jurors knew why there was a second trial, and to determine whether such knowledge would prejudice them in their deliberations. Tr. of Voir Dire, supra, at 35. Since no jurors knew of the reason for the new trial, no inquiry was made as to prejudice—recognized at this time by the court and by counsel as a separate issue. None of these portions of the record establishes that the trial court at any time made a determination that the prejudice from counsel's opening statement could not be cured by an instruction, or that the court had any basis, such as through a voir dire, on which to make such a determination.
11
See, e. g., Thompson v. United States, discussed ante, at 512, and in n. 7, supra. Although not every error that would require reversal upon conviction necessitates a mistrial, frequently the "high degree of necessity" required by the Perez doctrine is present, and may be implied from the record if not expressed thereon, when an error of such magnitude prompts a mistrial. See Illinois v. Somerville, 410 U.S. 458, 477-483, 93 S.Ct. 1066, 1076-1080, 35 L.Ed.2d 425 (1973) (MARSHALL, J., dissenting).
12
Moreover, given the wide variety of situations in which it may be appropriate to grant a mistrial, and the difficulty in setting forth a single standard that can provide meaningful guidance on each occasion, a statement of reasons by the trial court would contribute to the development of a body of rules, precedents, and principles that might be useful in providing guidance to other courts. Cf. United States ex rel. Johnson v. Chairman of N. Y. State Bd. of Parole, 500 F.2d 925, 928-934 (CA2), vacated as moot, 419 U.S. 1015, 95 S.Ct. 488, 42 L.Ed.2d 289 (1974).
13
Given the importance of respondent's constitutionally protected interest in avoiding unnecessary second trials, United States v. Jorn, 400 U.S., at 486, 91 S.Ct., at 557, it might even be argued that a statement of reasons explicitly relating to the need for a mistrial is always required. I do not go this far here, but only observe that we have held in numerous contexts that governmental decisionmakers must state their reasons for decision, particularly where the decision is adverse to the constitutionally or statutorily protected interests of an individual. See, e. g., Morrissey v. Brewer, 408 U.S. 471, 489, 92 S.Ct. 2593, 2604, 33 L.Ed.2d 484 (1972); Goldberg v. Kelly, 397 U.S. 254, 271, 90 S.Ct. 1011, 1022, 25 L.Ed.2d 287 (1970).
14
In Simmons v. United States, 142 U.S. 148, 12 S.Ct. 171, 35 L.Ed. 968 (1891), discussed ante, at 512, the trial court had explained at length the reasons for its conclusion that there was a "manifest necessity" for the mistrial. 142 U.S., at 149-150, 12 S.Ct., at 171-172. Indeed, even in Thompson v. United States, discussed ante, at 512, and in n. 7, supra, the trial court's finding that there was "no [other] way" to respond to the grand juror's presence on the petit jury sufficiently indicated on the record an exercise of discretion informed by the "manifest necessity" standard.
| 01
|
55 L.Ed.2d 1
98 S.Ct. 841
434 U.S. 528
Arthur FULMAN et al., Trustees, Petitioners,v.UNITED STATES.
No. 76-1137.
Argued Nov. 29, 1977.
Decided Feb. 22, 1978.
Syllabus
The provision of Treas.Reg. § 1.562-1(a) that a personal holding company's distribution of appreciated property to its shareholders results, under §§ 561 and 562 of the Internal Revenue Code of 1954, in a dividends-paid deduction limited to an amount that is the adjusted tax basis of the property in the hands of the company at the time of the distribution held valid as having a reasonable basis, as against the contention that such deduction should be equal in amount to the fair market value of the property distributed. Given the fact that § 27(d) of the Internal Revenue Code of 1939 expressly provided the "adjusted basis" measure for valuation of dividends paid in appreciated property rather than money, and the ambiguity surrounding the legislative history of § 562 of the 1954 Code, which sets forth the rules applicable in determining dividends eligible for the dividends-paid deduction but contains no counterpart to § 27(d) of the 1939 Code, no "weighty reason" justifying setting aside the regulation in question can be identified. Pp. 530-539.
545 F.2d 268, affirmed.
Argued by Daniel D. Levenson, Boston, Mass., for petitioners.
Michael L. Paup, Washington, D. C., for respondent.
Mr. Justice BRENNAN delivered the opinion of the Court.
1
The question presented in this case is the validity of the provision of Treas.Reg. § 1.562-1(a), 26 CFR § 1.562-1(a) (1977), that a personal holding company's distribution of appreciated property to its shareholders results, under §§ 561 and 562 of the Internal Revenue Code of 1954, 26 U.S.C. §§ 561 and 562, in a dividends-paid deduction limited to an amount that is "the adjusted basis of the property in the hands of the distributing corporation at the time of the distribution."1 The Court of Appeals for the First Circuit sustained the validity of the provision in this case, 545 F.2d 268 (1976), disagreeing with the Court of Appeals for the Sixth Circuit in H. Wetter Mfg. Co. v. United States, 458 F.2d 1033 (1972), which had concluded that the limitation on the dividends paid deduction is invalid and that a personal holding company is entitled to a deduction equal in amount to the fair market value of property distributed.2 We granted certiorari to resolve the conflict. 431 U.S. 928, 97 S.Ct. 2630, 53 L.Ed.2d 243 (1977). We agree with the Court of Appeals for the First Circuit that the limitation on the dividends-paid deduction provided by the regulations is valid, and therefore affirm its judgment.
2
* The maximum income tax rate applied to corporations has for many years been substantially below marginal tax rates applicable to high-income individuals. As early as 1913, Congress recognized that this disparity provided an incentive for individuals to create corporations solely to avoid taxes. In response Congress imposed a tax on the shareholders of any corporation "formed or fraudulently availed of" for the purpose of avoiding personal income taxes. Tariff Act of 1913, § II-A, Subdivision 2, 38 Stat. 166; see Ivan Allen Co. v. United States, 422 U.S. 617, 624-625, and n. 8, 95 S.Ct. 2501, 2505-2506 and n. 8, 45 L.Ed.2d 435 (1975). Section 220 of the Revenue Act of 1921, 42 Stat. 247, shifted the incidence of this tax to the corporation itself, where it has remained to this day. See Ivan Allen Co. v. United States, supra, at 625 n. 8, 95 S.Ct., at 2505 n. 8.
3
Early statutes designed to combat abuse of the corporate form were not notably successful, however, and in 1934 Congress concluded that the "incorporated pocketbook"—a closely held corporation formed to receive passive investment property and to accumulate income accruing with respect to that property—had become a major vehicle of tax avoidance.3 Congress' response was the personal holding company tax, enacted in 1934, and now codified as §§ 541-547 and 561-565 of the Internal Revenue Code of 1954,4 26 U.S.C. §§ 541-547 and 561-565 (1970 ed. and Supp.V).
4
The object of the personal holding company tax is to force corporations which are "personal holding companies"5 to pay in each tax year dividends at least equal to the corporation's undistributed personal holding company income—i. e., its adjusted taxable income less dividends paid to shareholders of the corporation, see § 545—thus ensuring that taxpayers cannot escape personal taxes by accumulating income at the corporate level. This object is effectuated by imposing on a personal holding company both the ordinary income tax applicable to its operation as a corporation and a penalty tax of 70% on its undistributed personal holding company income. See §§ 541, 545, 561. Since the penalty tax rate equals or exceeds the highest rate applicable to individual taxpayers, see 26 U.S.C. § 1 (1970 ed. and Supp.V), it will generally be in the interest of those controlling the personal holding company to distribute all personal holding company income, thereby avoiding the 70% tax at the corporate level by reducing to zero the tax base against which it is applied.6
II
5
Petitioners are the successors to Pierce Investment Corp. In 1966 the Commissioner audited Pierce and determined that it was a personal holding company for the tax years 1959, 1960, 1962, and 1963. Deficiencies in personal holding company taxes of $26,571.30 were assessed against Pierce. In response to the audit, Pierce entered an agreement with the Commissioner pursuant to § 547 of the Code which provides that a corporation in Pierce's position may enter such an agreement, acknowledging its deficiency and personal holding company status, and may within 90 days thereafter make "deficiency dividend" payments that become a deduction against personal holding company income in the years for which a deficiency was determined and reduce that deficiency. Shares of stock Pierce held in other companies were promptly distributed as deficiency dividends. The fair market value of this stock at the time of distribution is agreed to have been $32,535; its adjusted tax basis, $18,725.11.
6
Pierce then filed a claim for a deficiency-dividend deduction, as required by § 547(e), indicating that the value of dividends distributed for the tax years in question was $32,535. The Commissioner, relying on Treas.Reg. § 1.562-1(a), allowed this claim only to the extent of Pierce's adjusted basis in the stock, and he determined a new deficiency after reducing Pierce's personal holding company income by the amount of the deficiency dividends allowed. Pierce paid this tax and the Commissioner denied its claim for a refund.
7
Petitioners as Pierce's successors thereafter brought a refund suit in the United States District Court for the District of Massachusetts, arguing that the deficiency dividends should have been valued at their fair market value. The District Court on cross-motions for summary judgment denied relief, 407 F.Supp. 1039 (1976), and the Court of Appeals for the First Circuit affirmed. Each court found the Treasury Regulation to be a reasonable interpretation of the personal holding company tax statute, and each expressly refused to follow the contrary holding of H. Wetter Mfg. Co. v. United States, supra.7 Accordingly a refund was denied.
III
8
"[I]t is fundamental . . . that as 'contemporaneous constructions by those charged with administration of' the Code, [Treasury] Regulations 'must be sustained unless unreasonable and plainly inconsistent with the revenue statutes,' and 'should not be overruled except for weighty reasons.' " Bingler v. Johnson, 394 U.S. 741, 749-750, 89 S.Ct. 1439, 1445, 22 L.Ed.2d 695 (1969), quoting Commissioner of Internal Revenue v. South Texas Lumber Co., 333 U.S. 496, 501, 68 S.Ct. 695, 698, 92 L.Ed. 831 (1948); accord, United States v. Correll, 389 U.S. 299, 306-307, 88 S.Ct. 445, 449-450, 19 L.Ed.2d 537 (1967). This rule of deference is particularly appropriate here,8 since, while obviously some rule of valuation must be applied, Congress, as we shall see, failed expressly to provide one. See United States v. Correll, supra; 26 U.S.C. § 7805(a).
9
Section 547(a) of the Code requires that a taxpayer who like Pierce pays dividends after a determination of liability by the Commissioner "shall be allowed" "a deduction . . . for the amount of deficiency dividends (as defined in subsection (d)) for the purpose of determining the personal holding company tax." Subsection 547(d) in turn provides that
10
"the term 'deficiency dividends' means the amount of the dividends paid by the corporation . . ., which would have been includible in the computation of the deduction for dividends paid under section 561 for the taxable year with respect to which the liability for personal holding company tax exists, if distributed during such taxable year."
11
Continuing this chain of definitions, § 561(a) provides that the deduction for dividends "shall be the sum of," inter alia, dividends paid during the taxable year; and § 561(b)(1) points to § 562 as the source of a rule for valuing such dividends. Section 562, however, provides only exceptions to a basic rule said to be provided by § 316 of the Code, 26 U.S.C. § 316. But when we turn to § 316, the trail of definitions finally turns cold, for that section states only that a dividend is a "distribution of property made by a corporation to its shareholders" out of current or accumulated earnings or, in the case of personal holding companies, out of its current personal holding company income. Inexplicably, moreover, the draftsmen refer us back to § 562 for "[r]ules applicable in determining dividends eligible for dividends paid credit deduction." See Cross References following § 316.
12
Petitioners suggest that the way out of this circularity is to adopt the valuation rules for distributions of property found in § 301 of the Code, 26 U.S.C. § 301. We cannot agree, for § 301 deals not with the problem of valuing the distribution with respect to the distributing corporation, but establishes rules governing the valuation with respect to distributees. This is not to deny the logical force of petitioners' argument that, since the purpose of the personal holding company tax is to force individuals to include personal holding company income in their individual returns, the corporate distributor should get a deduction at the corporate level equal to the income generated by the distribution at the shareholder level as defined by § 301, that is, the fair market value of the appreciated property in this case.9 See 26 U.S.C. § 301(b) (1)(A).deed,S YH. Wetter Mfg. Co. v. United States, 458 F.2d 1033 (1972), and Gulf Inland Corp. v. United States, 75-2 USTC ¶ 9620 (WD La.), appeal docketed, No. 75-3767 (CA5 1975), have taken the view urged by petitioners, and but for the Regulation, the argument might well prevail.10 But, as we have indicated, the issue before us is not how we might resolve the statutory ambiguity in the first instance, but whether there is any reasonable basis for the resolution embodied in the Commissioner's Regulation. We conclude that there is.
13
In the Revenue Act of 1936, Congress enacted a surtax on undistributed profits intended to supplement the 1934 enactment of the personal holding company tax. In § 27(c) of the 1936 Act, 49 Stat. 1665, later codified as § 27(d) of the Internal Revenue Code of 1939, 53 Stat. 20, Congress expressly provided the "adjusted basis" measure for valuation with respect to the distributing corporation of dividends paid in appreciated property rather than money:
14
"If a dividend is paid in property other than money . . . the dividends paid credit with respect thereto shall be the adjusted basis of the property in the hands of the corporation at the time of the payment, or the fair market value of the property at the time of the payment, whichever is the lower."
15
Although this section may not have been enacted with the personal holding company tax primarily in mind,11 § 351(b)(2)(C) of the 1936 Act12 nonetheless expressly provided that the dividends-paid credit for that tax would be governed by § 27(c). At the same time, in contrast, the 1936 Act provided that property distributed as a dividend would be valued with respect to distributees at its fair market value. See Revenue Act of 1936, § 115(j), 49 Stat. 1689.
16
The relevant provisions of the 1936 Revenue Act were carried over without material change into the Internal Revenue Code of 1939. See §§ 27(d), 115(j) of that Code, 53 Stat. 20, 48. Thus, the logical symmetry between the gain re ognized at the shareholder level and the dividend credit allowed at the corporate level, which petitioners argue should be the touchstone for our decision, was not part of the scheme of the Internal Revenue Code from 1936 to 1954.
17
Nor can Congress' failure to re-enact a counterpart to § 27(c) in the 1954 Code be read unambiguously to indicate that Congress had abandoned the "adjusted basis" measure in favor of the "fair market value" measure. In describing the purpose of § 562(a), which defines dividends eligible for deduction for personal holding company tax purposes, the Senate Finance Committee explained:
18
"Subsection (a) provides that the term 'dividend' for purposes of this part shall include, except as otherwise provided in this section, only those dividends described in section 316 . . . . The requirements of sections 27(d), (e), (f), and (i) of existing law [Internal Revenue Code of 1939, as amended] are contained in the definition of 'dividend' in section 312, and accordingly are not restated in section 562." S.Rep.No.1622, 83d Cong., 2d Sess., 325 (1954); U.S.Code Cong. & Admin.News 1954, p. 4965.
19
The Report of the House Ways and Means Committee is in haec verba, except that it says that the requirements of §§ 27(d), (e), (f), and (i) are contained in what is now § 316 of the 1954 Code.13 See H.R.Rep.No.1337, 83d Cong., 2d Sess., A181 (1954); U.S.Code Cong. & Admin.News 1954 p. 4025. The discrepancy between the House and Senate Reports is not material, however, since, as we have explained, there is no way to reach the result of § 27(c) by following any path through the language of the 1954 Code.14 In light of the failure of the language of the Code to create the result of § 27(c), the statement in the House and Senate Reports could be read to indicate that Congress meant to incorporate only so much of § 27 as was actually enacted—that is, none of it. But this meaning is not compelled, and we cannot say that the language of the Reports cannot be read to evince Congress' intention, albeit erroneously abandoned in execution, to retain the "adjusted basis" valuation rule of § 27(c).
20
At the least, it is not unreasonable for the Commissioner to have assumed that Congress intended to carry forward the law existing prior to the 1954 Code with respect to the measure of valuation. As we said in United States v. Ryder, 110 U.S. 729, 740, 4 S.Ct. 196, 201, 28 L.Ed. 308 (1884): "It will not be inferred that the legislature, in revising and consolidating the laws, intended to change their policy, unless such intention be clearly expressed." Accord, Aberdeen & Rockfish R. Co. v. SCRAP, 422 U.S. 2 9, 309 n. 12, 95 S.Ct. 2336, 2350 n. 12, 45 L.Ed.2d 191 (1975); Muniz v. Hoffman, 422 U.S. 454, 467-472, 95 S.Ct. 2178, 2185-2188, 45 L.Ed.2d 319 (1975); Fourco Glass Co. v. Transmirra Corp., 353 U.S. 222, 227, 77 S.Ct. 787, 790, 1 L.Ed.2d 786 (1957). If we will not read legislation to abandon previously prevailing law when, as here, a recodification of law is incomplete or departs substantially and without explanation from prior law, we cannot conclude that the Commissioner may not adopt a similar rationale in drafting his rule.15 In any case, given the law under the 1939 Code and the ambiguity surrounding the House and Senate Reports on § 562, it is impossible to identify in this case any "weighty reasons" that would justify setting aside the Treasury Regulation.
21
Affirmed.
22
Mr. Justice BLACKMUN took no part in the consideration or decision of this case.
23
Mr. Justice STEVENS, concurring in the judgment.
24
The only portion of the Court's opinion which I am unable to join is that quoted by Mr. Justice POWELL in dissent. I do not see the ineluctable logical need to equate the amount of income received by the shareholder distributee with the amount of the deduction allowed the corporate distributor. In my judgment market value is the appropriate measure of the recipient's income, and adjusted basis is the appropriate debit on the corporation's books.
25
Mr. Justice POWELL, dissenting.
26
The Court's opinion, with commendable candor, recognizes that logic supports petitioners' position:
27
"[We do] not . . . deny the logical force of petitioners' argument that, since the purpose of the personal holding company tax is to force individuals to include personal holding company income in their individual returns, the corporate distributor should get a deduction at the corporate level equal to the income generated by the distribution at the shareholder level as defined by § 301, that is the fair market value of the appreciated property in this case. See 28 U.S.C. § 301(b)(1)(A)." Ante, at 534-535.
28
The Court also recognizes the "circularity," ante, at 534, and the "ambiguity," ante, at 536, of the relevant provisions of the Internal Revenue Code, as well as the absence of any clarification thereof in the legislative history. The Court simply resolves the statutory jumble in favor of the Treasury Regulation.
29
It is virtually conceded that this result cannot be squared with the acknowledged purpose of the personal holding company tax. Where statutory ambiguity exists without clarification in the legislative history, a court should read the statute in accord with its manifest purpose. A regulation that defies logic, as well as the statutory purpose, merits little weight.
30
I find no answer in the Court's opinion to the arguments advanced by Professor Drake. See Drake, Distributions in Kind and Dividends Paid Deduction—Conflict in the Circuits, 1977 B.Y.U.L.Rev. 45. See also H. Wetter Mfg. Co. v. United States, 458 F.2d 1033 (CA6 1972).*
31
I respectfully dissent.
1
"§ 561. Definition of deduction for dividends paid.
"(a) General rule.—
"The deduction for dividends paid shall be the sum of—
"(1) the dividends paid during the taxable year,
* * * * *
"(b) Special rules applicable.—
"(1) In determining the deduction for dividends paid, the rules provided in section 562 . . . shall be applicable."
"§ 562. Rules applicable in determining dividends eligible for dividends paid deduction.
"(a) General rule.
"For purposes of this part, the term 'dividend' shall, except as otherwise prov ded in this section, include only dividends described in section 316 . . . ."
"§ 1.562-1 Dividends for which the dividends paid deduction is allowable.
"(a) General rule. . . . If a dividend is paid in property (other than money) the amount of the dividends paid deduction with respect to such property shall be the adjusted basis of the property in the hands of the distributing corporation at the time of the distribution. . . ."
2
Accord, Gulf Inland Corp. v. United States, 75-2 USTC ¶ 9620 (WD La.), appeal docketed, No. 75-3767 (CA5 1975). But see C. Blake McDowell, Inc. v. Commissioner, 67 T.C. 1043 (1977).
3
See H.R.Rep.No.704, 73d Cong., 2d Sess., pt. 1, pp. 11-12 (1934); Subcommittee of House Committee on Ways and Means, 73d Cong., 2d Sess., Preliminary Report on Prevention of Tax Avoidance 6-8 (Comm.Print 1934). For a history of the personal holding company tax, see Libin, Personal Holding Companies and the Revenue Act of 1964, 63 Mich.L.Rev. 421, 421-429 (1965).
4
Sections 561-565 also define the dividends-paid deduction used in the accumulated earnings tax, 26 U.S.C. §§ 531-537 (1970 ed. and Supp.V).
5
A personal holding company is defined as a corporation at least 60% of whose adjusted ordinary gross income is personal holding company income, and 50% of whose stock is owned by five or fewer persons. 26 U.S.C. § 542(a). Personal holding company income is income from passive inve tment property such as dividends, rents, or royalties. § 543.
6
Such dividends would, of course, be taxable to noncorporate shareholders at their fair market value. See 26 U.S.C. § 301(b)(1)(A).
7
In Wetter, the Sixth Circuit, adopting a "plain meaning" rule, held that the 1954 Code required the rule of 26 U.S.C. § 301 to be used in establishing the value of the dividend deduction under the personal holding company tax. The meaning of the 1954 Code is, however, anything but plain.
8
Although we have said that penalty tax provisions are to be strictly construed, see Ivan Allen Co. v. United States, 422 U.S. 617, 627, 95 S.Ct. 2501, 2506, 45 L.Ed.2d 435 (1975); Commissioner of Internal Revenue v. Acker, 361 U.S. 87, 91, 80 S.Ct. 144, 147, 4 L.Ed.2d 127 (1959), this rule of construction does not apply to the personal holding company tax since any penalty can be easily avoided by following—as petitioners' pr decessor did—the guidelines set out in 26 U.S.C. § 547.
9
Petitioners also argue that the valuation standard provided by § 301 was expressly adopted by the House as the standard to be used in establishing the value of a dividend with respect to a corporation as well as to a distributee-shareholder. In H.R. 8300, 83d Cong., 2d Sess. (1954), the
forerunner of the Internal Revenue Code of 1954, § 562(a) referred to § 312 which stated: "The term 'dividend' when used in this subtitle means a DISTRIBUTION (AS DETERMINED IN SECTION 301(A) ) . . . ." (emphasis added.) Section 301(a) defined a "distribution" as "the amount of money . . . and the fair market value of securities and property received" by a distributee. This, petitioners conclude, shows that Congress meant to use the standard of § 301, now codified as 26 U.S.C. § 301, as the standard for valuing distributions of property with respect to both the distribut ng corporation and the distributee-shareholder.
The language in § 312 italicized above was deleted by the Senate, however, and does not appear in § 316 of the 1954 Code which corresponds to § 312 of H.R. 8300, supra. Moreover, as explained infra, at 536-538, the House Report states that the rule of § 27(c) of the Revenue Act of 1936, 49 Stat. 1665, was incorporated in the 1954 Code. If that is indeed the case, then § 301 cannot be the section that governed valuation of property dividends under § 562(a) of H.R. 8300, since § 301 does not embody the valuation rule of § 27(c) with respect to distributions to noncorporate shareholders. Instead, H.R. 8300, § 301(a), mandates the use of fair market value without regard to basis when the distributee is a noncorporate shareholder, whereas § 27(c) mandated the use of the lower of basis or fair market value. The rule of § 27(c) is used in H.R. 8300 only with respect to corporate distributees, taxpayers who were not the target of the personal holding company tax. There is, therefore, no unambiguous inference to be drawn from the linkage between §§ 301, 312, and 562 of the House bill. See also nn. 13-14, infra.
Finally, petitioners argue that our decision in Ivan Allen Co. v. United States, supra, supports their contention that fair market value must be the measure of property dividends. But this is not the case. As we made abundantly clear in Ivan Allen, the fair market value of liquid assets figures only in calculating whether "earnings and profits . . . [have been] permitted to accumulate beyond the reasonable needs of the business." 26 U.S.C. § 533(a). Unrealized appreciation does not figure in the tax base to which the accumulated earnings tax applies. See 422 U.S., at 627, 633, 95 S.Ct., at 2506, 2509. Since Ivan Allen thus holds that appreciation does not figure in the accumulated earnings tax base, there is no justification for reasoning from that opinion that such appreciation must nonetheless figure in the dividends to be subtracted from that base.
10
See generally Drake, Distributions in Kind and the Dividends Paid Deduction—Conflict in the Circuits, 1977 B.Y.U.L.Rev. 45.
11
Section 27 was added as part of a general revision of the undistributed profits and accumulated earnings taxes. See S.Rep.No.2156, 74th Cong., 2d Sess., 12-13, 16-18 (1936). There is no discussion in the legislative history of the 1936 Act of the reason for applying § 27 to personal holding companies.
12
49 Stat. 1732.
13
The Court of Appeals theorized that this discrepancy may have been due to a typographical error in the Senate Report. As the bill which was to become the 1954 Code was passed by the House, the provisions of § 316 of the Code were set out as § 312. The Senate renumbered the bill, but adopted the discussion of the House Report essentially verbatim, possibly failing to correct all instances where section numbers had changed. See 545 F.2d, at 270 n. 2.
14
If one assumes that S.Rep.No.1622, 83d Cong., 2d Sess. (1954), is correct in stating that Congress re-enacted § 27(c) of the Revenue Act of 1936 as § 312 of the 1954 Code, 26 U.S.C. § 312, but see n. 13, supra, then Treas.Reg. 1.562-1(a), 26 CFR § 1.562-1(a) (1977), must be upheld because § 312(a)(3) provides a dividend valuation rule identical to that of § 27(c). But § 312 is on its face addressed only to the narrow issue of the effect of dividends on corporate earnings and profits, an issue unrelated to the personal holding company tax. Therefore § 312 is no more likely to be the correct locus of the re-enactment of § 27(c) than § 301 of the Code. Moreover, even if the Senate did intend § 312 to be the locus of the rule of § 27(c), ambiguity remains because the House, if it put § 27(c) anywhere, put it in §§ 301 and 316 of the Code. See n. 9, supra.
15
Treas.Reg. 1.562-1(a), 26 CFR § 1.562-1(a) (1977), does not, of course, correspond to § 27(c) of the Revenue Act of 1936 in valuing depreciated property. The Treasury Regulation requires adjusted basis to be used in valuing all distributions of property; § 27(c) provided that the lower of adjusted basis or fair market value would be used. See supra, at 536. However, we have no occasion to pass on the validity of § 1.562-1(a) as applied to depreciated property since, even if it should be invalid in that circumstance, this would not help petitioners in this case.
*
I do not view this as a case that, under the Court's holding today, the Government "wins" and personal holding company taxpayers (other than petitioners) "lose." It is not at all clear to me that the Court's resolution of the statutory ambiguity will in the end increase the Government's-
"take." The personal holding company device is used by a limited number of sophisticate taxpayers. Under the "adjusted basis" rule upheld by this decision, many of them will be able to schedule the distribution of appreciated and depreciated property in an advantageous manner. Cf. General Securities Co. v. Commissioner, 42 B.T.A. 754 (1940), aff'd, 123 F.2d 192 (CA10 1941). I simply would have preferred a resolution that advanced the symmetry of the relevant Code provisions, see, e. g., 26 U.S.C. §§ 301, 311, and one compatible with the plain purpose of the personal holding company tax.
| 1112
|
434 U.S. 575
98 S.Ct. 866
55 L.Ed.2d 40
LORILLARD, a Division of Loew's Theatres, Inc., Petitioner,v.Frances P. PONS.
No. 76-1346.
Argued Dec. 6, 1977.
Decided Feb. 22, 1978.
Syllabus
In a private civil action for lost wages under the Age Discrimination in Employment Act of 1967 (ADEA), a trial by jury is available where sought by one of the parties, since, although the ADEA contains no provision expressly granting a right to jury trial in such cases, the ADEA's structure demonstrates a congressional intent to grant such a right. Pp. 577-585.
(a) The directive of § 7(b) of the ADEA that the Act be enforced in accordance with the "powers, remedies, and procedures " of the Fair Labor Standards Act (FLSA) is a significant indication of Congress' intent. Long before the ADEA was enacted, courts had uniformly interpreted the FLSA to afford a right to jury trial in private actions pursuant to that Act. Congress can be presumed to have been aware of that interpretation and by incorporating certain remedial and procedural provisions of the FLSA into the ADEA. Congress demonstrated its intention to afford a right to jury trial. Pp. 580-582.
(b) By directing in § 7(b) of the ADEA that actions for lost wages be treated as actions for unpaid minimum wages or overtime compensation under the FLSA, Congress dictated that the jury trial right then available to enforce that FLSA liability would also be available in private actions under the ADEA. This conclusion is supported by the language of § 7(b) empowering a court to grant "legal or equitable relief" and of § 7(c) authorizing individuals to bring actions for "legal or equitable relief." It can be inferred that Congress knew the significance of the term "legal" and that by providing specifically for "legal" relief, it intended that there would be a jury trial on demand to enforce liability for amounts deemed to be unpaid minimum wages or overtime compensation. Pp. 582-583.
(c) A contrary congressional intent cannot be found by comparing the ADEA with Title VII of the Civil Rights Act of 1964. Assuming, arguendo, that Congress did not intend that there be jury trials in private actions under Title VII, there is a material difference between the ADEA and Title VII. In contrast to the ADEA, Title VII does not, in so many words, authorize "legal' relief, and the availability of backpay is a matter of equitable discretion. It appears, moreover, that Congress rejected the course of adopting Title VII procedures for ADEA actions in favor of incorporating the FLSA procedures. Pp. 583-585.
549 F.2d 950, affirmed.
Thornton H. Brooks, Greensboro, N. C., for petitioner.
Norman B. Smith, Greensboro, N. C., for respondent.
Mr. Justice MARSHALL delivered the opinion of the Court.
1
This case presents the question whether there is a right to a jury trial in private civil actions for lost wages under the Age Discrimination in Employment Act of 1967 (ADEA or Act), 81 Stat. 602, as amended, 88 Stat. 74, 29 U.S.C. § 621 et seq. (1970 ed. and Supp. V). Respondent commenced this action against petitioner, her former employer, alleging that she had been discharged because of her age in violation of the ADEA. She sought reinstatement, lost wages, liquidated damages, attorney's fees, and costs. Respondent demanded a jury trial on all issues of fact; petitioner moved to strike the demand. The District Court granted the motion to strike but certified the issue for interlocutory appeal pursuant to 28 U.S.C. § 1292(b). The United States Court of Appeals for the Fourth Circuit allowed the appeal and vacated the trial court's order, ruling that the ADEA and the Seventh Amendment1 afford respondent the right to a jury trial on her claim for lost wages, 549 F.2d 950, 952-953 (1977).2 We granted certiorari, 433 U.S. 907, 97 S.Ct. 2971, 53 L.Ed.2d 1090 (1977), to resolve the conflict in the Circuits3 on this important issue in the administration of the ADEA. We now affirm.
2
* The ADEA broadly prohibits arbitrary discrimination in the workplace based on age. § 4(a), 29 U.S.C. § 623(a). Although the ADEA contains no provision expressly granting a right to jury trial, respondent nonetheless contends that the structure of the Act demonstrates a congressional intent to grant such a right. Alternatively, she argues that the Seventh Amendment requires that in a private action for lost wages under the ADEA, the parties must be given the option of having the case heard by a jury. We turn first to the statutory question since " 'it is a cardinal principle that this Court will first ascertain whether a construction of the statute is fairly possible by which the [constitutional] question may be avoided.' " United States v. Thirty-seven Photographs, 402 U.S. 363, 369, 91 S.Ct. 1400, 1404, 28 L.Ed.2d 822 (1971), quoting Crowell v. Benson, 285 U.S. 22, 62, 52 S.Ct. 285, 296, 76 L.Ed. 598 (1932). Accord, Pernell v. Southall Realty, 416 U.S. 363, 365, 94 S.Ct. 1723, 1724, 40 L.Ed.2d 198 (1974). Because we find the statutory issue dispositive, we need not address the constitutional issue.
3
The enforcement scheme for the statute is complex—the product of considerable attention during the legislative debates preceding passage of the Act. Several alternative proposals were considered by Congress. The Administration submitted a bill, modeled after §§ 10(c), (e) of the National Labor Relations Act, 29 U.S.C. §§ 160 c), (e), which would have granted power to the Secretary of Labor to issue cease-and-desist orders enforceable in the courts of appeals, but would not have granted a private right of action to aggrieved individuals, S. 830, H.R. 4221, 90th Cong., 1st Sess. (1967). Senator Javits introduced an alternative proposal to make discrimination based on age unlawful under the Fair Labor Standards Act (FLSA), 29 U.S.C. § 201 et seq.; the normal enforcement provisions of the FLSA, 29 U.S.C. § 216 et seq., (1970 ed. and Supp. V), then would have been applicable, permitting suits by either the Secretary of Labor or the injured individual, S. 788, 90th Cong., 1st Sess. (1967). A third alternative that was considered would have adopted the statutory pattern of Title VII of the Civil Rights Act of 1964 and utilized the Equal Employment Opportunity Commission. 42 U.S.C. §§ 2000e-4, 2000e-5 (1970 ed. and Supp. V).
4
The bill that was ultimately enacted is something of a hybrid, reflecting, on the one hand, Congress' desire to use an existing statutory scheme and a bureaucracy with which employers and employees would be familiar and, on the other hand, its dissatisfaction with some elements of each of the pre-existing schemes.4 Pursuant to § 7(b) of the Act, 29 U.S.C. § 626(b), violations of the ADEA generally are to be treated as violations of the FLSA. "Amounts owing . . . as a result of a violation" of the ADEA are to be treated as "unpaid minimum wages or unpaid overtime compensation" under the FLSA and the rights created by the ADEA are to be "enforced in accordance with the powers, remedies and procedures" of specified sections of the FLSA. 29 U.S.C. § 626(b).5
5
Following the model of the FLSA, the ADEA establishes two primary enforcement mechanisms. Under the FLSA provisions incorporated in § 7(b) of the ADEA, 29 U.S.C. § 626(b), the Secretary of Labor may bring suit on behalf of an aggrieved individual for injunctive and monetary relief. 29 U.S.C. §§ 216(c), 217 (1970 ed. and Supp. V). The incorporated FLSA provisions together with § 7(c) of the ADEA, 29 U.S.C. § 626(c), in addition, authorize private civil actions for "such legal or equitable relief as will effectuate the purposes of" the ADEA.6 Although not required by the FLSA, prior to the initiation of any ADEA action, an individual must give notice to the Secretary of Labor of his intention to sue in order that the Secretary can attempt to eliminate the alleged unlawful practice through informal methods. § 7(d), 29 U.S.C. § 626(d). After allowing the Secretary 60 days to conciliate the alleged unlawful practice, the individual may file suit. The right of the individual to sue on his own terminates, however, if the Secretary commences an action on his behalf. § 7(c), 29 U.S.C. § 626(c).
II
6
Looking first to the procedural provisions of the statute, we find a significant indication of Congress' intent in its directive that the ADEA be enforced in accordance with the "powers, remedies, and procedures " of the FLSA. § 7(b), 29 U.S.C. § 626(b) (emphasis added). Long before Congress enacted the ADEA, it was well established that there was a right to a jury trial in private actions pursuant to the FLSA. Indeed, every court to consider the issue had so held.7 Congress is presumed to be aware of an administrative or judicial interpretation of a statute and to adopt that interpretation when it re-enacts a statute without change, see Albemarle Paper Co. v. Moody, 422 U.S. 405, 414 n. 8, 95 S.Ct. 2362, 2370, 45 L.Ed.2d 280 (1975); NLRB v. Gullett Gin Co., 340 U.S. 361, 366, 71 S.Ct. 337, 340, 95 L.Ed. 337 (1951); National Lead Co. v. United States, 252 U.S. 140, 147, 40 S.Ct. 237, 239, 64 L.Ed. 496 (1920); 2A C. Sands, Sutherland on Statutory Construction § 49.09 and cases cited (4th ed. 1973). So too, where, as here, Congress adopts a new law incorporating sections of a prior law, Congress normally can be presumed to have had knowledge of the interpretation given to the incorporated law, at least insofar as it affects the new statute.
7
That presumption is particularly appropriate here since, in enacting the ADEA, Congress exhibited both a detailed knowledge of the FLSA provisions and their judicial interpretation and a willingness to depart from those provisions regarded as undesirable or inappropriate for incorporation. For example, in construing the enforcement sections of the FLSA, the courts had consistently declared that injunctive relief was not available in suits by private individuals but only in suits by the Secretary. Powell v. Washington Post Co., 105 U.S.App.D.C. 374, 267 F.2d 651 (1959); Roberg v. Henry Phipps Estate, 156 F.2d 958, 963 (CA2 1946); Bowe v. Judson C. Burns, Inc., 137 F.2d 37 (CA3 1943). Congress made plain its decision to follow a different course in he ADEA by expressly permitting "such . . . equitable relief as may be appropriate to effectuate the purposes of [the ADEA] including without limitation judgments compelling employment, reinstatement or promotion" "in any action brought to enforce" the Act. § 7(b), 29 U.S.C. § 626(b) (emphasis added). Similarly, while incorporating into the ADEA the FLSA provisions authorizing awards of liquidated damages, Congress altered the circumstances under which such awards would be available in ADEA actions by mandating that such damages be awarded only where the violation of the ADEA is willful.8 Finally, Congress expressly declined to incorporate into the ADEA the criminal penalties established for violations of the FLSA.9
8
This selectivity that Congress exhibited in incorporating provisions and in modifying certain FLSA practices strongly suggests that but for those changes Congress expressly made, it intended to incorporate fully the remedies and procedures of the FLSA. Senator Javits, one of the floor managers of the bill, so indicated in describing the enforcement section which became part of the Act: "The enforcement techniques provided by [the ADEA] are directly analogous to those available under the Fair Labor Standards Act; in fact [the ADEA] incorporates by reference, to the greatest extent possible, the provisions of the [FLSA]." 113 Cong.Rec. 31254 (1967).10 And by directing that actions for lost wages under the ADEA be treated as actions for unpaid minimum wages or overtime compensation under the FLSA, § 7(b), 29 U.S.C. § 626(b), Congress dictated that the jury trial right then available to enforce that FLSA liability would also be available in private actions under the ADEA.
9
This inference is buttressed by an examination of the language Congress chose to describe the available remedies under the ADEA. Section 7(b), 29 U.S.C. § 626(b), empowers a court to grant "legal or equitable relief" and § 7(c), 29 U.S.C. § 626(c), authorizes individuals to bring actions for "legal or equitable relief" (emphases added). The word "legal" is a term of art: In cases in which legal relief is available and legal rights are determined, th Seventh Amendment provides a right to jury trial. See Curtis v. Loether, 415 U.S. 189, 195-196, 94 S.Ct. 1005, 1008-1009, 39 L.Ed.2d 260 (1974). "[W]here words are employed in a statute which had at the time a well-known meaning at common law or in the law of this country they are presumed to have been used in that sense unless the context compels to the contrary." Standard Oil v. United States, 221 U.S. 1, 59, 31 S.Ct. 502, 515, 55 L.Ed. 619 (1911). See Gilbert v. United States, 370 U.S. 650, 655, 82 S.Ct. 1399, 1402, 8 L.Ed.2d 750 (1962); Montclair v. Ramsdell, 107 U.S. 147, 152, 2 S.Ct. 391, 394, 27 L.Ed. 431 (1883). We can infer, therefore, that by providing specifically for "legal" relief, Congress knew the significance of the term "legal," and intended that there would be a jury trial on demand to "enforc[e] . . . liability for amounts deemed to be unpaid minimum wages or unpaid overtime compensation." § 7(b), 29 U.S.C. § 626(b).11
10
Petitioner strives to find a contrary congressional intent by comparing the ADEA with Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. (1970 ed. and Supp. V), which petitioner maintains does not provide for jury trials. We, of course, intimate no view as to whether a jury trial is available under Title VII as a matter of either statutory or constitutional right. See Curtis v. Loether, supra, 415 U.S., at 197, 94 S.Ct., at 1009. However, after examining the provisions of Title VII, we find petitioner's argument by analogy to Title VII unavailing. There are important similarities between the two statutes, to be sure, both in their aims—the elimination of discrimination from the workplace—and in their substantive prohibitions. In fact, the prohibitions of the ADEA were derived in haec verba from Title VII.12 But in deciding whether a statutory right to jury trial exists, it is the remedial and procedural provisions of the two laws that are crucial and there we find significant differences.
11
Looking first to the statutory language defining the relief available, we note that Congress specifically provided for both "legal or equitable relief" in the ADEA, but did not authorize "legal" relief in so many words under Title VII. Compare § 7(b), 29 U.S.C. § 626(b), with 42 U.S.C. § 2000e-5(g) (1970 ed., Supp. V). Similarly, the ADEA incorporates the FLSA provision that employers "shall be liable" for amounts deemed unpaid minimum wages or overtime compensation, while under Title VII, the availability of backpay is a matter of equitable discretion, see Albemarle Paper Co. v. Moody, 422 U.S., at 421, 95 S.Ct., at 2373.13 Finally, rather than adopting the procedures of Title VII for ADEA actions, Congress rejected that course in favor of incorporating the FLSA procedures even while adopting Title VII's substantive prohibitions. Thus, even if petitioner is correct that Congress did not intend there to be jury trials under Title VII, that fact sheds no light on congression l intent under the ADEA. Petitioner's reliance on Title VII, therefore, is misplaced.14
12
We are not unmindful of the difficulty of discerning congressional intent where the statute provides no express answer. However, we cannot assume, in the face of Congress' extensive knowledge of the operation of the FLSA, illustrated by its selective incorporation and amendment of the FLSA provisions for the ADEA, that Congress was unaware that courts had uniformly afforded jury trials under the FLSA. Nor can we believe that in using the word "legal," Congress was oblivious to its long-established meaning or its significance. We are therefore persuaded that Congress intended that in a private action under the ADEA a trial by jury would be available where sought by one of the parties. The judgment of the Court of Appeals is, accordingly,
13
Affirmed.
14
Mr. Justice BLACKMUN took no part in the consideration or decision of this case.
1
Judge Butzner filed an opinion concurring specially. Since he agreed with the court that the statute entitled respondent to a jury trial, he found no occasion to address the constitutional issue. 549 F.2d 950, 954 (1977).
2
The Court of Appeals did not decide whether respondent was entitled to a jury trial on her claim for liquidated damages because according to the District Court opinion, respondent had "conceded that the liquidated damages issue would not be triable to a jury." 69 F.R.D. 576 n. 2 (1976). We express no view on the issue of the right to jury trial on a liquidated damages claim.
3
Morelock v. NCR Corp., 546 F.2d 682 (CA6 1976) (no right to jury trial), cert. pending, No. 77-172; Rogers v. Exxon Research & Engineering Co., 550 F.2d 834 (CA3 1977) (right to jury trial), cert. denied, 434 U.S. 1022, 98 S.Ct. 749, 54 L.Ed.2d 770.
4
Hearings on S. 830, S. 788 before the Subcommittee on Labor of the Senate Committee on Labor and Public Welfare, 90th Cong., 1st Sess., 24 (1967) (remarks of Sen. Javits); id., at 29 (remarks of Sen. Smathers); id., at 396 (statement of National Retail Merchants Assn.). Hearings on H.R. 3651, H.R. 3768, and H.R. 4221 before the General Subcommittee on Labor of the House Committee on Education and Labor, 90th Cong., 1st Sess., 12-13 (1967) (remarks of Secretary of Labor); id., at 413 (statement of Legislative Representative, AFL-CIO).
5
Section 7(b), as set forth in 29 U.S.C. § 626(b), provides:
"The provisions of this chapter shall be enforced in accordance with the powers, remedies, and procedures provided in sections 211(b), 216 (except for subsection (a) thereof), and 217 of this title, and subsection (c) of this section. Any act prohibited under section 623 of this title shall be deemed to be a prohibited act under section 215 of this title. Amounts owing to a person as a result of a violation of this chapter shall be deemed to be unpaid minimum wages or unpaid overtime compensation for purposes of sections 216 and 217 of this title: Provided, That liquidated damages shall be payable only in cases of willful violations of this chapter. In any action brought to enforce this chapter the court shall have jurisdiction to grant such legal or equitable relief as may be appropriate to effectuate the purposes of this chapter, including without limitation judgments compelling employment, reinstatement or promotion, or enforcing the liability for amounts deemed to be unpaid minimum wages or unpaid overtime compensation under this section. Before instituting any action under this section, the Secretary shall attempt to eliminate the discriminatory practice or practices alleged, and to effect voluntary compliance with the requirements of this chapter through informal methods of conciliation, conference, and persuasion."
6
Section 7(c), as set forth in 29 U.S.C. § 626(c), provides:
"Any person aggrieved may bring a civil action in any court of competent jurisdiction for such legal or equitable relief as will effectuate the purposes of this chapter: Provided, That the right of any person to bring such action shall terminate upon the commencement of an action by the Secretary to enforce the right of such employee under this chapter."
7
See, e. g., Wirtz v. Jones, 340 F.2d 901, 904 (CA5 1965); Lewis v. Times Publishing Co., 185 F.2d 457 (CA5 1950); Olearchick v. American Steel Foundries, 73 F.Supp. 273, 279 (WD Pa.1947). See also Note, The Right to Jury Trial Under the Age Discrimination in Employment and Fair Labor Standards Acts, 44 U.Chi.L.Rev. 365, 376 (1977); Note, Fair Labor Standards Act and Trial by Jury, 65 Colum.L.Rev. 514 (1965). However, no right to jury trial was recognized in actions brought by the Secretary of Labor enjoining violations of the FLSA and compelling employers to pay unlawfully withheld minimum wages or overtime compensation pursuant to 29 U.S.C. § 217. See, e. g., Sullivan v. Wirtz, 359 F.2d 426 (CA5 1966); Wirtz v. Jones, supra.
8
By its terms, 29 U.S.C. § 216(b) requires that liquidated damages be awarded as a matter of right for violations of the FLSA. However, in response to its dissatisfaction with that judicial interpretation of the provision, Congress enacted the Portal-to-Portal Pay Act of 1947, 61 Stat. 84, which, inter alia, grants courts authority to deny or limit liquidated damages where the "employer shows to the satisfaction of the court that the act or omission giving rise to such action was in good faith and that he had reasonable grounds for believing that his act or omission was not a violation of" the FLSA, § 11, 29 U.S.C. § 260 (1970 ed., Supp. V). Although § 7(e) of the ADEA, 29 U.S.C. § 626(e), expressly incorporates §§ 6 and 10 of the Portal-to-Portal Pay Act, 29 U.S.C. §§ 255 and 259 (1970 ed. and Supp. V), the ADEA does not make any reference to § 11, 29 U.S.C. § 260 (1970 ed., Supp. V).
9
Section 10 of the ADEA, 29 U.S.C. § 629, establishes criminal penalties for interference with the performance of an authorized representative of the Secretary when he is engaged in the performance of his duties under the Act. Cf. 29 U.S.C. § 216(a).
10
Senator Javits made the only specific reference in the legislative history to a jury trial. He said:
"The whole test is somewhat like the test in an accident case did the person use reasonable care. A jury will answer yes or no. The question here is: Was the individual discriminated against solely because of his age? The alleged discrimination must be proved and the burden of proof is upon the one who would assert that that was actually the case." 113 Cong.Rec. 31255 (1967).
It is difficult to tell whether Senator Javits was referring to the issue in ADEA cases or in accident cases when he said the jury will say yes or no.
11
Section 7(b), 29 U.S.C. § 626(b), does not specify which of the listed categories of relief are legal and which are equitable. However, since it is clear that judgments compelling "employment, reinstatement or promotion" are equitable, see 5 J. Moore, Federal Practice ¶ 38.21 (1977), Congress must have meant the phrase "legal relief" to refer to judgments "enforcing . . . liability for amounts deemed to be unpaid minimum wages or unpaid overtime compensation."
12
Title VII with respect to race, color, religion, sex, or national origin, and the ADEA with respect to age make it unlawful for an employer "to fail or refuse to hire or to discharge any individual," or otherwise to "discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment," on any of those bases. 42 U.S.C. § 2000e-2(a)(1); 29 U.S.C. § 623(a)(1). Compare 42 U.S.C. § 2000e-2(a)(2) (1970 ed., Supp. V) with 29 U.S.C. § 623(a)(2).
13
Although we have held that the discretionary power to deny backpay should be used only where to do so "would not frustrate the central statutory purposes of eradicating discrimination throughout the economy and making persons whole for injuries suffered through past discrimination," Albemarle Paper Co. v. Moody, 422 U.S, at 421, 95 S.Ct., at 2373, we nonetheless have recognized that under Title VII some discretion exists.
14
Indeed, to the extent petitioner correctly interprets congressional intent with respect to jury trials under Title VII, the very different remedial and procedural provisions under the ADEA suggest that Congress had a very different intent in mind in drafting the later law.
| 01
|
434 U.S. 586
98 S.Ct. 873
55 L.Ed.2d 50
J. W. BATESON COMPANY, INC., et al., Petitioners,v.UNITED STATES ex rel. BOARD OF TRUSTEES OF the NATIONAL AUTOMATIC SPRINKLER INDUSTRY PENSION FUND et al.
No. 76-1476.
Argued Nov. 30, 1977.
Decided Feb. 22, 1978.
Syllabus
Petitioner prime contractor (Bateson) entered into a Government contract for construction of a hospital addition and posted a payment bond as required by the Miller Act to protect those who have a direct contractual relationship with either the prime contractor or a "subcontractor." Bateson then subcontracted a portion of the work to a firm (Pierce) which in turn subcontracted with another firm (Colquitt) for installation of a sprinkler system. When Colquitt failed to pay over amounts withheld from its employees' wages for union dues, vacation savings, and various union trust funds, as required by a collective-bargaining agreement with respondent union, the union and respondent trustees filed suit against Bateson in the name of the United States for the amount claimed due under the payment bond. The District Court granted summary judgment for respondents, and the Court of Appeals affirmed, holding that although Colquitt was "technically a sub-subcontractor," nevertheless it should be considered a "subcontractor" for purposes of payment bond recovery by its employees or their representatives, since it was performing "an integral and significant part of [Bateson's] contract" with the Government. Held: Colquitt's employees were not protected by the Miller Act payment bond, since they did not have a contractual relationship either with Bateson or with Pierce or any other "subcontractor" and since Colquitt cannot be considered a "subcontractor." Clifford F. MacEvoy Co. v. United States ex rel. Calvin Tomkins Co., 322 U.S. 102, 64 S.Ct. 890, 88 L.Ed. 1163, and F. D. Rich Co. v. United States ex rel. Industrial Lumber Co., 417 U.S. 116, 94 S.Ct. 2157, 40 L.Ed.2d 703, distinguished. As confirmed by the Miller Act's legislative h story, the word "subcontractor" as used in the Act must be construed as being limited to meaning one who contracts with a prime contractor. Pp. 875-878.
179 U.S.App.D.C. 325, 551 F.2d 1284, reversed.
Jack Rephan, Washington, D.C., for petitioners.
Donald J. Capuano, Washington, D.C., for respondents.
Mr. Justice MARSHALL delivered the opinion of the Court.
1
Under the Miller Act, 49 Stat. 793, as amended, 80 Stat. 1139, 40 U.S.C. § 270a et seq., a prime contractor on a federal construction project involving over $2,000 must post a payment bond to protect those who have a direct contractual relationship with either the prime contractor or a "subcontractor." The issue in this case is whether the term "subcontractor," as used in the Act, encompasses a firm that is technically a "sub-subcontractor."
2
The material facts are not in dispute. Petitioner J. W. Bateson Co. entered into a contract with the United States for construction of an addition to a hospital and provided a payment bond signed by Bateson's president and by representatives of petitioner sureties. Bateson, the prime contractor, subcontracted with Pierce Associates for a portion of the original work, and Pierce in turn subcontracted with Colquitt Sprinkler Co. for the installation of a sprinkler system, one of the items specified in the contract between Bateson and the United States. Under a collective-bargaining agreement with respondent Road Sprinkler Fitters Local Union No. 669, Colquitt was obligated to pay over amounts withheld from employees' wages for union dues and vacation savings, and to contribute to the union's welfare, pension, and educational trust funds. When Colquitt failed to make any of these payments by the end of the union members' employment with the firm, the union and respondent trustees notified Bateson of the amount that they claimed was due them under the payment bond and then filed suit against Bateson in the name of the United States.
3
The District Court granted summary judgment for respondents, and the Court of Appeals for the District of Columbia Circuit affirmed, 179 U.S.App.D.C. 325, 551 F.2d 1284 (1977). The appellate court recognized that Colquitt, which had a contractual relationship with Pierce but not with Bateson, was "technically a sub-subcontractor," but it concluded nevertheless that Colquitt should be considered a "subcontractor" for purposes of payment bond recovery by its employees or their representatives. Id., at 327, 551 F.2d, at 1286.1 Applying a functional test based on the "substantial[ity] and importan[ce]" of the relationship between Bateson and Colquitt, the court noted that Colquitt was performing on the jobsite "an integral and significant part of [Bateson's] contract" with the Government, that the work "was performed over a substantial period of time," that Bateson had access to Colquitt's payroll records, and that Bateson could have protected itself "through bond or otherwise" against Colquitt's default. Ibid., 179 U.S.App.D.C., at 327, 551 F.2d, at 1286.
4
We granted certiorari, 433 U.S. 907, 97 S.Ct. 2971, 53 L.Ed.2d 1090 (1977), to resolve a conflict between the decision below and the holdings of at least three other Circuits.2 We now reverse.
5
Like the predecessor Heard Act, Act of Aug. 13, 1894, ch. 280, 28 Stat. 278, as amended, Act of Feb. 24, 1905, 33 Stat. 811, the Miller Act was designed to provide an alternative remedy to the mechanics' liens ordinarily available on private construction projects. F. D. Rich Co. v. United States ex rel. Industrial Lumber Co., 417 U.S. 116, 122, 94 S.Ct. 2157, 2161, 40 L.Ed.2d 703 (1974). Because "a lien cannot attach to Government property," persons supplying labor or materials on a federal construction project were to be protected by a payment bond. Id., at 121-122, 94 S.Ct. at 2161. The scope of the Miller Act's protection is limited, however, by a proviso in § 2(a) of the Act that "had no counterpart in the Heard Act." Clifford F. MacEvoy Co. v. United States ex rel. Calvin Tomkins Co., 322 U.S. 102, 107, 64 S.Ct. 890, 894, 88 L.Ed. 1163 (1944). This proviso has the effect of requiring that persons who lack a "contractual relationship express or implied with the [prime] contractor" show a "direct contractual relationship with a subcontractor" in order to recover on the bond. 40 U.S.C. § 270b(a);3 see F. D. Rich Co. v. United States ex rel. Industrial Lumber Co., supra, 417 U.S. at 122, 94 S.Ct., at 2161; Clifford F. MacEvoy Co. v. United States ex rel. Calvin Tomkins Co., supra, 332 U.S. at 107-108, 64 S.Ct., at 893-894. In the instant case it is conceded that Colquitt's employees enjoyed no contractual relationship, "express or implied," with Bateson, and that they did have a "direct contractual relationship" with Colquitt. The question before us, then, is whether Colquitt can be considered a "subcontractor."
6
As we observed in Clifford F. MacEvoy Co. v. United States ex rel. Calvin Tomkins Co., supra, Congress used the word "subcontractor" in the Miller Act in accordance with "usage in the building trades." 322 U.S., at 108-109, 64 S.Ct., at 894; see id., at 10, 64 S.Ct., at 895. In the building trades,
7
"a subcontractor is one who performs for and takes from the prime contractor a specific part of the labor or material requirements of the original contract . . . ." Id., at 109, 64 S.Ct., at 894 (emphasis added).
8
It thus appears that a contract with a prime contractor is a prerequisite to being a "subcontractor."4 This interpretation of the Act's language is confirmed by the legislative history, which leaves no room for doubt about Congress' intent. While relatively brief, the authoritative Committee Reports of both the House of Representatives and the Senate squarely focus on the question at issue here:
9
"A sub-subcontractor may avail himself of the protection of the bond by giving written notice to the contractor, but that is as far as the bill goes. It is not felt that more remote relationships ought to come within the purview of the bond." H.R.Rep.No. 1263, 74th Cong., 1st Sess., 3 (1935); S.Rep.No. 1238, 74th Cong., 1st Sess., 2 (1935).
10
This passage indicates both that Congress understood the difference between "sub-subcontractors" like Colquitt and "subcontractors" like Pierce, and that it intended the scope of protection of a payment bond to extend no further than to sub-subcontractors. See MacEvoy, 322 U.S., at 107-108, 64 S.Ct., at 893-894 and n. 5. There is nothing to the contrary anywhere in the legislative history. Thus, while Colquitt could have claimed against the payment bond had Pierce defaulted in its obligations, the employees of Colquitt were not similarly protected against Colquitt's default, because they did not have a contractual relationship with Pierce or any other "subcontractor."5
11
This view of what was intended in the Miller Act is reinforced by the fact that all reported decisions that have considered the question, except that of the court below and one early District Court decision, have reached the same conclusion.6 Presumably aware of this well-settled body of law dating back almost 20 years, Congress has never moved to modify the Act's coverage. As a result, all of those concerned with Government projects—prime contractors, sureties, various levels of subcontractors and their employees—have been led to assume that the employees of a sub-subcontractor would not be protected by the Miller Act payment bond and to order their affairs accordingly.7 In the absence of some clear indication to the contrary, we should not defeat these reasonable expectations, particularly in view of the importance of certainty with regard to bonding practices on Government construction projects. See generally MacEvoy, supra, at 110-111, 64 S.Ct., at 895.
12
In reaching a result contrary to that of other Courts of Appeals, the court below did not address itself either to the legislative history quoted above or to the conflict among the Circuits that its ruling created. Instead, it focused primarily on the substantiality and importance of the relationship between Colquitt and Bateson, see supra at 588, relying for this approach on our decisions in MacEvoy and F. D. Rich Co. v. United States ex rel. Industrial Lumber C . While those cases did involve the scope of the term "subcontractor" in the § 2(a) proviso, they arose in situations in which the firm at issue, unlike Colquitt, had a direct contractual relationship with the prime contractor. The question in both cases was whether a supplier of materials to the prime contractor could be considered a "subcontractor,"8 and on this question an absence of dispositive statutory language and legislative history led the Court ultimately to look to "functional" considerations. 417 U.S., at 123-124, 94 S.Ct., at 2162; see 322 U.S., at 110-111, 64 S.Ct., at 895. In the instant case, by contrast, the traditional tools of statutory construction provide a definitive answer to the question before us, and hence it would be inappropriate to utilize the approach relied on by the Court of Appeals.
13
In concluding that the word "subcontractor" must be limited in meaning to one who contracts with a prime contractor, we not unmindful of our obligation to construe the "highly remedial" Miller Act "liberal[ly] . . . in order properly to effectuate the Congressional intent to protect those whose labor and materials go into public projects." MacEvoy, supra, at 107, 64 S.Ct., at 893. As we wrote in MacEvoy, however, "such a salutary policy does not justify ignoring plain words of limitation and imposing wholesale liability on payment bonds. . . . [W]e cannot disregard the limitations on liability which Congress intended to impose and did impose in the proviso of § 2(a)." 322 U.S., at 107, 64 S.Ct., at 893. It was Congress that drew a line between sub-subcontractors and those in "more remote relationships" to the prime contractor. H.R.Rep.No.1263, supra, at 3; S.Rep.No. 1238, supra, at 2; MacEvoy, supra, at 108, 64 S.Ct., at 894; Rich, 417 U.S., at 122, 94 S.Ct., at 2161. If the scope of protection afforded by a Miller Act payment bond is to be extended, it is Congress that must make the change.
The judgment of the Court of Appeals is
14
Reversed.
15
Mr. Justice BLACKMUN took no part in the consideration or decision of this case.
16
Mr. Justice STEVENS, with whom Mr. Justice BRENNAN joins, dissenting.
17
The Court's narrow reading of the word "subcontractor" creates a system of protection for construction workers that I cannot believe Congress intended. It drives a wedge between employees working side by side on tasks equally vital to "the prosecution of the work." 40 U.S.C. § 270a(a)(2). Under the Court's reading, those who work for the general contractor or for a "first-tier" subcontractor are protected by the bond; those who work for other subcontractors are unprotected.
18
The Court's construction of the statute derives strong support from the statement in the Committee Reports distinguishing between "sub-subcontractors" and "more remote relationships." Nevertheless, I am persuaded that contrary evidence of congressional intent outweighs the isolated statement upon which the Court's decision primarily rests. I shall therefore first explain why I think the Act protects every person who has supplied labor or material in the prosecution of the work provided for in the prime contract. Thereafter, I shall explain why I believe the excerpt from the Committee Reports does not compel a contrary conclusion.
19
* The Miller Act, like the Heard Act which preceded it, covers "all persons supplying labor and material in the prosecution of the work provided for in [a federal construction] contract."1 Unless this language were to be narrowly read to cover only persons supplying labor or materials directly o the general contractor—and no one suggests that such a narrow reading is proper—it plainly identifies "the prosecution of the work" as the proper test of coverage. This Court so read the comparable language in the Heard Act in United States ex rel. Hill v. American Surety Co., 200 U.S. 197, 26 S.Ct. 168, 50 L.Ed.2d 437.
20
In that case the Court recognized that a "liberal interpretation" was needed to further "the manifest purpose of the statute to require that material and labor actually contributed to the construction of the public building shall be paid for and to provide a security to that end." Id., at 203, 26 S.Ct., at 170.2 The Hill Court therefore allowed recovery to all who supplied labor to the contractor, whether directly or indirectly through a subcontractor.3
21
The question at the heart of this case is whether Congress intended the Miller Act to cut back the coverage of the Heard Act. The fact that there was no significant change in the statutory language identifying the persons protected by the Act is a sufficient reason for concluding that no change in coverage was intended.4 This conclusion is confirmed by a study of the entire legislative history of the Miller Act.
22
The Miller Act was primarily designed to speed workmen's recoveries under the Heard Act by correcting procedural flaws in the old Act. Not a word in the legislative history hinted that the coverage of the Heard Act was too broad. To the contrary, the proposed revision was consistently presented as a measure to strengthen the existing rights of laborers on public works.5 "The most radical changes made in the existing law by these bills," Congressman Miller, the proponent of the Act, explained, "is that we provide in this bill for two bonds; one a performance bond to the Government, and the other a payment bond."6
23
While Congress intended to speed the recoveries of protected workers, it sought to do so within the framework of existing law. Witnesses testifying in support of the Act urged Congress to preserve as much language from the Heard Act as possible, in order that past judicial interpretations would continue to apply under the new Act.7 Congressman Miller himself noted that the Committee was "rather loath to disturb existing law and existing court decisions where we can correct the difficulty without doing so."8 Thus it is especially significant that the drafters lifted bodily from the Heard Act the coverage provision that had already been construed in Hill.
24
The historical context in which the statute was enacted confirms this analysis. The Miller Act was passed during the depression of the 1930's. Few construction laborers could then find work except on Government projects. Reform of the Heard Act drew urgency from the ironic discovery that precious construction jobs too often proved worthless when an irresponsible subcontractor was unable to pay his workers. An exchange between Senators Walsh and McCarran about the Miller Act shows the sentiments of the day:
25
"Mr. WALSH. Mr. President, . . . the investigation conducted by the subcommittee of the Committee on Education and Labor showed a deplorable condition with reference to the way employees on public buildings were defrauded and cheated of their wages, and any measure that will tend to strengthen their rights and help them to secure their compensation is justified.
26
"Mr. McCARRAN. That is the object of the pending bill . . . ." 79 Cong.Rec. 13383 (1935).
27
The language of the Miller Act is entirely consistent with the obvious legislative intent to preserve the substantive protections of the Heard Act. The Miller Act extends coverage to "all persons supplying labor and material IN THE PROSECUTION OF THE WORK PROVIDED FOR IN [THE] CONTRACT . . . ."9 This coverage is comparable to that afforded by many state mechanic's lien statutes. See generally Note, Mechanics' Liens and Surety Bonds in the Building Trades, 68 Yale L.J. 138 (1958). The purpose of both the Heard Act and the Miller Act was to protect persons supplying labor or materials for federal construction projects, which are not subject to state mechanics' liens.10 Giving an ordinary meaning to the language used by both Acts will achieve that purpose.
28
The proviso to § 2(a) of the Miller Act, which requires persons having a direct relationship with a subcontractor to give written notice of his claim to the prime contractor, does not narrow the coverage of the statute. It merely requires persons covered by the bond to give the required notice in order to preserve their protection.11
29
It is true, of course, that it would be anomalous to require that notice be given by employees of first-tier subcontractors but not by employees of second-tier subcontractors.12 Clifford F. MacEvoy Co. v. United States ex rel. Calvin Tomkins Co., 322 U.S. 102, 108, 64 S.Ct. 890, 88 L.Ed. 1163. But that anomaly is entirely avoided if the term "subcontractor" is read to refer to any person or firm that has contracted to do any part of the work provided for in the prime contract, whether that person has dealt directly with the prime contractor or with another subcontractor. In the common usage of the construction trades, the term "subcontractor" does not include ordinary laborers or materialmen. Id., at 109, 64 S.Ct. at 894. But the term is often used to describe subordinate contractors who have accepted contractual responsibility for a portion of the work covered by the basic contract, no matter how many subcontractors lie between the general contractor and the subcontractor who actually does the work.13
30
State courts, which have more occasion to deal with construction contracts than we do, recognize that a generic use of the term subcontractor is entirely proper. For example Colorado's construction bond law protects persons furnishing labor or materials to a "contractor, or his subcontractor." Despite the personal pronoun, the Colorado Supreme Court has held that the bond covers those who deal with a "second-tier" subcontractor, saying:
31
"To construe the term 'subcontractor' so as to exclude a 'sub-subcontractor' from the protection granted by the contractor's bond statute would require us to ignore the purpose of the statute. Since the benefits of our mechanic's lien act do not apply to projects constructed by governmental agencies, a remedy similar to our mechanic's lien statute was provided by the legislature for the protection of those furnishing supplies or material for such projects. . . . The statute stands in lieu of the mechanic's lien statute, and is designed to protect those who supply labor and materials for public works." South-Way Constr. Co. v. Adams City Serv., 169 Colo. 513, 516-517, 458 P.2d 250, 251 (1969).
32
Other courts have taken a similar approach. See, e. g., Nash Eng. Co. v. Marcy Realty Corp., 222 Ind. 396, 54 N.E.2d 263 (1944); Bumb v. Petersmith Controls, Inc., 377 F.2d 817 (CA9 1967) (remote subcontractor is protected "subcontractor" under California law); Hey Kil y Man, Inc. v. Azalea Gardens Apts., 333 So.2d 48, 50-51 (Fla.App.1976). See also Note, 45 Harv.L.Rev. 1236, 1238-1239 (1932) (using "subcontractor" generically in noting a trend favoring bond coverage for "remote subcontractors").
33
Thus, if we consider the language of the statute, its broad purpose to provide protection comparable to that afforded by state mechanic's lien laws on private contracts, and its specific purpose to provide protection for laborers performing work on federal projects, we must conclude that employees of a "sub-subcontractor" who actually perform work on the job are protected.
II
34
The contrary argument rests almost entirely14 on a statement in the Committee Reports that draws a distinction between a "sub-subcontractor" and "more remote relationships."15 I believe the significance of that statement has been overemphasized.
35
Those who have participated in the making of legislative history know that congressional reports ometimes contain statements that are merely intended to summarize portions of the hearings or to answer testimony expressing specific concerns about a bill. For this reason, the hearings should be examined in order to understand the excerpt on which the Court relies. In three days of testimony, the coverage of the Act was mentioned only briefly. A witness for a surety company raised the specter of remote materialmen seeking to recover as "subcontractors," an idea Congressman Miller quickly rejected:
36
"Colonel PROCTOR. . . . [If] it will cover everybody all the way down the line whether the work goes into the job or not you have an insurance policy and not a surety. For example, if it will cover the labor of the quarryman that strips the quarry, that he is a subcontractor to the man that cuts the stone, that he is a subcontractor with the man that lays the stone and he is a subcontractor with the general contractor, you have a situation there that is an insurance policy and not a bond.
37
"Mr. MILLER. We are not figuring in going into all the subcontractors." Hearings, supra n. 6, at 61-62 (emphasis added).
38
This colloquy was concerned with the danger that the term "subcontractor" might be used loosely to describe the suppliers or employees of materialmen. It was that danger that I believe the Committee Report was intended to forestall. Obviously, suppliers or employees of materialmen do not provide "work [that] goes into the job." They are not considered "subcontractors" under the most common usage in the construction trades, as this Court recognized when it construed the Miller Act to bar the claims of remote materialmen and their employees. Clifford F. MacEvoy Co. v. United States ex rel. Calvin Tomkins Co., 322 U.S. 102, 62 S.Ct. 890, 88 L.Ed. 1163.
39
It is the "remote relationship" of persons like the quarryman and the stonecutter mentioned in the hearings that I believe the author of the Committee Report intended to exclude from the statute. Since the wording of the statute is itself adequate to effectuate this intent, there is no reason to give further effect to the unnecessarily broad language used by the author of the Committee Report to allay the narrow concern identified in the Committee hearings.16 If Congress had intended to do more than allay that concern—if it had intended to cut back on the coverage of the Heard Act—I am convinced that it would have used statutory language to accomplish its purpose.17
40
In sum, while I cannot unequivocally assert that my explanation of the statement in the Committee Report is correct, the apparent genesis of the statement casts sufficient doubt on its intended purpose to prevent it from overriding what I regard as compelling evidence of a contrary congressional intent.
41
I respectfully dissent.
1
The right of trustees of union trust funds to assert a claim against a Miller Act payment bond on behalf of employees was established in United States ex rel. Sherman v. Carter, 353 U.S. 210, 218-220, 77 S.Ct. 793, 797-798, 1 L.Ed.2d 776 (1957). That case also held that amounts which the employer agreed to contribute to union trust funds could be recovered by the employees or their representatives under the payment bond. See id., at 217-218, 77 S.Ct., at 797.
2
United States ex rel. Powers Regulator Co. v. Hartford Accident & Indemnity Co., 376 F.2d 811 (CA1 1967); United States ex rel. W. J. Halloran Steel Erection Co. v. Frederick Raff Co., 271 F.2d 415 (CA1 1959); Fidelity & Deposit Co. v. Harris, 360 F.2d 402, 407-409 (CA9 1966); Elmer v. United States Fidelity & Guaranty Co., 275 F.2d 89 (CA5), cert. denied, 363 U.S. 843, 80 S.Ct. 1612, 4 L.Ed.2d 1727 (1960). See also United States ex rel. DuKane Corp. v. United States Fidelity & Guaranty Co., 422 F.2d 597, 599-600, and n. 4 (CA4 1970).
3
Section 2(a) of the Miller Act, as set forth in 40 U.S.C. § 270b(a), provides in full:
"Every person who has furnished labor or material in the prosecution of the work provided for in [the] contract, in respect of which a payment bond is furnished under section 270a of this title and who has not been paid in full therefor before the expiration of a period of ninety days after the day on which the last of the labor was done or performed by him or material was furnished or supplied by him for which such claim is made, shall have the right to sue on such payment bond for the amount, or the balance thereof, unpaid at the time of institution of such suit and to prosecute said action to final execution and judgment for the sum or sums justly due him: Provided, however, That any person having direct contractual relationship with a subcontractor but no contractual relationship express or implied with the contractor furnishing said payment bond shall have a right of action upon the said payment bond upon giving written notice to said contractor within ninety days from the date on which such person did or performed the last of the labor or furnished or supplied the last of the material for which such claim is made, stating with substantial accuracy the amount claimed and the name of the party to whom the material was furnished or supplied or for whom the labor was done or performed. Such notice shall be served by mailing the same by registered mail, postage prepaid, in an envelop[e] addressed to the contractor at any place he maintains an office or conducts his business, or his residence, or in any manner in which the United States marshal of the district in which the public improvement is situated is authorized by law to serve summons."
4
The structure of the § 2(a) proviso as it relates to notice lends further support to this view. Under the proviso, those having a claim against a "subcontractor" must give written notice to the prime contractor within 90 days of completing work on the job in order to recover against the payment bond. 40 U.S.C. § 270b(a); see n. 3, supra. This requirement "permits the prime contractor, after waiting ninety days, safely to pay his subcontractors without fear of additional liability to sub-subcontractors or materialmen." United States ex rel. Munroe-Lang-Stroth, Inc. v. Praught, 270 F.2d 235, 238 (CA1 1959). The notice provision thus prevents both "double payments" by prime contractors and the alternative of "interminable delay in settlements between contractors and subcontractors." United States ex rel. J. A. Edwards & Co. v. Thompson Construction Corp., 273 F.2d 873, 875-876 (CA2 1959), cert. denied, 362 U.S. 951, 80 S.Ct. 864, 4 L.Ed.2d 869 (1960).
If the term "subcontractor" in the proviso had been meant to include sub-subcontractors like Colquitt, it seems likely that notice would have been required, not only to the prime contractor, but also to intermediate subcontractors like Pierce. The prime contractor or his surety, while having initial responsibility for payment of the claimant, would probably in turn either withhold that amount from, or file a claim against, a bond or indemnity furnished by, the intermediate subcontractor. (Here, for example, it appears that Pierce had agreed to indemnify Bateson against such losses. Brief for Petitioners 18 n. 15.) Hence notice to the intermediate subcontractor would serve the same purpose as does notice to the prime contractor: prevention of double payments (e. g., Pierce making full payment to Colquitt, then having to indemnify Bateson for amounts owed by Colquitt to its employees) or delayed settlements.
5
We note that Colquitt's employees also would not have been protected under the mechanic's lien statutes of many States. See supra, at 589. While these statutes have always varied widely, it appears that a large number of States, including some of the most commercially significant States, have restricted mechanics' liens to persons dealing directly with the prim contractor or with a subcontractor who dealt with the prime contractor. See, e. g., Battista v. Horton, Myers & Raymond, 76 U.S.App.D.C. 1, 128 F.2d 29, 31 (1942) (District of Columbia mechanic's lien statute); Wynkoop v. People, 1 App.Div.2d 620, 153 N.Y.S.2d 836 (1956), summarily aff'd, 4 N.Y.2d 892, 174 N.Y.S.2d 470, 150 N.E.2d 771 (1958) (New York statute restricting mechanics' liens to those "performing labor for or furnishing materials to a contractor [or] his subcontractor"). See generally Note, Mechanics' Liens and Surety Bonds in the Building Trades, 68 Yale L.J. 138, 147-148 (1958).
6
See cases cited in n. 2, supra; Aetna Ins. Co. v. Southern, Waldrip & Harvick, 198 F.Supp. 505 (N.D.Cal.1961); United States ex rel. Whitmore Oxygen Co. v. Idaho Crane & Rigging Co., 193 F.Supp. 802 (D.C. Idaho 1961); United States ex rel. Jonathan Handy Co. v. Deschenes Construction Co., 188 F.Supp. 270 (D.C.Mass.1960); United States ex rel. Newport News Shipbuilding & Dry Dock Co. v. Blount Bros. Construction Co., 168 F.Supp. 407 (D.C.Md.1958). Contra, McGregor Architectural Iron Co. v. Merritt-Chapman & Scott Corp.,150 F.Supp. 323 (M.D. Pa.1957). See also H. Cohen, Public Construction Contracts and the Law § 7.9, p. 208 (1961); 8 J. McBride & I. Wachtel, Government Contracts § 49.320[2] (1977); R. Shealey, Law of Government Contracts § 143A, p. 187 (3d ed. 1938); Forster & DeBenedictis, Construction Contracts in Government Contracts Practice § 14.13, pp. 683-684 (1964); Stickells, Bonds of Contractors on Federal Public Works: The Miller Act, 36 B.U.L.Rev. 499, 512-516 (1956); Note, supra, n. 5, at 164.
7
In the instant case, it appears that all of the affected parties arranged their affairs on the assumption that Colquitt's employees would not be covered by the payment bond. Bateson required an indemnity agreement from Pierce, Brief for Petitioners 18 n. 15, doubtless in part to protect Bateson from claims against the payment bond made by those contracting with Pierce. But Pierce did not require a similar agreement from Colquitt, ibid., presumably because Pierce did not think that Colquitt's employees, on Colquitt's default, would have recourse against Bateson's payment bond. Finally, the agreement between Colquitt and the union contained a provision, which the union ultimately chose not to enforce, requiring Colquitt to post a bond to guarantee the various payments that it was required to make to the union and its trust funds. App. 13; id., at 49 (affidavit of union trustee).
8
In MacEvoy we held that a firm which had merely supplied materials to the prime contractor could not be considered a "subcontractor." In Rich we concluded that a firm which had contracted with the prime contractor both to install certain items in a housing project and to supply materials for the project was a "subcontractor."
1
40 U.S.C. § 270a(a)(2). Almost identical language in the Heard Act covered "all persons supplying [a contractor or contractors] labor and materials in the prosecution of the work provided for in [a federal construction] contract." Act of Aug. 13, 1894, ch. 280, 28 Stat. 278, as amended, 40 U.S.C. § 270 (1926 ed.).
2
The purpose of the Act had been explained in the House Report:
"Your committee has fully considered the above bill, and find that there is no law now in existence for the protection of mechanics and material-men in this class of cases, as it is contrary to allow mechanics' or material-men's liens on public buildings or public works, and in many cases person or persons entering into contracts with the United States for the building of public buildings are wholly insolvent at the time or at the completion of such work, and thereby persons furnishing material or labor are without remedy.
"In all such cases the United States requires the usual penal bond from the contractor or contractors of public buildings or works with good and sufficient security for the protection of the Government, and it seems to the committee that it is nothing more than just that the persons furnishing material or labor for the construction of such work should also be protected in the premises, and that there should be an additional obligation in all such bonds to the effect that the persons furnishing material and labor for the construction of public building or work should have the right to bring suit on said bond . . . ." H.R.Rep. No. 97, 53d Cong., 1st Sess., 1 (1893).
This excerpt is significant, not only because it explains the origin of the legislation, but also because the first sentence illustrates the care with which committee reports are sometimes edited. Cf. n. 16, infra.
3
"In considering the statute and determining the scope of the bond divergent views have been urged upon the court. Upon the one hand it is insisted that the bond is to be strictly construed and a recovery limited to those who have furnished material or labor directly to the contractor, and upon the other that a more liberal construction be given and a recovery permitted to those who have furnished labor and materials which have been used in the prosecution of the work, whether furnished under the contract directly to the contractor, or to a subcontractor.
* * * * *
"The courts of this country have generally given to statutes intending to secure to those furnishing labor and supplies for the construction of buildings a liberal interpretation, with a view of effecting their purpose to require payment to those who have contributed by their labor or material to the erection of buildings to be owned and enjoyed by those who profit by the contribution of such labor or materials. . . .
* * * * *
"Looking to the terms of this statute in its original form, and as amended in 1905, we find the same Congressional purpose to require payment for material and labor which have been furnished for the construction of public works." 200 U.S., at 202-204, 26 S.Ct., at 169-170.
4
In general, the principles that governed the Heard Act also control the Miller Act. See Fleisher Eng. & Constr. Co. v. United States ex rel. Hallenbeck, 311 U.S. 15, 18, 61 S.Ct. 81, 83, 85 L.Ed. 12.
5
"The purpose sought to be accomplished" by the Act was stated by the Treasury Department, and the statement was adopted by the House Report:
"The major purpose of the bill seems to be to afford greater protection to subcontractors, laborers, and materialmen by shortening the period within which action may be instituted by them against the surety. With this purpose the Treasury Department is fully in accord, as there have been many instances in which several years have elapsed after the performance of the work before a judicial remedy was available under the existing law." H.R.Rep. No. 1263, 74th Cong., 1st Sess., 1-2 (1935) (quoting a letter from the Treasury Department).
An identical passage appears in the Senate Report, which merely reprints the House Report. S.Rep. No. 1238, 74th Cong., 1st Sess., 1 (1935). Because there are no substantial differences between them, I shall refer only to the House Report.
6
Hearings on Bonds of Contractors on Public Works before the House Committee on the Judiciary, 74th Cong., 1st Sess., 67 (1935).
7
One witness told the Committee:
"The Heard Act has been on the statute books since 1905. Its predecessor had been in effect since August 1894. Now, in that forty-odd years the surety companies and the public generally have spent hundreds of thousands of dollars in finding out just what that act means. As I say, it has been called to the attention of courts hundreds of times and the decisions rendered have cost us lots of money and I do not think there is any other statute on the books that has been so thoroughly analyzed and construed. You might say every clause or every word has been examined by some court, some place, some time. We all know it and it is unusual now for any controversy to arise over the fundamental part of the law. The only controversy in the Heard Act suit is whether the claimant has a good claim or whether he has not." Id., at 49-50.
Another witness concurred in this statement. Id., at 59.
8
Id., at 102. Congressman Miller went on to state that he would have preferred simply to amend the Heard Act, but that he was eventually persuaded that a more horough revision was necessary. Ibid.
9
40 U.S.C. § 270a(a)(2). Cf. United States ex rel. Hill v. American Surety Co., 200 U.S. 197, 204, 26 S.Ct. 168, 170, 50 L.Ed.2d 437:
"[A]ll persons supplying the contractor with labor or materials in the prosecution of the work provided for in the contract are to be protected. The source of the labor or material is not indicated or circumscribed. It is only required to be 'supplied' to the contractor in the prosecution of the work provided for. How supplied is not stated, and could only be known as the work advanced and the labor and material are furnished.
"If a construction is given to the bond so limiting the obligation incurred as to permit only those to recover who have contracted directly with the principal, it may happen that the material and labor which have contributed to the structure will not be paid for, owing to the default of subcontractors and the manifest purpose of the statute to require compensation to those who have supplied such labor or material will be defeated."
10
"As against the United States, no lien can be provided upon its public buildings or grounds, and it was the purpose of this act to substitute the obligation of a bond for the security which might otherwise be obtained by attaching a lien to the property of an individual." Id., at 203, 26 S.Ct., at 170.
11
The proviso states:
"Provided, however, That any person having direct contractual relationship with a subcontractor but no contractual relationship express or implied with the contractor furnishing said payment bond shall have a right of action upon the said payment bond upon giving written notice to said contractor within ninety days from the date on which such person did or performed the last of the labor or furnished or supplied the last of the material for which such claim is made . . . .' 40 U.S.C. § 270b(a).
12
Such an anomaly is produced by a narrow reading of the proviso to encompass only persons dealing with "first-tier" subcontractors. Under the narrow reading, those dealing with first-tier subcontractors must give notice, while those dealing with second-tier subcontractors need not. The Court avoids this anomaly by cutting back on the coverage provision. Rather than letting the tail wag the dog, it is more sensible to read the notice provision broadly, to match the breadth of the coverage provision.
13
The Court relies on a quotation from Clifford F. MacEvoy Co. v. United States ex rel. Calvin Tomkins Co., 322 U.S. 102, 64 S.Ct. 890, 88 L.Ed. 1163, declaring that "a subcontractor is one who performs for and takes from the prime contractor a specific part of the labor or material requirements of the original contract, thus excluding ordinary laborers and materialmen." Id., at 109, 64 S.Ct., at 894. The Court italicizes the dictum and omits the holding. Ante, at 590. I agree with the holding; ordinary laborers and materialmen who do not deal with the prime contractor or a subcontractor do not supply labor or materials "in the prosecution of the work." Cf. MacEvoy, supra, at 107, 64 S.Ct. at 893 (leaving question open). The dictum is unfortunately worded, but it does not contradict my view. Ultimately, a second-tier subcontractor who takes a portion of the contract takes it "from the prime contractor," although he takes it indirectly.
14
It has been argued that Congress was unwilling to impose liability on sureties for a long chain of relationships. But this argument ignores the control that sureties and general contractors have over their subcontractors. They may refuse to deal with subcontractors who do not indemnify them against remote claims. They may even require a bond from each subcontractor. In fact, because the general contractor is liable, even under the Court's view, for claims against subcontractors in the first tier, indemnity agreements between general contractors and their subcontractors are common today. One was required in the present case. Ante, at 593, n.7. My reading of the statute would simply lead cautious subcontractors to demand similar guarantees from their subcontractors.
There is no reason to fear that sureties' liability will grow beyond their control or their ability to estimate. The cost of the entire project provides a basis for estimating the aggregate contingent liability.
In addition, the Court suggests that the Miller Act would have required laborers to give notice to intermediate subcontractors as well as the general contractor if a more generous reading of the statute had been contemplated. Ante, at 590-591, n.4. But the drafters were understandably worried that many unwary workers would forfeit their protection if complicated notice requirements were imposed. Indeed, the Treasury Department opposed any notice requirement for just this reason:
"[O]ver nine-tenths of your laborers and the material men doing business on a small scale that were not in constant touch with their lawyers would not know of the requirement, and they would wake up to find that their period had expired within which to give such notice, and they would be barred." Hearings, supra n. 6, at 99-100. See also id., at 103, 30-31, and 36-37.
Requiring notice to the surety as well as to the general contractor would have protected sureties from deceitful general contractors, and a requirement of this nature was suggested to the Committee. Id., at 63. The Committee rejected that suggestion. Forcing the laborer to notify several parties is an added burden that increases the danger of lost claims. Congress could have concluded that a single notice requirement was all that should be imposed on workers and small businessmen.
As a practical matter, no prejudice is likely to flow from this omission. If the bond is held to cover claims against remote subcontractors, proximate subcontractors will no doubt be required to indemnify the general contractor. In return for the indemnity, these subcontractors will no doubt demand that the general contractor promptly transmit any statutory notice he receives.
15
"A sub-subcontractor may avail himself of the protection of the bond by giving written notice to the contractor, but that is as far as the bill goes. It is not felt that more remote relationships ought to come within the purview of the bond." H.R.Rep. No. 1263, 74th Cong., 1st Sess., 3 (1935).
16
As is demonstrated by the legislative history of the Heard Act, see n.2, supra, a committee report is not edited as carefully as the bill itself.
17
Unlike the Court, I would not put great weight on the industry's longstanding "assumption" about the law. Ante, at 592-593, and n.7. For many years after passage of the Miller Act, no court ratified this assumption, and the cases since the mid-1950's have been divided. The Court notes three Circuits that have supported the industry's view and one that has attacked it. Ante, at 588-589, n.2. It finds a similar pattern among the District Courts: four in favor and one opposed. Ante, at 592 n.6. The preponderance of authority supports the industry, but the cases hardly justify a claim that the law was "well settled" or certain before today. The fact that this case is before us argues to the contrary, for this Court seldom grants certiorari to decide "well-settled" questions.
| 78
|
434 U.S. 542
98 S.Ct. 849
55 L.Ed.2d 14
Rickey Lee DURST et al., Petitioners,v.UNITED STATES.
No. 76-5935.
Argued Dec. 5, 1977.
Decided Feb. 22, 1978.
Syllabus
Petitioners, youth offenders, pleaded guilty to various federal offenses and, under § 5010(a) of the Federal Youth Corrections Act (YCA), were given suspended sentences and placed on probation, which was conditioned on payment of fines and in one instance on making restitution. Their convictions were affirmed in the courts below. While now conceding that restitution is a permissible condition of probation under the YCA, petitioners contend that a sentence of probation under § 5010(a) is a substitute for any other penalty provision, and that since § 5010(a) does not expressly authorize fines, the authority to impose them cannot be imputed from any other penalty provision. They argue, moreover, that a fine is necessarily punitive and contrary to the rehabilitative goals of the YCA. Held : When a youth offender is placed on probation under § 5010(a), restitution may be required, and, when the otherwise applicable penalty provision permits, a fine may be imposed as conditions of probation. Pp. 549-554.
(a) Though the language of § 5010(a) neither grants nor withholds the authority to impose a fine or to order restitution, § 5023(a) of the YCA incorporates by reference the authority conferred under the general probation statute, 18 U.S.C. § 3651 (1976 ed.), to permit such an exaction, and it is clear from the YCA's legislative history that Congress' purpose in adopting § 5023(a) was to assure that a sentence under § 5010(a) would not displace the authority under § 3651 to impose a fine and order restitution as conditions of probation. Pp. 549-553.
(b) In preserving the authority to impose a fine as a condition of probation Congress necessarily concluded that such a condition comports with YCA's rehabilitative goals. Pp. 553-554.
4 Cir., 549 F.2d 799, affirmed.
Michael S. Frisch, for petitioners, pro hac vice, by special leave of Court.
Sol. Gen. Wade H. McCree, Jr., Detroit, Mich., for respondent.
Mr. Justice BRENNAN delivered the opinion of the Court.
1
We granted certiorari, 430 U.S. 929, 97 S.Ct. 1547, 51 L.Ed.2d 772 (1977), to decide whether a trial judge (or designated United States Magistrate) who suspends a sentence of commitment and places a youth offender on probation pursuant to § 5010(a) of the Federal Youth Corrections Act (YCA), 18 U.S.C. § 5005 et seq. (1976 ed.), may impose a fine, or require restitution, or both, as conditions of probation.1
2
Each of the five petitioners pleaded guilty in a separate proceeding before a United States Magistrate to an offense for which penalties of fine or imprisonment or both are provided. Petitioners Durst and Rice pleaded guilty to obstruction of the mails in violation of 18 U.S.C. § 1701 (1976 ed.). Petitioners Blystone and Pinnick pleaded guilty to stealing property with a value less than $100 from a Government reservation in violation of 18 U.S.C. § 661 (1976 ed.). Petitioner Flakes pleaded guilty to theft of property belonging to the United States with a value less than $100 in violation of 18 U.S.C. § 641 (1976 ed.). Each petitioner was sentenced by a Magistrate, under § 5010(a), to probation and a suspended sentence of imprisonment.2 Petitioner Flakes was ordered to pay a fine of $50 as a condition of probation and each of the others $100. Petitioner Durst was also ordered to make restitution, in the amount of $160, as a condition of probation.
3
Each petitioner appealed his sentence to the United States District Court for the District of Maryland, which consolidated and affirmed the appeals. Crim.Action No. N-75-0828 (June 25, 1976). The United States Court of Appeals for the Fourth Circuit affirmed in an unpublished per curiam opinion, No. 76-1905 (Dec. 9, 1976), judgt. order reported at 549 F.2d 799, relying on its earlier decision in United States v. Oliver, 546 F.2d 1096 (1976), cert. pending No. 76-5632, which had held that imposition of a fine as a condition of probation was consistent with the YCA. In addition, the per curiam in the instant case stated: "For the reasons expressed in Oliver, we believe that a requirement of restitution is also consistent." App. 2. We agree that, when placing a youth offender on probation under § 5010(a), the sentencing judge may require restitution, and, when the otherwise applicable penalty provision permits, impose a fine as a condition of probation, and therefore affirm the judgment of the Court of Appeals.
4
* The YCA is primarily an outgrowth of recommendations of the Judicial Conference of the United States, see Dorszynski v. United States, 418 U.S. 424, 432, 94 S.Ct. 3042, 3048, 41 L.Ed.2d 855 (1974), designed to reduce criminality among youth. Congress found that between the ages of 16 and 22, "special factors operated to produce habitual criminals. [Moreover,] then-existing methods of treating criminally inclined youths were found inadequate in avoiding recidivism." Id., at 432-433, 94 S.Ct., at 3048 (citation omitted).
5
The core concept of the YCA, like that of England's Borstal System upon which it is modeled,3 is that rehabilitative treatment should be substituted for retribution as a sentencing goal.4 Both the Borstal System and the YCA incorporate three features thought essential to the operation of a successful rehabilitative treatment program: flexibility in choosing among a variety of treatment settings and programs tailored to individual needs;5 separation of youth offenders from hardened criminals;6 and careful and flexible control of the duration of commitment and of supervised release.7 The YCA established the framework for creation of a treatment program incorporating these features, and, as an alternative to existing sentencing ptions, authorized a sentence of commitment to the Attorney General for treatment under the Act. Dorszynski, supra, 418 U.S. at 437-440, 94 S.Ct. at 3049-3051.
6
The Act contains four provisions regarding sentencing. Section 5010(a) provides that "[i]f the court is of the opinion that the youth offender does not need commitment," imposition or execution of sentence might be suspended and the youth offender placed on probation. Sections 5010(b) and (c) provide that, if the youth is to be committed, the court might "in lieu of the penalty of imprisonment otherwise provided by law," sentence the youth offender to the custody of the Attorney General for treatment and supervision. Section 5010(d) provides that "[i]f the court shall find that the youth offender will not derive benefit from treatment under subsection (b) or (c)," the court may sentence the youth offender "under any other applicable penalty provision."8
7
A particularly valuable benefit for the offender sentenced under the YCA is the prospect of obtaining a certificate setting aside his conviction. A certificate automatically issues when a youth committed to the custody of the Attorney General under § 5010(b) or § 5010(c) is unconditionally released prior to expiration of the maximum sentence imposed. 18 U.S.C. § 5021(a) (1976 ed.). In 1961, the YCA was amended to extend the benefit of a certificate to youths sentenced to probat on under § 5010(a) when the court unconditionally discharges the youth prior to expiration of the sentence of probation imposed. Act of Oct. 3, 1961, Pub.L. No. 87-336, 75 Stat. 750 (codified at 18 U.S.C. § 5021(b) (1976 ed.)).
8
Petitioners make two arguments in support of their submission that sentencing judges choosing the option under § 5010(a) of suspending sentence and placing the youth offender on probation may not impose a fine as a condition of probation.9 First, they argue that the sentencing provisions of the YCA are alternatives to other sentencing provisions and therefore a substitute for the penalties provided in the statute for violation of which the youth offender was convicted; since § 5010(a) does not explicitly authorize the imposition of fines, sentencing judges have no authority to impose them when sentencing under that provision. Second, they argue that fines are necessarily punitive and their imposition therefore inconsistent with the rehabilitative goals of the YCA. Neither of these arguments has merit.
II
9
The language of § 5010(a) neither grants nor withholds the authority to impose fines or orders of restitution. Another provision of the YCA, however, § 5023(a), incorporates by reference the authority conferred under the general probation statute to permit such exactions. Section 5023(a) provides: "Nothing in [the Act] shall limit or affect the power of any court to suspend the imposition or execution of any sentence and place a youth offender on probation or be construed in any wise to amend, repeal, or affect the provisions of chapter 231 [§§ 3651-3656] of this title . . . relative to probation." Chapter 231 is the general probation statute and 18 U.S.C. § 3651 (1976 ed.) expressly provides, inter alia:
10
"While on probation and among the conditions thereof, the defendant—
11
"May be required to pay a fine in one or several sums; and
12
"May be required to make restitution or reparation to aggrieved parties for actual damages or loss caused by the offense for which conviction was had . . . ."10
13
Petitioners argue, however, that the sentencing provisions contained in § 5010 are separate and distinct from each other and from any other penalty provision. Recognizing that § 5023(a) makes § 3651 applicable to a § 5010(a) sentence, they now concede11 that restitution is a permissible condition of a probationary sentence under § 5010(a), because § 3651 directly authorizes restitution without resort to any other penalty provision. On the other hand, a fine may be imposed under § 3651 only if the penalty provision of the offense under which the youth is convicted so provides.12 Thus, a fine is not permissible in conjunction with a § 5010(a) sentence because it requires resort to the offense penalty provision.
14
Petitioners' arguments are refuted by the legislative history of the Act. The legislative history of § 5023(a) clearly reveals that Congress intended thereby to preserve to sentencing judges their powers under the general probation statute when sentencing youth offenders to probation under § 5010(a). The House Report accompanying S.2609, 81st Cong., 1st Sess. (1949), the bill which was enacted as the YCA, makes that clear in stating:
15
"Under [the bill's] provisions, if the court finds that a youth offender does not need treatment, it may suspend the imposition or execution of sentence and place the youth offender on probation. Thus, the power of the court to grant probation is left undisturbed by the bill." (Emphasis added.) H.R.Rep.No.2979, 81st Cong., 2d Sess., 3 (1950); U.S.Code Cong. Service 1950, p. 3985.
16
The same view was expressed during the House hearings on H.R.2140, 78th Cong., 1st Sess. (1943), a bill whose youth corrections provisions were nearly identical to those of S.2609 introduced in 1949. Judge Phillips, Chairman of the Subcommittee responsible for drafting model youth correction legislation to be sponsored by the Judicial Conference, emphasized that "[i]t leaves [the probation system] absolutely undisturbed,"13 for the intent of the Judicial Conference in sponsoring the bill was to retain the existing options with respect to probation and adult punishment, while simply adding a new option of commitment for treatment. See 1943 House Hearings 34-37.
17
The legislative history of §§ 5010(b) and 5010(c) buttresses this understanding of the purpose of § 5023(a). Those subsections provide that commitment to the custody of the Attorney General is "in lieu of the penalty of imprisonment otherwise provided by law." The words "of imprisonment" did not appear in the original bill recommended by the Judicial Conference in 1943. H.R.2140, supra, tit. III, § 1(a), reprinted in 1943 House Hearings 3. Addition of the words "of imprisonment" was recommended in a letter from Attorney General Biddle to the House Subcommittee. That letter, in which, according to the letter, members of the Judicial Conference concurred and which was read into the record at the Subcommittee hearings, explained the reason for adding the words "of imprisonment" as follows:
18
"Sentence of the youth offender to the custody of the Authority should be a permissible alternative to a penalty of imprisonment otherwise provided by law but not to a penalty of a fine. It should, moreover, be possible for the court both to impose a fine and to sentence the offender to the custody of the Authority, where the law provides both fine and imprisonment as the penalties that may be imposed." (Emphasis added.) Letter from Francis Biddle to Francis E. Walter (June 7, 1943), reprinted in 1943 House Hearings 110-111.
19
When introduced, S.2609, supra, which was enacted into law, contained the words "of imprisonment" recommended by Attorney General Biddle. This history of subsection (b) demonstrates that Congress added the words "of imprisonment" in order to preserve the pre-existing authority of judges to impose a fine in conjunction with commitment when the applicable penalty provision provided for a penalty of fine and imprisonment. The fact that Congress contemplated that a sentence under subsections (b) and (c) would permit resort to the otherwise applicable penalty provision as authority for imposition of a fine, militates in favor of the same construction with respect to subsection (a). There is no reason to believe that Congress directed that the subsections should be treated differently in that respect.14
20
We conclude that Congress' purpose in adopting § 5023(a), was to assure that a sentence under § 5010(a) would not displace the authority conferred by § 3651 to impose fines and orders of restitution as conditions of probation.
21
With respect to petitioners' second argument, that fines are punitive and their imposition therefore inconsistent with the rehabilitative goals of the YCA,15 it is sufficient answer that Congress expressed its judgment to the contrary in preserving the authority of sentencing judges to impose them as a condition of probation. Moreover, we are not persuaded that fines should necessarily be regarded as other than rehabilitative when imposed as a condition of probation. There is much force in the observation of the District Court:
22
"[A] fine could be consistent . . . with the rehabilitative intent of the Act. By employing this alternative [a fine and probation], the sentencing judge could assure that the youthful offender would not receive the harsh treatment of incarceration, while assuring that the offender accepts responsibility for his transgression. The net result of such treatment would be an increased respect for the law and would, in many cases, stimulate the young person to mature into a good law-abiding citizen." App. 36-37.
23
Affirmed.
24
Mr. Justice BLACKMUN took no part in the consideration or decision of this case.
1
Courts of Appeals have reached conflicting conclusions concerning whether a fine is a permissible condition of a § 5010(a) sentence. The Court of Appeals for the Ninth Circuit, United States v. Bowens, 514 F.2d 440 (1975); United States v. Mollet, 510 F.2d 625, (9 Cir., 1975), in disagreement with the Court of Appeals for the Fourth Circuit in the instant case, has held that imposition of a fine is improper. The Ninth Circuit, United States v. Hayes, 474 F.2d 965 (1973), and the Fifth Circuit, Cramer v. Wise, 501 F.2d 959 (1974), have held that a fine is not permissible in conjunction with a § 5010(b) sentence. With respect to orders of restitution, however, the Courts of Appeals that have addressed the question, the Ninth Circuit in United States v. Hix, 545 F.2d 1247 (1976), and the Third Circuit in United States v. Buechler, 557 F.2d 1002 (1977), agree with the Court of Appeals in this case that an order of restitution properly may be imposed in conjunction with a sentence under § 5010(a).
2
Rice, a young adult, was sentenced under § 5010(a) pursuant to 18 U.S.C. § 4216 (1976 ed.), which permits sentencing of young adult offenders under the YCA in appropriate cases.
3
See S.Rep.No.1180, 81st Cong., 1st Sess., 4 (1949); Prevention of Crime Act of 1908, 8 Edw. 7, ch. 59, pt. 1; The Criminal Justice Act of 1948, 11 & 12 Geo. 6, ch. 58; Criminal Justice Act of 1961, 9 & 10 Eliz. 2, ch. 39. For a discussion of the similarities between the Borstal System and the YCA, see Note, The Federal Youth Corrections Act: Past Concern in Need of Legislative Reappraisal, 11 Am.Crim.L.Rev. 229, 233-242 (1972).
4
"The underlying theory of the bill is to substitute for retributive punishment methods of training and treatment designed to correct and prevent antisocial tendencies. It departs from the mere punitive idea of dealing with criminals and looks primarily to the objective idea of rehabilitation." H.R.Rep.No.2979, 81st Cong., 2d Sess., 3 (1950); U.S.Code Cong. Service 1950, p. 3985.
5
The Act provides that committed youth "shall undergo treatment in institutions of maximum security, medium security, or minimum security types, including training schools, hospitals, farms, forestry and other camps, and other agencies . . . of treatment." 18 U.S.C. § 5011 (1976 ed.). Moreover, it provides for the examination, classification, and periodic re-evaluation of youth on an individual basis in order to tailor the Act's programs to individual needs. See 18 U.S.C. §§ 5014-5017 (1976 ed.).
The basis for this emphasis on individualized and flexible treatment programs was the Borstal System which the Act emulated. That program was described in H.R.Rep.No.2979, supra, at 5; U.S.Code Cong. Service 1950, p. 3983, as follows:
"[The Borstal System] now embraces 13 institutions. Some are walled. Others are completely open. Each institution has its own particular specialty.
"One provides complete facilities for trade training in metal and woodwork. Another is laid out and run as a summer camp with work and recreational programs which keep the boys out of doors. A third is largely devoted to agriculture and stock raising. One institution graduates skilled workers in the building trades.
"While the institutions differ in many respects, they have certain things in common. . . .
"Second, an individual plan based on close acquaintance with individual needs and antecedents and calculated to return the young men to society as social and rehabilitated citizens.
* * * * *
"Three cardinal principles dominate the system: (1) flexibility, (2) individualization, and (3) emphasis on the intangibles." Id., at 5; U.S.Code Cong. Service 1950, p. 3987.
6
"By herding youth with maturity, the novice with the sophisticate, the impressionable with the hardened, and by subjecting youth offenders to the evil influences of older criminals and their teaching of criminal techniques, without the inhibitions that come from normal contacts and counteracting prophylaxis, many of our penal institutions actively spread the infection of crime and foster, rather than check, it." H.R.Rep.No.2979, supra, at 2-3; U.S.Code Cong. Service 1950, p. 3985.
7
The statement of Mr. Bennett, the Director of the Bureau of Prisons, before the Senate Subcommittee explained the need for an indeterminate sentence with discretion vested in the Youth Corrections Division of the Bureau to release the offender at the appropriate time. Mr. Bennett said:
"From the hundreds of cases of this type which have come across my desk I have formed the conclusion that in the task of correcting the offender the crucial element is that of time. Attitudes, habits, interests, standards cannot be changed overnight. Training in work habits and skills requires time. Once the individual has received the maximum benefit from the institutional program, however, it is just as important that his release to the community be effected promptly. In the case of each person confined there comes a period when he has his best prospe ts of making good in the community. His release should occur at this time. If he is released earlier he will not be ready for the task of establishing himself; if later, he may have become bitter, unsure of himself, or jittery like the athlete who is overtrained.
"Rarely does a day go by in one of our institutions for younger offenders without a youth being received whose sentence is either far too long or far too short, if the institution is to carry out its objective of correctional treatment." Correctional System For Youth Offenders: Hearings on S.1114 and S.2609 before a Subcommittee of the Senate Committee on the Judiciary, 81st Cong., 1st Sess., 27 (1949).
Congress provided the Bureau with the flexibility sought by providing in § 5017 for flexible commitment periods responsive to individual needs and progress.
8
Section 5010 provides in full:
"(a) If the court is of the opinion that the youth offender does not need commitment, it may suspend the imposition or execution of sentence and place the youth offender on probation.
"(b) If the court shall find that a convicted person is a youth offender, and the offense is punishable by imprisonment under applicable provisions of law other than this subsection, the court may, in lieu of the penalty of imprisonment otherwise provided by law, sentence the youth offender to the custody of the Attorney General for treatment and supervision pursuant to this chapter until discharged by the Commission as provided in section 5017(c) of this chapter; or
"(c) If the court shall find that the youth offender may not be able to derive maximum benefit from treatment by the Commission prior to the expiration of six years from the date of conviction it may, in lieu of the penalty of imprisonment otherwise provided by law, sentence the youth offender to the custody of the Attorney General for treatment and supervision pursuant to this chapter for any further period that may be authorized by law for the offense or offenses of which he stands convicted or until discharged by the Commission as provided in section 5017(d) of this chapter.
"(d) If the court shall find that the youth offender will not derive benefit from treatment under subsection (b) or (c), then the court may sentence the youth offender under any other applicable penalty provision.
"(e) If the court desires additional information as to whether a youth offender will derive benefit from treatment under subsections (b) or (c) it may order that he be committed to the custody of the Attorney General for observation and study at an appropriate classification center or agency. Within sixty days from the date of the order, or such additional period as the court may grant, the Commission shall report to the court its findings."
9
Petitioners abandoned the contention contained in their petition for certiorari that a § 5010(a) sentence may not be conditioned upon restitution. See n. 11, infra.
10
Section 3651 provides in relevant part:
"Upon entering a judgment of conviction of any offense not punishable by death or life imprisonment, any court having jurisdiction to try offenses against the United States when satisfied that the ends of justice and the best interest of the public as well as the defendant will be served thereby, may suspend the imposition or execution of sentence and place the defendant on probation for such period and upon such terms and conditions as the court deems best.
* * * * *
"While on probation and among the conditions thereof, the defendant—
"May be required to pay a fine in one or several sums; and
"May be required to make restitution or reparation to aggrieved parties for actual damages or loss caused by the offense for which conviction was had . . . ."
11
Petitioners apparently agree with the Court of Appeals for the Ninth Circuit which held in United States v. Hix, 545 F.2d 1247 1976), that a fine is inherently punitive but restitution is essentially rehabilitative. Brief for Petitioners 11. In their brief, petitioners argued that restitution is not a permissible condition of probation, however, because "[i]t is . . . a real concern that sentencing courts may use restitution as a vehicle to accomplish that which is not permitted by the statute. Further, since the Federal Youth Corrections Act is an exclusive sentencing statute, any sentence beyond the limits of the Act is improper." Ibid. During oral argument, petitioners expressly abandoned this argument, conceding that restitution is a permissible condition of probation because it is directly authorized by § 3651. Tr. of Oral Arg. 5, 8, 9.
12
The Government conceded that § 3651 permits imposition of a fine "only when the underlying statute calls for fine and/or imprisonment." Tr. of Oral Arg. 12. We need not address the question suggested by this phrasing, that a fine may be imposed when the underlying offense statute provides only a penalty of imprisonment. Compare id., with Letter from Francis Biddle to Francis E. Walter, quoted, infra, at 552.
13
The full statement of Judge Phillips' remark regarding the bill's effect on the probation system is as follows:
"Mr. Cravens. Does this bill in any way affect the so-called probation system?
"Judge Phillips. Not at all.
"Mr. Cravens. There is no attempt to disturb that?
"Judge Phillips. No sir; we found it was working well and concluded it ought not to be disturbed.
"Mr. Cravens. And this bill was drafted with that in mind?
"Judge Phillips. Yes, sir. It leaves it absolutely undisturbed." Federal Corrections Act and Improvement in Parole: Hearings on H.R.2139 and H.R.2140 before Subcommittee No. 3 of the Committee on the Judiciary, 78th Cong., 1st Sess., 37 (1943) (hereinafter 1943 House Hearings).
14
Petitioners argued that Congress may have intended to authorize imposition of a fine on one sentenced to commitment under subsection (b), yet to withhold such authority as to one sentenced to probation under subsection (a) based on the "qualitative" distinction between people sentenced under those subsections. Tr. of Oral Arg. 8. If that argument is based on a perceived distinction between the treatment needs of the two "classes" of youth offenders, it is without support in the history of the Act, and conflicts with the Act's emphasis on flexibility and individualization of treatment. See n. 5, supra. If the premise of the argument is that those sentenced to commitment merit a fine as punishment, while those sentenced to probation do not, it conflicts with the basic purpose of the Act to accord youth offenders rehabilitative treatment rather than retributive punishment. See n. 4, supra.
15
See ibid., accompanying text.
| 12
|
434 U.S. 555
98 S.Ct. 855
55 L.Ed.2d 24
Raymond K. PROCUNIER et al., Petitioners,v.Apolinar NAVARETTE, Jr.
No. 76-446.
Argued Oct. 11, 1977.
Decided Feb. 22, 1978.
Syllabus
Respondent state prisoner brought an action pursuant to 42 U.S.C. § 1983 against petitioner prison officials, alleging, inter alia, negligent interference with respondent's outgoing mail in violation of his constitutional rights under the First and Fourteenth Amendments. The District Court granted summary judgment for petitioners on this claim on the basis of their asserted qualified immunity from liability for damages under § 1983. The Court of Appeals reversed, holding that prisoners are entitled to First and Fourteenth Amendment protection for their outgoing mail, that the claim in question stated a cause of action under § 1983, and that summary judgment for petitioners was improper because, viewing the evidence in the light most favorable to respondent, petitioners were not entitled to prevail as a matter of law. Held: The Court of Appeals erred in reversing the District Court's summary judgment for petitioners. Pp. 560-566.
(a) Petitioners, as state prison officials, were entitled to immunity unless they "knew or reasonably should have known" that the action they took with respect to respondent's mail would violate his federal constitutional rights, or they took the action with the "malicious intention" to cause a deprivation of constitutional rights or other injury to respondent. Wood v. Strickland, 420 U.S. 308, 322, 95 S.Ct. 992, 1000, 43 L.Ed.2d 214. Pp. 561-562.
(b) There was no established First and Fourteenth Amendment right protecting state prisoners' mail privileges at the time in question, and therefore, as a matter of law, there was no basis for rejecting the immunity defense on the ground that petitioners knew or should have known that their alleged conduct violated a constitutional right. Pp. 562-565.
(c) Neither should petitioners' immunity defense be overruled under the standard authorizing liability where the defendant state official has acted with "malicious intention" to deprive the plaintiff of a constitutional right or to cause him "other injury," since the claim in question charged negligent conduct, not intentional injury. Pp. 566.
536 F.2d 277, reversed.
Sanford Svetcov, San Francisco, Cal., for petitioners.
Michael E. Adams, San Jose, Cal., for respondent.
Mr. Justice WHITE delivered the opinion of the Court.
1
Respondent Navarette, an inmate of Soledad Prison in California when the events revealed here occurred, filed his second amended complaint on January 19, 1974, charging six prison officials with various types of conduct allegedly violative of his constitutional rights and of 42 U.S.C. §§ 1983 and 1985.1 Three of the defendants were subordinate officials at Soledad;2 three were supervisory officials: the director of the State Department of Corrections and the warden and assistant warden of Soledad. The first three of nine claims for relief alleged wrongful interference with Navarette's outgoing mail. The first claim charged that the three subordinate officers, who were in charge of mail handling, had failed to mail various items of correspondence during the 15 months that respondent was incarcerated at Soledad, from September 1, 1971, to December 11, 1972. These items, described in 13 numbered paragraphs, included letters to legal assistance groups, law students, the news media, and inmates in other state prisons, as well as personal friends. Some of these items had been returned to Navarette, some the defendants had refused to send by registered mail as Navarette had requested, and, it was alleged, none of the items had ever reached the intended recipient. This "interference" or "confiscation" was asserted to have been in "knowing disregard" of the applicable statewide prisoner mail regulations3 and of Navarette's "constitutional rights," including his rights to free speech and due process as guaranteed by the First, Fifth, and Fourteenth Amendments to the United States Constitution. The three supervisory officers were alleged to have knowingly condoned this conduct and to have conspired with their subordinates for forbidden ends.
2
The second claim for relief alleged wrongful failure to mail the same items of correspondence and asserted that the "interference or confiscation" had been conducted with "bad faith disregard" for Navarette's rights. The third claim posed the same failures to mail but claimed that the "interference" or "confiscation" had occurred because the three subordinate officers had "negligently and inadvertently" misapplied the prison mail regulations and because the supervisory officers had "negligent[ly]" failed to provide sufficient training and direction to their subordinates, all assertedly in violation of Navarette's constitutional rights.
3
Petitioners moved for dismissal for failure to state a claim on which relief could be granted or alternatively for summary judgment. Affidavits in support of the motion and counter-affidavits opposing it were also before the District Court. By order and without opinion, the court then granted summary judgment for petitioners on the first three claims and dismissed the remaining claims for failure to state a federal claim.4
4
The Court of Appeals reversed as to the first three claims. Nav rette v. Enomoto, 536 F.2d 277 (CA9 1976). It held, first, that prisoners themselves are entitled to First and Fourteenth Amendment protection for their outgoing mail and that Navarette's allegations were sufficient to encompass proof that would entitle him to relief in damages. Second, the court ruled that summary judgment on the first two claims was improper because there were issues of fact to be tried, particularly with respect to the claim that "a reasonable and good faith belief of a state official that his or her conduct is lawful, even where in fact it is not, constitutes a complete defense to a § 1983 claim for damages." Id., at 280. Third, the Court of Appeals held that Navarette's "allegations that state officers negligently deprived him of [his constitutional] rights state a § 1983 cause of action" and that summary judgment on the third purported claim was "improper because, as in the case of counts one and two, viewing the evidence in the light most favorable to Navarette, we are unable to say appellees are entitled to prevail as a matter of law." Id., F.2d at 282, and n. 6.5
5
We granted certiorari, 429 U.S. 1060, 97 S.Ct. 783, 50 L.Ed.2d 776, and the question before us is whether the Court of Appeals correctly reversed the District Court's judgment with respect to Navarette's third claim for relief alleging negligent interference with a claimed constitutional right.6
6
In support of thei motion for summary judgment, petitioners argued that on the record before the court they were immune from liability for damages under § 1983 and hence were entitled to judgment as a matter of law. The claim was not that they shared the absolute immunity accorded judges and prosecutors but that they were entitled to the qualified immunity accorded those officials involved in Scheuer v. Rhodes, 416 U.S. 232, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974), and Wood v. Strickland, 420 U.S. 308, 95 S.Ct. 992, 43 L.Ed.2d 214 (1975). The Court of Appeals appeared to agree that petitioners were entitled to the claimed degree of immunity but held that they were nevertheless not entitled to summary judgment because in the court's view there were issues of fact to be resolved and because when the facts were viewed most favorably to respondent, it could not be held that petitioners were entitled to judgment as a matter of law. Without disagreeing that petitioners enjoyed a qualified immunity from damages liability under § 1983, respondent defends the judgment of the Court of Appeals as a proper application of § 1983 and of the Court's cases construing it.
7
Although the Court has recognized that in enacting § 1983 Congress must have intended to expose state officials to damages liability in some circumstances, the section has been consistently construed as not intending wholesale revocation of the common-law immunity afforded government officials. Legislators, judges, and prosecutors have been held absolutely immune from liability for damages under § 1983. Tenney v. Brandhove, 341 U.S. 367, 71 S.Ct. 783, 95 L.Ed. 1019 (1951); Pierson v. Ray, 386 U.S. 547, 87 S.Ct. 1213, 18 L.Ed.2d 288 (1967); Imbler v. Pachtman, 424 U.S. 409, 96 S.Ct. 984, 47 L.Ed.2d 128 (1976). Only a qualified immunity from damages is available to a state Governor, a president of a state university, and officers and members of a state National Guard. Scheuer v. Rhodes, supra. The same is true of local school board members, Wood v. Strickland, supra; of the superintendent of a state hospital, O'Connor v. Donaldson, 422 U.S. 563, 95 S.Ct. 2486, 45 L.Ed.2d 396 (1975); and of policemen, Pierson v. Ray, supra; see Imbler v. Pachtman, supra, 424 U.S., at 418-419, 96 S.Ct., at 989.
8
We agree with petitioners that as prison officials and officers, they were not absolutely immune from liability in this § 1983 damages suit and could rely only on the qualified immunity described in Scheuer v. Rhodes, supra, and Wood v. Strickland, supra.7 Scheuer declared:
9
"[I]n varying scope, a qualified immunity is available to officers of the executive branch of government, the variation being dependent upon the scope of discretion and responsibilities of the office and all the circumstances as they reasonably appeared at the time of the action on which liability is sought to be based. It is the existence of reasonable grounds for the belief formed at the time and in light of all the circumstances, coupled with good-faith belief, that affords a basis for qualified immunity of executive officers for acts performed in the course of official conduct." Scheuer v. Rhodes, 416 U.S., at 247-248, 94 S.Ct., at 1692.
10
We further held in Wood v. Strickland, that "if the work of the schools is to go forward," there must be a degree of immunity so that "public school officials understand that action taken in the good-faith fulfillm nt of their responsibilities and within the bounds of reason under all the circumstances will not be punished and that they need not exercise their discretion with undue timidity." 420 U.S., at 321, 95 S.Ct., at 1000. This degree of immunity would be unavailable, however, if the official "knew or reasonably should have known that the action he took within his sphere of official responsibility would violate the constitutional rights of the student affected, or if he took the action with the malicious intention to cause a deprivation of constitutional rights or other injury to the student." Id., at 322, 95 S.Ct., at 1001. The official cannot be expected to predict the future course of constitutional law, ibid.; Pierson v. Ray, supra, 386 U.S., at 557, 87 S.Ct., at 1219, but he will not be shielded from liability if he acts "with such disregard of the [plaintiff's] clearly established constitutional rights that his action cannot reasonably be characterized as being in good faith." 420 U.S., at 322, 95 S.Ct., at 1001.
11
Under the first part of the Wood v. Strickland rule, the immunity defense would be unavailing to petitioners if the constitutional right allegedly infringed by them was clearly established at the time of their challenged conduct, if they knew or should have known of that right, and if they knew or should have known that their conduct violated the constitutional norm. Petitioners claim that in 1971 and 1972 when the conduct involved in this case took place there was no established First Amendment right protecting the mailing privileges of state prisoners and that hence there was no such federal right about which they should have known. We are in essential agreement with petitioners in this respect and also agree that they were entitled to judgment as a matter of law.
12
In ruling that petitioners' conduct had encroached on Navarette's First Amendment rights, the Court of Appeals relied on two of its own decisions, one in 1973 and the other in 1974, as well as upon Martinez v. Procunier, 354 F.Supp. 1092 (ND Cal.), a 1973 three-judge court opinion with which the Court of Appeals said it was in essential agreement. The court relied on no earlier opinions, and this Court, in affirming the judgment in Martinez v. Procunier, did so on the ground that the constitutional rights of the addressees of a prisoner's correspondence were involved when prison officials interfered with a prisoner's outgoing mail. Procunier v. Martinez, 416 U.S. 396, 94 S.Ct. 1800, 40 L.Ed.2d 224 (1974). The question of the rights of the prisoner himself was left open. The Court referred to the "tension between the traditional policy of judicial restraint regarding prisoner complaints and the need to protect constitutional rights" which has "led the federal courts to adopt a variety of widely inconsistent approaches to the problem" of constitutional challenges to censorship of prisoner mail and to the "absence of any generally accepted standard for testing the constitutionality of prison mail censorship regulations . . . ." Id., at 406, 407, 94 S.Ct., at 1808. Some Courts of Appeals were said to have maintained a "hands off posture";8 others to have extended various degrees of protection to prisoners' mail.9 The Court referred to no relevant pronouncements by courts in the Ninth Circuit other than the one then under review; and it is apparent that Procunier, the defendant in the Martinez suit and in this one, was then maintaining that there was no established constitutional right protecting prison mail under which his mail regulations could be challenged.10
13
Respondent relies on Hyland v. Procunier, 311 F.Supp. 749 (ND Cal. 1970); Gilmore v. Lynch, 319 F.Supp. 105 (ND Cal. 1970), aff'd sub nom. Younger v. Gilmore, 404 U.S. 15, 92 S.Ct. 250, 30 L.Ed.2d 142 (1971); Northern v. Nelson, 315 F.Supp. 687 (ND Cal. 1970); Payne v. Whitmore, 325 F.Supp. 1191 (ND Cal. 1971); and Brenneman v. Madigan, 343 F.Supp. 128 (ND Cal. 1972). But none of these cases deals with the rights of convicted prisoners in their mail and none furnishes an adequate basis for claiming that in 1971 and 1972 there was a "clearly established" constitutional right protecting Navarette's correspondence involved in this case.11
14
Whether the state of the law is evaluated by reference to the opinions of this Court, of the Courts of Appeals, or of the local District Court, there was no "clearly established" First and Fourteenth Amendment right with respect to the correspondence of convicted prisoners in 1971-1972.12 As a matter of law, therefore, there was no basis for rejecting the immunity defense on the ground that petitioners knew or should have known that their alleged conduct violated a constitutional right. Because they could not reasonably have been expected to be aware of a constitutional right that had not yet been declared, petitioners did not act with such disregard for the established law that their conduct "cannot reasonably be characterized as being in good faith." Wood v. Strickland, 420 U.S., at 322,13 95 S.Ct., at 1001.
15
Neither should petitioners' immunity defense be overruled under the second branch of the Wood v. Strickland standard, which would authorize liability where the official has acted with "malicious intention" to deprive the plaintiff of a constitutional right or to cause him "other injury," This part of the rule speaks of "intentional injury," contemplating that the actor intends the consequences of his conduct. See Restatement (Second) of Torts § 8A (1965). The third claim for relief with which we are concerned here, however, charges negligent conduct, which normally implies that although the actor has subjected the plaintiff to unreasonable risk, he did not intend the harm or injury that in fact resulted. See id., at § 282 and Comment d. Claims 1 and 2 of the complaint alleged intentional and bad-faith conduct in disregard of Navarette's constitutional rights; but claim 3, as the court below understood it and as the parties have treated it, was limited to negligence. The prison officers were charged with negligent and inadvertent interference with the mail and the supervisory personnel with negligent failure to provide proper training. To the extent that a malicious intent to harm is a ground for denying immunity, that consideration is clearly not implicated by the negligence claim now before us.14
16
We accordingly conclude that the District Court was correct in entering summary judgment for petitioners on the third claim of relief and that the Court of Appeals erred in holding otherwise. The judgment of the Court of Appeals is
17
Reversed.
18
Mr. Chief Justice BURGER, dissenting.
19
I dissent because the Court's opinion departs from our practice of considering only the question upon which certiorari was granted or questions "fairly comprised therein." This Court's Rule 23(1)(c). We agreed to consider only one question: "Whether negligent failure to mail certain of a prisoner's outgoing letters states a cause of action under section 1983?" The Court decides a different question: Whether the petitioners in this case are immune from § 1983 damages for the negligent conduct alleged in count three of Navarette's complaint. That question is not "comprised" within the question that we agreed to consider. Nor is this case within any "well-recognized exception" to our practice. See Blonder-Tongue Laboratories, Inc. v. University Foundation, 402 U.S. 313, 320 n. 6, 91 S.Ct. 1434, 28 L.Ed.2d 788 (1971); R. Stern & E. Gressman, Supreme Court Practice § 6.37, p. 298 (4th ed. 1969).
20
The District Court granted summary judgmen for the petitioners, without opinion, on a claim that petitioners confiscated Navarette's mail in the course of a negligent and inadvertent application of mail regulations. The meaning of that allegation is by no means clear. Navarette may have intended to allege that petitioners were aware of the nature of the mail and intentionally confiscated it because they did not understand prison regulations. Or it may be that Navarette intended to claim that petitioners, apart from their understanding of prison mail regulations, confiscated the mail because they were mistaken as to its nature. The Court of Appeals appears to have adopted the latter interpretation of the allegation although its opinion is not entirely clear. It described the pertinent cause of action as alleging acts "committed negligently." Having decided that the complaint alleged negligent acts, the Court of Appeals addressed the issue of whether a negligent act can give rise to § 1983 liability. It decided that "a deprivation of rights need not be purposeful to be actionable under § 1983" and held that Navarette's allegation "that state officers negligently deprived him of [his rights] state[s] a § 1983 cause of action."
21
The question before us is whether deprivation of a constitutional right by negligent conduct is actionable under § 1983. Neither the language nor the legislative history of § 1983 indicates that Congress intended to provide remedies for negligent acts.
22
I would hold that one who does not intend to cause and does not exhibit deliberate indifference to the risk of causing the harm that gives rise to a constitutional claim is not liable for damages under § 1983. I would then remand the case to the Court of Appeals to construe the ambiguous complaint and determine whether the allegation regarding misapplication of prison mail regulations states a § 1983 cause of action.
23
Mr. Justice STEVENS, dissenting.
24
Today's decision, coupled with O'Connor v. Donaldson, 422 U.S. 563, 95 S.Ct. 2486, 45 L.Ed.2d 396, strongly implies that every defendant in a § 1983 action is entitled to assert a qualified immunity from damage liability. As the immunity doctrine developed, the Court was careful to limit its holdings to specific officials,1 and to insist that a considered inquiry into the common law was an essential precondition to the recognition of the proper immunity for any official.2 These limits have now been abandoned. In Donaldson, without explanation and without reference to the common law, the Court held that the standard for judging the immunity of the superintendent of a mental hospital is the same as the standard for school officials; today the Court purports to apply the same standard to the superintendent of a prison system and to various correction officers.3
25
I have no quarrel with the extension of a qualified immunity defense to all state agents. A public servant who is conscientiously doing his job to the best of his ability should rarely, if ever, be exposed to the risk of damage liability. But when the Court makes the qualified immunity available to all potential defendants, it is especially important that the contours of this affirmative defense be explained with care and precision. Unfortunately, I believe today's opinion significantly changes the nature of the defense and overlooks the critical importance of carefully examining the factual basis for the defense in each case in which it is asserted.
26
The facts of this case have been developed only sketchily. Because the District Court granted a motion for summary judgment, we must accept Navarette's version of the facts as true.4 The Court of Appeals remanded six of his claims for trial. These claims tell us that prison officials prevented Navarette from corresponding with legal assistance groups, law students, the news media, personal friends, and other inmates with legal problems or expertise. Some of this mail was deliberately confiscated because the guards regarded Navarette as a troublesome "writ-writer" and some was mishandled simply because the guards were careless in performing their official duties.
27
To establish their defense, all the defendants except Procunier have filed an affidavit stating that they made a good-faith effort to comply with prison mail regulations while handling Navarette's mail.5 But Navarette's affidavit challenges this assertion. According to Navarette, the prison warden took the position, despite contrary prison regulations, that officials had a right to confiscate any mail, "if we don't feel it is right or necessary." Record 78. Navarette also claims that his writ-writing activities led authorities to punish him by taking away his job as a prison librarian and by seizing his mail.
28
With the record in this state, the defendants have not established good faith. The heart of the good-faith defense is the manner in which the defendant has carried out his job.6 A pu lic official is entitled to immunity for acts performed in the regular course of duty if he sincerely and reasonably believed he was acting within the sphere of his official responsibility. See Scheuer v. Rhodes, 416 U.S. 232, 247-248, 94 S.Ct. 1683, 1691-1692, 40 L.Ed.2d 90. The kind of evidence that will adequately support the defense will vary widely from case to case. Some defendants, especially those without policymaking responsibility, may establish their defense by showing that they abided by the institution's regulations or by its long-followed practices. Other officials, whose exercise of discretion is given greater deference by the courts, see Scheuer v. Rhodes, supra, may have a correspondingly greater duty to consider the legal implications of their conduct.
29
Wood v. Strickland, 420 U.S. 308, 95 S.Ct. 992, 43 L.Ed.2d 214, pointed out two specific instances in which an official might forfeit his good-faith defense by deviating from a reasonable performance of his job. An official does not carry out his official duties properly if he chooses a course of conduct that he knows, or should know, is unconstitutional. Id., at 322, 95 S.Ct., at 1000. Similarly, an official steps outside his proper role when he uses his powers to inflict constitutional or other harm on an individual for reasons unrelated to the performance of his duty.7 Selective and malicious enforcement of the law is not good faith.
30
Under this standard, Navarette may well be able to defeat these defendants' affirmative defense of good faith. He has alleged, and therefore we must assume, that the defendants did not in fact act within the sphere of their accepted responsibilities. If they carelessly disregarded the standards which their superiors directed them to follow, they would be unable to make the threshold showing necessary to establish good faith. Whether or not that showing can be made in this case depends on a resolution of the conflict between Navarette's allegations of negligence and the statements in defendants' affidavit.
31
The defendants fare no better if we limit our attention to the two examples of bad faith set out in Wood v. Strickland, supra. The Wood Court stated that actual malice—the intent to cause constitutional or other injury—cannot be good faith; a defendant may not have the benefit of the good-faith defense if he misuses his powers by singling out the plaintiff for special and unfair injuries.8 In this case, malice is alleged in some of the plaintiff's claims, and we must assume that it can be proved. The eviden e might show that the defendants intentionally confiscated some of Navarette's mail as a punishment and that they negligently mislaid other letters. A jury might then find that the defendants' animus toward Navarette so tainted their handling of his mail that the good-faith defense should be denied them even with respect to harm caused by their negligence. Only by qualifying its previous teaching about this defense can the Court regard evidence of the defendants' ill will toward the plaintiff as totally irrelevant to any claim that he may have for harm caused by the negligent performance of their duties.
32
The Wood Court also noted that a plaintiff may successfully rebut a claim of immunity based on the defendant's goodfaith performance of official duties by demonstrating that the defendant knew, or should have known, that he was acting unconstitutionally. I think the Court is correct in concluding that the First Amendment's applicability to an inmate's correspondence was not so well established in 1971 that the defendants should have known that interfering with a prisoner's routine mail was unconstitutional. That does not, however, foreclose the argument that the official neglect alleged in this case implicated a different constitutional right—the prisoner's right of access to the courts. In 1971, Navarette had a well-established right of access to the courts and to legal assistance.9 Cutting off his communications with law students and legal assistance groups violated this right. While the lower echelon employees may have been under no obligation to read advance sheets, a jury might conclude that least some of these defendants should have known that at least some of Navarette's mail was entitled to constitutional protection.10 Certainly the question whether correction officers should be charged with knowledge of a constitutional right to communicate with law students and legal assistance groups could be better answered after, rather than before, trial. Cf. O'Connor v. Donaldson, 422 U.S., at 576-577, 95 S.Ct., at 2494; Donaldson v. O'Connor, 519 F.2d 59 (CA5 1975).
33
In sum, I am persuaded that the Court has acted unwisely in reaching out to decide the merits of an affirmative defense before any evidence has been heard and that the record as now developed does not completely foreclose the possibility that the plaintiff might be able to disprove a good-faith defense that has not yet even been pleaded properly.11
34
Accordingly, I respectfully dissent from the decision to decide a question which is not properly presented and from the way the Court decides that question.
1
Section 1983 provides:
"Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress."
Section 1985 proscribes certain conspiracies interfering with civil rights.
2
The named subordinate officials were two correctional counselors at Soledad and a member of the prison staff in charge of handling incoming and outgoing prisoner mail. The complaint also referred to unnamed defendants Does I through IV.
3
Regulations promulgated January 5, 1970, permitted each inmate to send letters to 10 persons on an approved correspondence list plus other special-purpose letters as authorized. Director's Rule ("D.") 2403. Except with permission of the institutional head, correspondence with other inmates was prohibited. D. 2402(13). The inmate was also advised:
"You may not send or receive letters that pertain to criminal activity; are lewd, obscene, or defamatory; contain prison gossip or discussion of other inmates; or are otherwise inappropriate." D. 2402(8).
The regulations assured confidentiality for correspondence with state and federal officials and also stated:
"Nothing in these rules shall deprive you of correspondence with your attorney, or with the courts having jurisdiction over matters of legitimate concern to you." D. 2402(10).
These regulations controlled prisoner correspondence until August 10, 1972, and were in effect at the time that all but one of respondent's letters were posted. Subsequent regulations expanded inmate correspondence rights.
4
Claims 4, 5, and 6 concerned the termination of a law student visitation program in which respondent had participated and the removal of respondent from the post of prison librarian. Claims 7, 8, and 9 realleged the substance of claims 1 through 6 and sought to hold the supervisory officials liable upon a theory of vicarious rather than personal liability. All nine claims also claimed a conspiracy in violation of 42 U.S.C. § 1985.
5
The Court of Appeals also reversed the ruling of the District Court with respect to the 4th, 5th, and 6th claims on the theory that "[t]he termination or denial of prison privileges because of a prisoner's legal activities on his own behalf or those of other inmates is an impermissible interference with his or her constitutional right of access to the courts." 536 F.2d, at 280. Since this issue is not related to the question on which we granted certiorari, we express no view on the resolution of these claims by the court below.
The Court of Appeals affirmed the District Court's dismissal of the claims based on vicarious liability (claims 7, 8, and 9) and also affirmed its dismissal of all claims predicated on 42 U.S.C. § 1985. 536 F.2d, at 282. Neither of these issues is raised here.
6
The questions presented in the petition for certiorari were:
"1. Whether negligent failure to mail certain of a prisoner's outgoing letters states a cause of action under section 1983?
"2. Whether removal of a prisoner as a prison law librarian and termination of a law student-inmate visitation program in which he participated states a cause of action under the Civil Rights Act for either knowingly or negligently interfering with the prisoner's right of access to the courts?
"3. Whether deliberate refusal to mail certain of a prisoner's correspondence in 1971-1972 prior to Procunier v. Martinez, 416 U.S. 396, 94 S.Ct. 1800, 40 L.Ed.2d 224 (1974), and refusal to send certain correspondence by registered mail states a cause of action for violation of his First Amendment right to free expression?"
Our order granting the petition was limited to Question No. 1. In their submissions on the merits, the parties deal with this issue as subsuming the questions whether at the time of the occurrence of the relevant events the Federal Constitution had been construed to protect Navarette's mailing privileges and whether petitioners knew or should have known that their alleged conduct violated Navarette's constitutional rights. Since consideration of these issues is essential to analysis of the Court of Appeals' reversal of summary judgment on claim 3 of the complaint, we shall also treat these questions as subsidiary issues "fairly comprised" by the question presented. This Court's Court Rule 23.1(c). In any event, our power to decide is not limited by the precise terms of the question presented. Blonder-Tongue Laboratories, Inc. v. University Foundation, 402 U.S. 313, 320 n. 6, 91 S.Ct. 1434, 1438, 28 L.Ed.2d 788 (1971).
7
The Courts of Appeals have generally accorded prison and jail administrators performing discretionary functions a qualified immunity from monetary liability under § 1983. E. g., Knell v. Bensinger, 522 F.2d 720 (CA7 1975); Hoitt v. Vitek, 497 F.2d 598, 601 (CA1 1974); Dewell v. Lawson, 489 F.2d 877 (CA10 1974); Anderson v. Nosser, 438 F.2d 183 (CA5 1971), modified on rehearing, 456 F.2d 835 (1972); see Bryan v. Jones, 530 F.2d 1210 (CA5), cert. denied, 429 U.S. 865, 97 S.Ct. 174, 50 L.Ed.2d 145 (1976).
8
416 U.S., at 406, 94 S.Ct., at 1808, citing McCloskey v. Maryland, 337 F.2d 72 (CA4 1964); Lee v. Tahash, 352 F.2d 970 (CA8 1965); Krupnick v. Crouse, 366 F.2d 851 (CA10 1966); Pope v. Daggett, 350 F.2d 296 (CA10 1965).
9
416 U.S., at 406-407, 94 S.Ct., at 1808, citing, inter alia, Sostre v. McGinnis, 442 F.2d 178, 199 (CA2 197 ) (censorship of personal correspondence must have support "in any rational and constitutionally acceptable concept of a prison system"); Jackson v. Godwin, 400 F.2d 529 (CA5 1968) (censorship of prisoner mail must be supported by a compelling state interest); Wilkinson v. Skinner, 462 F.2d 670, 672-673 (CA2 1972) (requiring a "clear and present danger").
10
The jurisdictional statement filed by Procunier stated that "the vast majority of reported cases held that restrictions on the extent and character of prisoners' correspondence and examination and censorship thereof are inherent incidents in the conduct of penal institutions," but noted that in the federal courts there were "widely diverging views regarding the scope and propriety of federal intervention in matters of internal prison regulation," particularly with respect to inmate mail. Jurisdictional Statement filed in Procunier v. Martinez, O.T. 1973, No. 72-1465, p. 9.
11
In Hyland v. Procunier, the District Court enjoined correctional officials from requiring a parolee to obtain advance permission for speeches to public gatherings. The opinion did not discuss the rights of prisoners. Gilmore v. Lynch concerned regulations limiting prisoner access to legal materials and mutual legal assistance. The decision rested on the prisoners' right to reasonable access to the courts. Northern v. Nelson upheld an inmate's right to receive a newspaper which was "necessary for effective exercise of plaintiff's right to practice the Muslim religion." 315 F.Supp., at 688. Payne v. Whitmore affirmed the inmates' First Amendment right to receive newspapers and magazines. The theory of the decision was that "prison rules must bear a reasonable relationship to valid prison goals, and rules which infringe upon particularly important rights will require a proportionately stronger justification." 325 F.Supp., at 1193. It contained no discussion concerning either the importance of prisoner correspondence rights or the type of correspondence rules which would be reasonable. Toward the end of the relevant period, in May 1972, Brenneman v. Madigan held that [p]re-trial detainees had a First Amendment right in their correspondence. The court recognized, however, that "[p]re-trial detainees do not stand on the same footing as convicted inmates." 343 F.Supp., at 142.
12
Although some of the items of correspondence with which respondent claims interference concerned legal matters or were addressed to lawyers, r spondent is foreclosed from asserting any claim with respect to mail interference based on infringement of his right of access to the courts because such a claim was dismissed with prejudice in an earlier phase of this case. Order of Feb. 9, 1973, No. C-72-1954 SW (ND Cal.). In his Points and Authorities Against Motion to Dismiss filed in connection with the present complaint on April 17, 1974, respondent stated that "[t]he claim against mail interference does not purport to allege denial of access to the courts," and explained that "[i]n ruling on defendants' previous Motion to Dismiss, in February, 1973, this Court dismissed plaintiff's claim against mail interference insofar as it alleged denial of access to the courts." Record 171.
13
There is thus no occasion to address this case on the assumption that Navarette's mailing privileges were protected by a constitutional rule of which petitioners could reasonably have been expected to be aware in 1971 and 1972 and to inquire whether petitioners knew or should have known that their conduct was in violation of that constitutional proscription.
14
Because of the disposition of this case on immunity grounds, we do not address petitioners' other submissions: that § 1983 does not afford a remedy for negligent deprivation of constitutional rights and that state prisoners have no First and Fourteenth Amendment rights in their outgoing mail.
1
Thus, in Wood v. Strickland, 420 U.S. 308, 322, 95 S.Ct. 992, 1001, 43 L.Ed.2d 214, the Court stated:
"Therefore, in the specific context of school discipline, we hold that a school board member is not immune from liability for damages under § 1983 if he knew or reasonably should have known that the action he took within his sphere of official responsibility would violate the constitutional rights of the student affected, or if he took the action with the malicious intention to cause a deprivation of constitutional rights or other injury to the student." (Emphasis added.)
2
In Imbler v. Pachtman, 424 U.S. 409, 421, 96 S.Ct. 984, 990, 47 L.Ed.2d 128, the Court stated:
"As noted above, our earlier decisions on § 1983 immunities were not products of judicial fiat that officials in different branches of government are differently amenable to suit under § 1983. Rather, each was predicated upon a considered inquiry into the immunity historically accorded the relevant official at common law and the interests behind it."
3
Perhaps with good reason, see Whirl v. Kern, 5 Cir., 407 F.2d 781, 791-792 (CA5 1969), the Court does not consult the common law to gauge th scope of a jailer's immunity. Cf. Imbler v. Pachtman, supra, 424 U.S., at 421, 96 S.Ct., at 990; Wood v. Strickland, supra, 420 U.S., at 318, 95 S.Ct., at 999. Instead, the Court seems to rely on an unarticulated notion that prison administrators deserve as much immunity as Governors, school administrators, hospital administrators, and policemen. Ante, at 561, and n. 7. The Court also elides any distinction between discretionary and ministerial tasks. Cf. Scheuer v. Rhodes, 416 U.S. 232, 247, 94 S.Ct. 1683, 1691, 40 L.Ed.2d 90. One defendant in this case was joined simply because he "was in charge of handling incoming and outgoing prisoner mail." Although the scope of this defendant's duties is not clear, he may well have been performing wholly ministerial chores, such as bagging and delivering prison mail. By allowing summary judgment in his favor, the Court strongly suggests that the nature of his job is irrelevant to whether he should have a good-faith immunity.
4
For purposes of decision, the Court also makes an assumption about the law that applies to this case. Like the Court, I shall assume, without deciding, that a guard who negligently misreads regulations and improperly interferes with a prisoner's mail has violated § 1983.
5
Procunier filed neither an answer nor an affidavit. The affidavit filed by the other defendants states:
"Insofar as I handled, approved, returned or otherwise dealt with the mail of Apolinar Navarette, such actions were at all times taken in good faith effort to comply with the applicable regulations then in force of the Director of the Department of Corrections or the superintendent of the institution. At no time did I maliciously interfere with or confiscate plaintiff's mail, or conspire with others to so act, in violation of applicable regulations." Record 142.
6
This is the principle we have turned to in fashioning more specific rules. In Wood v. Strickland, supra, for example, the Court said that the goal of the good-faith doctrine is to allow officials to do their jobs faithfully without fear:
"[H]owever worded, the immunity must be such that public school officials understand that action taken in the good-faith fulfillment of their responsibilities and within the bounds of reason under all the circumstances will not be punished and that they need not exercise their discretion with undue timidity." 420 U.S., at 321, 95 S.Ct., at 1000.
7
Referring to Wood v. Strickland, the Court in O'Connor v. Donaldson, 422 U.S. 563, 577, 95 S.Ct. 2486, 2494, 45 L.Ed.2d 396, stated:
"Under that decision, the relevant question for the jury is whether O'Connor 'knew or reasonably should have known that the action he took within his sphere of official responsibility would violate the constitutional rights of [Donaldson], or if he took the action with the malicious intention to cause a deprivation of constitutional rights or other injury to [Donaldson].' [420 U.S.], at 322, 95 S.Ct., at 1001."
Thus, both in Wood and in O'Connor, the Court expressly stated that the defendant would forfeit his qualified immunity if he acted with the malicious intention to cause a deprivation of constitutional rights or if he deliberately intended to cause "other injury."
8
See n. 7, supra.
9
Access to the courts through the mails has been constitutionally protected since 1941, when Ex parte Hull, 312 U.S. 546, 61 S.Ct. 640, 85 L.Ed. 1034, held that the State could not constitutionally refuse to mail a prisoner's inartful pleadings to the courts. In Johnson v. Avery, 393 U.S. 483, 89 S.Ct. 747, 21 L.Ed.2d 718, this Court recognized that the right of access to the courts included a right of access to legal assistance. Johnson held that, in the absence of alternative sources of assistance, prisoners must be allowed to consult inmate "writ-writers." Id., at 490, 89 S.Ct., at 751. In Younger v. Gilmore, 404 U.S. 15, 92 S.Ct. 250, 30 L.Ed.2d 142, this Court summarily affirmed a three-judge court decision ordering the California Department of Corrections to heed the Johnson decision and abandon a prison rule making it difficult for inmates to get legal help from writ-writers. See Gilmore v. Lynch, 319 F.Supp. 105, 112 (ND Cal.1970). By the time of the acts in question here, the right of access to the courts clearly included a right to communicate with legal assistance groups and law students:
"Johnson v. Avery clearly stands for the general proposition that an inmate's right of access to the court involves a corollary right to obtain some assistance in preparing his communication with the court. Given that corollary right, we fail to see how a state, at least in the absence of some countervailing interest not here appearing, can prevent an inmate from seeking legal assistance from bona fide attorneys working in an organization such as the Civil Liberties Union." Nolan v. Scafati, 430 F.2d 548, 551 (CA1 1970) (footnote omitted).
10
Although Navarette no longer relies on his access rights to establish the defendants' liability, ante, at 565, n. 12, he surely may attempt to prove a vio ation of these rights to rebut a claim of good faith.
11
The license the Court has taken with normal pleading requirements is perhaps best illustrated by the grant of immunity to the defendant Procunier, the Director of the State Department of Corrections, who has filed neither an answer nor an affidavit. For all the record shows, Procunier may have been expressly advised by counsel that the mail regulations were being unconstitutionally enforced, and despite that advice he may have deliberately instructed his subordinates to punish this uniquely bothersome writ-writer. Even such a remote possibility must be considered before summary judgment is approved. As Judge Aldrich has put it, "even an andabata holds the field until someone comes forward to defeat him." Mack v. Cape Elizabeth School Bd., 553 F.2d 720, 722 (CA1 1977).
| 12
|
435 U.S. 1
98 S.Ct. 906
55 L.Ed.2d 65
Joseph A. CALIFANO, Jr., Secretary of Health, Education, and Welfarev.Cesar GAUTIER TORRES. Joseph A. CALIFANO, Jr., Secretary of Health, Education, and Welfare v. Carmelo BRACERO COLON et al.
Nos. 77-88, 77-126.
Feb. 27, 1978.
PER CURIAM.
1
Certain benefits under the Social Security Act, as amended in 1972, are payable only to residents of the United States, defined as the 50 States and the District of Columbia. The District Court for the District of Puerto Rico held in these cases that this geographic limitation is unconstitutional as applied to persons who upon moving to Puerto Rico lost the benefits to which they were entitled while residing in the United States. The Secretary of Health, Education, and Welfare, responsible for the administration of the Social Security Act, has appealed.1
2
* One of the 1972 amendments to the Social Security Act created a uniform program, known as the Supplemental Security Income (SSI) program, for aid to qualified aged, blind, and disabled persons. 86 Stat. 1465, 42 U.S.C. § 1381 et seq. (1970 ed., Supp. V). This federally administered program replaced the federal-state programs of Old Age Assistance, 49 Stat. 620, 42 U.S.C. § 301 et seq.; Aid to the Blind, 49 Stat. 645, 42 U.S.C. § 1201 et seq.; Aid to the Disabled, 64 Stat. 555, 42 U.S.C. § 1351 et seq.; and Aid to the Aged, Blind, and Disabled, 42 U.S.C. § 1381 et seq.
3
The exclusion of Puerto Rico in the amended program is apparent in the definitional section. Section 1611(f) of the Act, as set forth in 42 U.S.C. § 1382(f) (1970 ed., Supp. V), states that no individual is eligible for benefits during any month in which he or she is outside the United States. The Act defines "the United States" as "the 50 States and the District of Columbia." § 1614(e), as set forth in 42 U.S.C. § 1382c(e) (1970 ed., Supp. V). The repeal of the pre-existing programs did not apply to Puerto Rico. Thus persons in Puerto Rico are not eligible to receive SSI benefits, but are eligible to receive benefits under the pre-existing programs.2
4
Appellee Torres received SSI benefits while residing in Connecticut; the benefits were discontinued when he moved to Puerto Rico. Similarly, appellees Colon and Vega received benefits as residents of Massachusetts and New Jersey, respectively, but lost them on moving to Puerto Rico.3
5
Torres filed a complaint in the District Court of Puerto Rico claiming that the exclusion of Puerto Rico from the SSI program was unconstitutional, and a three-judge court was convened to adjudicate the suit. Viewing the geographic limitations in the law as an interference with the constitutional right of residents of the 50 States and the District of Columbia to travel, the court searched for a compelling governmental interest to justify such interference. Finding none, the court held §§ 1611(f) and 1614(e) unconstitutional as applied to Torres. Torres v. Mathews, 426 F.Supp. 1106.4 Soon after that decision, appellees Colon and Vega also sued in the Puerto Rico District Court. Relying on the Torres decision, a single judge enjoined the Social Security Administration from discontinuing their SSI benefits on the basis of their change of residency to Puerto Rico.5
II
6
In 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), this Court held that laws prohibiting newly arrived residents in a State or county from receiving the same vital benefits as other residents unconstitutionally burdened the right of interstate travel. As the Court said in Memorial Hospital, "the right of interstate travel must be seen as insuring new residents the same right to vital governmental benefits and privileges in the States to which they migrate as are enjoyed by other residents." Id., at 261, 94 S.Ct. at 1084.
7
In the present cases the District Court altogether transposed that proposition. It held that the Constitution requires that a person who travels to Puerto Rico must be given benefits superior to those enjoyed by other residents of Puerto Rico if the newcomer enjoyed those benefits in the State from which he came. This Court has never held that the constitutional right to travel embraces any such doctrine, and we decline to do so now.6 Such a doctrine would apply with equal force to any benefits a State might provide for its residents, and would require a State to continue to pay those b nefits indefinitely to any persons who had once resided there. And the broader implications of such a doctrine in other areas of substantive law would bid fair to destroy the independent power of each State under our Constitution to enact laws uniformly applicable to all of its residents.
8
If there ever could be a case where a person who has moved from one State to another might be entitled to invoke the law of the State from which he came as a corollary of his constitutional right to travel, this is surely not it. For we deal here with a constitutional attack upon a law providing for governmental payments of monetary benefits. Such a statute "is entitled to a strong presumption of constitutionality." Mathews v. De Castro, 429 U.S. 181, 185, 97 S.Ct. 431, 434, 50 L.Ed.2d 389 (1976). "So long as its judgments are rational, and not invidious, the legislature's efforts to tackle the problems of the poor and the needy are not subject to a constitutional straitjacket." Jefferson v. Hackney, 406 U.S. 535, 546, 92 S.Ct. 1724, 1731, 32 L.Ed.2d 285 (1972). See also Califano v. Jobst, 434 U.S. 47, 53-54, 98 S.Ct. 95, 99-100, 54 L.Ed.2d 228; Califano v. Goldfarb, 430 U.S. 199, 210, 97 S.Ct. 1021, 1028, 51 L.Ed.2d 270 (1977); Helvering v. Davis, 301 U.S. 619, 640, 57 S.Ct. 904, 908, 81 L.Ed. 1307 (1937).7
9
The judgments are reversed.
10
So ordered.
11
Mr. Justice BRENNAN would affirm.
12
Mr. Justice MARSHALL would note probable jurisdiction and set these cases for oral argument.
1
This Court's jurisdiction is based on 28 U.S.C. § 1252.
2
The SSI benefits are significantly larger.
3
The record does not show whether the appellees applied for benefits under the pre-existing programs while in Puerto Rico.
4
The complaint had also relied on the equal protection component of the Due Process Clause of the Fifth Amendment in attacking the exclusion of Puerto Rico from the SSI program. Acceptance of that claim would have meant that all otherwise qualified persons in Puerto Rico are entitled to SSI benefits, not just those who received such benefits before moving to Puerto Rico. But the District Court apparently acknowledged that Congress has the power to treat Puerto Rico differently, and that every federal program does not have to be extended to it. Puerto Rico has a relationship to the United States "that has no parallel in our history." Examining Board v. Flores de Otero, 426 U.S. 572, 596, 96 S.Ct. 2264, 2278, 49 L.Ed.2d 65 (1976). Cf. Balzac v. Porto Rico, 258 U.S. 298, 42 S.Ct. 343, 66 L.Ed. 627 (1922); Dorr v. United States, 195 U.S. 138, 24 S.Ct. 808, 49 L.Ed. 128 (1904); Downes v. Bidwell, 182 U.S. 244, 21 S.Ct. 770, 45 L.Ed. 1088 (1901). See Leibowitz, The Applicability of Federal Law to the Commonwealth of Puerto Rico, 56 Geo.L.J. 219 (1967); Hector, Puerto Rico: Colony or Commonwealth?, 6 N.Y.U.J. Int'l L. & Pol. 115 (1973).
5
The opinion of the District Court is unreported.
6
The constitutional right of interstate travel is virtually unqualified. United States v. Guest, 383 U.S. 745, 757-758, 86 S.Ct. 1170, 1177-1178, 16 L.Ed.2d 239 (1966); Griffin v. Breckenridge, 403 U.S. 88, 105-106, 91 S.Ct. 1790, 1799-1800, 29 L.Ed.2d 338 (1971). By contrast the "right" of international travel has been considered to be no more than an aspect of the "liberty" protected by the Due Process Clause of the Fifth Amendment. Kent v. Dulles, 357 U.S. 116, 125, 78 S.Ct. 1113, 1118, 2 L.Ed.2d 1204 (1958); Aptheker v. Secretary of State, 378 U.S. 500, 505-506, 84 S.Ct. 1659, 1663, 12 L.Ed.2d 992 (1964). As such, this "right," the Court has held, can be regulated within the bounds of due process. Zemel v. Rusk, 381 U.S. 1, 85 S.Ct. 1271, 14 L.Ed.2d 179 (1965). For purposes of this opinion we may assume that there is a virtually unqualified constitutional right to travel between Puerto Rico and any of the 50 States of the Union.
7
At least three reasons have been advanced to explain the exclusion of persons in Puerto Rico from the SSI program. First, because of the unique tax status of Puerto Rico, its residents do not contribute to the public treasury. Second, the cost of including Puerto Rico would be extremely great—an estimated $300 million per year. Third, inclusion in the SSI program might seriously disrupt the Puerto Rican economy. Department of Health, Education, and Welfare, Report of the Undersecretary's Advisory Group on Puerto Rico, Guam and the Virgin Islands 6 (Oct. 1976).
| 12
|
55 L.Ed.2d 82
98 S.Ct. 917
435 U.S. 21
CENTRAL ILLINOIS PUBLIC SERVICE COMPANY, Petitioner,v.UNITED STATES.
No. 76-1058.
Argued Oct. 12, 1977.
Decided Feb. 28, 1978.
Syllabus
Sharon L. King, Chicago, Ill., for petitioner.
Stuart Alan Smith, Dept. of Justice, Washington, D.C., for respondent.
Mr. Justice BLACKMUN delivered the opinion of the Court.
1
This case presents the issue whether an employer, who in 1963 reimbursed lunch expenses of employees who were on company travel but not away overnight, must withhold federal income tax on those reimbursements. Stated another way, the issue is whether the lunch reimbursements qualify as "wages" under § 3401(a) of the Internal Revenue Code of 1954, 26 U.S.C. § 3401(a).
2
* The facts are not in any real dispute. Petitioner Central Illinois Public Service Company (Company) is a regulated public utility engaged, in downstate Illinois, in the generation, transmission, distribution, an sale of electric energy, and in the distribution and sale of natural gas. Its principal office is in Springfield. It serves a geographic area of some size. In order adequately to serve the area, the Company, in accord with long-established policy, reimburses its employees for reasonable, legitimate expenses of transportation, meals, and lodging they incur in travel on the Company's business. Some of these trips are overnight; on others, the employees return before the end of the business day.
3
In 1963, the tax year in issue, the Company had approximately 1,900 employees. It reimbursed its union employees and the operating employees of its western division (its only nonunionized division) for noon lunches consumed, while on authorized travel, in an amount not to exceed $1.40 per lunch.1 The amount was specified in the Company's collective-bargaining agreement with the union. Other salaried employees were reimbursed for actual reasonable luncheon expenses up to a specified maximum amount.2
4
An employee on an authorized trip prepared his expense account on a company form. This was turned in to his supervisor for approval. The $1.40 rate sometimes was in excess of the actual lunch cost, but at other times it was insufficient to cover that cost. An employee who took lunch from home with him on a company trip was entitled to reimbursement. If, because of the locality of his work assignment on a particular day, the employee went home for lunch, he was not entitled to reimbursement. Many employees were engaged in open-air labor. Even in 1963 the $1.40 rate was "modest."3
5
The employee on travel status rendered no service to the Company during his lunch. He was off duty and on his own time. He was subject to call, however, as were all employees at any time as emergencies required. The lunch payment was unrelated to the employee's specific job title, the nature of his work, or his rate of pay. "[T]his lunch payment arrangement was beneficial and convenient for the company and served its business interest. It saved the company employee time otherwise spent in travelling back and forth as well as the usual travel expenses."4
6
During 1963 the Company paid its employees a total of $139,936.12 in reimbursement for noon lunches consumed while away from normal duty stations on nonovernight trips. It did not withhold federal income tax for its employees with respect to the components of this sum. The Company in 1963, however, did withhold and pay federal income withholding taxes totaling $1,966,489.87 with respect to other employee payments.
7
Upon audit in 1971, the Internal Revenue Service took the position that the lunch reimbursements in 1963 qualified as wages subject to withholding. A deficiency of $25,188.50 in withholding taxes was assessed. The Company promptly paid this deficiency together with $11,427.22 interest thereon, a total of $36,615.72. It then immediately filed its claim for refund of the total amount so paid and, with no action forthcoming on the claim for six months, see 26 U.S.C. § 6532(a)(1), instituted this suit in the United States District Court for the Southern District of Illinois to recover the amount so paid.
8
The District Court ruled in the Company's favor, holding that the reimbursements in question were not wages subject to withholding. 405 F.Supp. 748 (1975). The United States Court of Appeals for the Seventh Circuit reversed. 540 F.2d 300 (1976). Because that decision appeared to be in conflict with the views and decision of the Fourth Circuit in Royster Co. v. United States, 479 F.2d 387 (1973), we granted certiorari. 431 U.S. 903, 97 S.Ct. 1693, 52 L.Ed.2d 386 (1977).
II
9
In Commissioner of Internal Revenue v. Kowalski, 434 U.S. 77, 98 S.Ct. 315, 54 L.Ed.2d 252 (1977), decided earlier this Term, the Court held that New Jersey's cash reimbursements to its highway patrol officers for meals consumed while on patrol duty constituted income to the officers, within the broad definition of gross income under § 61(a) of the 1954 Code, 26 U.S.C. § 61(a), and, further, that those cash payments were not excludable under § 119 of the Code, 26 U.S.C. § 119, relating to meals or lodging furnished for the convenience of the employer.
10
Kowalski, however, concerned the federal income tax and the issue of what was income. Its pertinency for the present withholding tax litigation is necessarily confined to the income tax aspects of the lunch reimbursements to the Company's employees.
11
The income tax issue is not before us in this case. We are confronted here, instead, with the question whether the lunch reimbursements, even though now they may be held to constitute taxable income to the employees who are reimbursed, are or are not "wages" subject to withholding, within the meaning and requirements of §§ 3401-3403 of the Code, 26 U.S.C. §§ 3401-3403 (1970 ed. and Supp. V). These withholding statutes are in Subtitle C of the Code. The income tax provisions constitute Subtitle A.
12
The income tax is imposed on taxable income. 26 U.S.C. § 1. Generally, this is gross income minus allowable deductions. 26 U.S.C. § 63(a). Section 61(a) defines as gross income "all income from whatever source derived" including, under § 61(a)(1), "[c]ompensation for services." The withholding tax, in some contrast, is confined to wages, § 3402(a), and § 3401(a) defines as "wages," "all remuneration (other than fees paid to a public official) for services performed by an employee for his employer, including the cash value of all remuneration paid in any medium other than cash." The two concepts—income and wages—obviously are not necessarily the same. Wages usually are income,5 but many items qualify as income and yet clearly are not wages. Interest, rent, and dividends are ready examples. And the very definition of "wages" in § 3401(a) itself goes on specifically to exclude certain types of remuneration for an employee's services to his employer (e. g., combat pay, agricultural labor, certain domestic service). Our task, therefore, is to determine the character of the lunch reimbursements in the light of the definition of "wages" in § 3401(a), and the Company's consequent obligation to withhold under § 3402(a).
13
Before we proceed to the resolution of that issue, however, one further observation about the income tax aspect of lunch reimbursements is in order. Although United States v. Correll, 389 U.S. 299, 88 S.Ct. 445, 19 L.Ed.2d 537 (1967), restricting to overnight trips the travel expense deduction for meal costs under § 162(a)(2), dispelled some of the confusion, it is fair to say that until this Court's very recent decision in Kowalski, the Courts of Appeals have been in disarray on the issue whether, under §§ 61 and 119 of the 1954 Code or under the respective predecessor sections of the 1939 Code, such reimbursements were income at all to the recipients.6 Thus, even the income tax character of lunch reimbursements was not yet partially clarified before the end of 1967, four full years after the tax year for which withholding taxes on lunch reimbursements are now being claimed from the Company in the present case, and were not entirely clarified until the Kowalski decision a fe weeks ago.
III
14
The Sixteenth, or income tax, Amendment to the Constitution of the United States became effective in February 1913. The ensuing Tariff Act of October 3, 1913, § II E, 38 Stat. 170, contained, perhaps somewhat surprisingly, a fairly expansive withholding provision.7 This, however, was repealed8 and in due course came to be replaced with the predecessor of the current "information at the source" provisions constituting § 6041 et seq. of the 1954 Code, 26 U.S.C. § 6041 et seq.
15
The present withholding system has a later origin in the Victory Tax imposed by the Revenue Act of 1942, § 172, 56 Stat. 884. This, with its then new § 465(b) of the 1939 Code, embraced the basic definition of "wages" now contained in § 3401(a) of the 1954 Code. The Victory Tax was replaced by the Current Tax Payment Act of 1943, 57 Stat. 126, and was repealed by the Individual Income Tax Act of 1944, § 6(a), 58 Stat. 234. The structure of the 1943 Act survives to the present day.
16
In this legislation of 35 years ago Congress chose not to return to the inclusive language of the Tariff Act of 1913, but, specifically, "in the interest of simplicity and ease of administration," confined the obligation to withhold to "salaries, wages, and other forms of compensation for personal services." S.Rep.No.1631, 77th Cong., 2d Sess., 165 (1942).9 The committee reports of the time stated consistently that "wages" meant remuneration "if paid for services performed by an employee for his employer" (emphasis supplied). H.R.Rep.No.2333, 77th Cong., 2d Sess., 126 (1942); S.Rep.No.1631, 77th Cong., 2d Sess., 166 (1942); H.R.Rep.No.401, 78th Cong., 1st Sess., 22 (1943); S.Rep.No.221, 78th Cong., 1st Sess., 17 (1943); H.R.Rep.No.510, 78th Cong., 1st Sess., 29 (1943).
17
The current regulations also contain the "if" clause, Treas.Reg. on Employment Taxes, § 31.3401(a)-1(a)(2), 26 CFR § 31.3401(a)-1(a)(2) (1977), and then, in § 31.3401(a)-1(b)(2) recite: "Amounts paid specifically—either as advances or reimbursements—for traveling or other bona fide ordinarily and necessary expenses incurred or reasonably expected to be incurred in the business of the employer are not wages and are not subject to withholding." But § 31.3401(a)-1(b)(9) provides: "The value of any meals or lodging furnished to an employee by his employe is not subject to withholding if the value of the meals or lodging is excludable from the gross income of the employee. See § 1.119-1 of this chapter (Income Tax Regulations)." The Internal Revenue Service by its Regulations thus now would tie the withholding obligation of the employer to the income tax result for the employee.
IV
18
The Government, straightforwardly and simplistically, argues that the definition of "wages" in § 3401(a) corresponds to the first category of gross income set forth in § 61(a)(1), and that the two statutes "although not entirely congruent [in their] relationship," Brief for United States 11, have "equivalent scope," id., at 15. It is claimed that the meal allowance was compensatory, for it was paid for the performance of assigned service at the place the employer determined. Thus, it is said, there was a direct causal connection between the receipt of the allowance and the performance of services. The allowance, then, was part of a total package of remuneration designed to attract and hold the employee to the Company. The Government further argues that this is in accord with the Court's pronouncements as to what is compensation for purposes of the tax statutes. It states that § 3401(a) broadly defines "wages," and it cites Old Colony Trust Co. v. Commissioner of Internal Revenue, 279 U.S. 716, 49 S.Ct. 499, 73 L.Ed. 918 (1929), where the Court held employees taxable for the amount of their income taxes paid by their employers; Commissioner of Internal Revenue v. LoBue, 351 U.S. 243, 76 S.Ct. 800, 100 L.Ed. 1142 (1956), where the transfer of assets to an employee at less than fair market value in order to secure better service was held to result in taxable income to the employee; Social Security Board v. Nierotko, 327 U.S. 358, 66 S.Ct. 637, 90 L.Ed. 718 (1946), where the definition of wages under the Social Security Act was at issue; and Otte v. United States, 419 U.S. 43, 49-50, 95 S.Ct. 247, 42 L.Ed.2d 212 (1974), which concerned the payment of wage claims by a trustee in bankruptcy. For purposes of the tax law, the Government argues, there is no difference between benefits of this kind and traditional wage or salary payments. Both are "[c]ompensation for services" under § 61(a)(1) and "remuneration . . . for services" under § 3401(a). It would explain away the seemingly pertinent Treas.Reg. § 31.3401(a)-1(b)(2) on the ground that it relates only to business expenses that are deductible under § 162(a) of the Code, and that Correll excluded from the benefit of § 162(a) the cost of meals consumed during nonovernight travel. And it urges that what is important is that the payments at issue were a result of the employment relationship and were a part of the total of the personal benefits that arose out of that relationship.
V
19
We do not agree with this rather facile conclusion advanced by the Government. The case, of course, would flow in the Government's favor if the mere fact that the reimbursements were made in the context of the employer-employee relationship were to govern the withholding tax result. That they were so paid is obvious. But it is one thing to say that the reimbursements constitute income to the employees for income tax purposes, and it is quite another thing to say that it follows therefrom that the reimbursements in 1963 were subject to withholding. There is a gap between the premise and the conclusion and it is a wide one. Considerations that support subjectability to the income tax are not necessarily the same as the considerations that support withholding. To require the employee to carry the risk of his own tax liability is not the same as to require the employer to carry the risk of the tax liability of its employee. Required withholding, therefore, is rightly much narrower than subjectability to income taxation.
20
As we have noted above, withholding, under § 3402, is required only upon wages, and § 3401(a) defines wages as "all remuneratio . . . for services performed by an employee for his employer." When the withholding system was effectuated in 1942, the obligation was confined to wages, and the like, "in the interest of simplicity and ease of administration." S.Rep.No.1631, 77th Cong., 2d Sess., 165 (1942). And what is now Treas.Reg. § 31.3401(a)-1(b)(2), applicable to employers and excluding from the concepts of wages and of withholding amounts "paid specifically . . . for traveling or other bona fide ordinary and necessary expenses incurred . . . in the business of the employer," was issued originally—long prior to the Correll decision in 1967—as § 404.14 of T.D. 5277, 1943 Cum.Bull. 927, 941.10 There is nothing in Correll that relates to the withholding provisions, and there is nothing in Treas.Reg. § 31.3401(a)-1(b)(2) that incorporates any overnight concept. This is so despite the Government's assertion that "consistently" since 1940, that is, since I.T. 3395, 1940-2 Cum.Bull. 64 (relating to railroad employees and their deducting the cost of room rentals and meals for necessary rest while away from home), it has adhered to the overnight rule in determining income tax liability. Brief for United States 32. Such consistent adherence to the overnight rule in determining income tax liability—together with the consistent absence of any reference to the overnight rule in the withholding regulations—strongly indicates that it was intended that the overnight rule not apply in determining withholding tax obligations.
21
Decided cases have made the distinction between wages and income and have refused to equate the two in withholding or similar controversies. Peoples Life Ins. Co. v. United States, 373 F.2d 924, 932, 179 Ct.Cl. 318, 332 (1967); Humble Pipe Line Co. v. United States, 442 F.2d 1353, 1356, 194 Ct.Cl. 944, 950 (1971); Humble Oil & Refining Co. v. United States, 442 F.2d 1362, 194 Ct.Cl. 920 (1971); Stubbs, Overbeck & Associates v. United States, 445 F.2d 1142 (C.A.5 1971); Royster Co. v. United States, 479 F.2d, at 390;11 Acacia Mutual Life Ins. Co. v. United States, 272 F.Supp. 188 (D.C.Md.1967). The Government would distinguish these cases on the ground that some of them involved overnight travel, the expenses of which would be deductible, and that others were concerned with particularized allowances. We perceive the distinctions but are not persuaded that they blunt the basic difference between the wage and the income concepts the respective courts have emphasized.
22
An expansive and sweeping definition of wages, such as was indulged in by the Court of Appeals, 540 F.2d, at 302, and is urged by the Government here, is not consistent with the existing withholding system. As noted above, Congress chose simplicity, ease of administration, and confinement to wages as the standard in 1942. This was a standard that was intentionally narrow and precise. It has not been changed by Congress since 1942, although, of course, as is often the case, administrative and other pressures seek to soften and stretch the definition. Because the employer is in a secondary position as to liability for any tax of the employee, it is a matter of obvious concern that, absent further specific congressional action, the employer's obligation to withhold be precise and not speculative. See Humble Oil & Refining Co. v. United States, 442 F.2d, at 1369-1370, 194 Ct.Cl., at 933. See also H.R.Rep.No.94-1515, p. 489 (1976); U.S.Code Cong. & Admin.News 1976, p. 2897.12
23
In 1963 not one regulation or ruling required withholding on any travel expense reimbursement. The intimation was quite the other way. See Treas.Reg. § 31-3401(a)-1(b)(2). No employer, in viewing the regulations in 1963, could reasonably suspect that a withholding obligation existed. The 1940 ruling upon which the Government would erect its case, I.T. 3395, 1940-2 Cum.Bull. 64, predated the withholding regulations of 1943. Apart from the fact that this was a deduction ruling, it is also significant that the Government did not reflect it in its withholding regulations adopted shortly thereafter. With this omission on the part of the Government, it is hardly reasonable to require an employer to fill the gap on its own account. Further, in 1963 and for some time thereafter all judicial decisions were the other way, even on the deductibility issue. Only with Correll, decided by this Court in 1967, was there a ruling of nondeductibility. And until the Court of Appeals' decision in the present case, no court had ever held lunch reimbursements to be wages for withholding purposes. The first published pronouncement by the Internal Revenue Service with respect to withholding came only in 1969 with Rev.Rul. 69-592, 1969-2 Cum.Bull. 193, shortly after Correll came down. That Ruling's suggestion that withholding was a possible requirement (when reimbursed travel expenses exceeded travel deductions) contained no reference whatsoever to wages, and thus avoided any mention of the statutory requirement that the payment must be a wage to be subject to withholding.
24
This is not to say, of course, that the Congress may not subject lunch reimbursements to withholding if in its wisdom it chooses to do so by expanding the definition of wages for withholding. It has not done so as yet. And we cannot justify the Government's attempt to do so by judicial determination.
25
The judgment of the Court of Appeals is reversed.
26
It is so ordered.
27
Mr. Justice BRENNAN, with whom THE CHIEF JUSTICE and Mr. Justice POWELL join, concurring.
28
I join the Court's opinion, emphasizing that it does not decide "whether a new regulation that, for withholding purposes, would require the treatment of lunch reimbursements as wages under the existing statute would or would not be valid." Ante, at 32 n. 12. I share the Court's conclusion that petitioner met its obligations under Treas.Reg. § 31.3401(a)-1(b)(2) as that regulation was most reasonably interpreted in 1963. I write separately to state more fully my views on why petitioner cannot be subjected retroactively to withholding tax on the theory whether correct or not—espoused here by the Government. See ante, at 28-29.
29
* Those who administer the Internal Revenue Code unquestionably have broad authority to make tax rulings and regulations retroactiv . See 26 U.S.C. § 7805(b),1 construed in Dixon v. Commissioner, 381 U.S. 68, 85 S.Ct. 1301, 14 L.Ed.2d 223 (1965); Automobile Club of Michigan v. Commissioner of Internal Revenue, 353 U.S. 180, 77 S.Ct. 707, 1 L.Ed.2d 746 (1957).2 That authority is not unfettered, however, and conditions are present here that would make retroactive application of the withholding tax to petitioner's lunch payments an abuse of discretion.
30
The legislative history of the Internal Revenue Code does not reveal any evidence of congressional intent to make employers guarantors of the tax liabilities of their employees, which would in all likelihood be the result if withholding taxes can be assessed retroactively.3 Far from it. When Congress has changed the withholding provisions to enlarge the scope of the withholding base or to increase the tax rate, its uniform practice has been to give employers a grace period in which to bring their withholding practices in line with the new law.4 In the one instance where this has not been the case,5 Congress has made clear that its retroactive application of withholding tax changes was inadvertent and it has moved promptly to correct its error:
31
"The Tax Reform Act of 1976, enacted on October 4, 1976,
32
made several changes which increased tax liabilities from the beginn ng of 1976.
33
"In prior legislation (such as the Tax Reform Act of 1969) which the Congress passed late in the year but which imposed tax increases from the beginning of the year, the Congress, as a matter of equity and custom, has relieved taxpayers of any liability for additions to tax, interest, and penalties with respect to increases in estimated tax resulting from increases in tax liability . . . . Relying on Congressional assurances that the failure to provide such relief in the 1976 Act was an oversight which would be remedied, the Commissioner [has delayed tax assessments for 1976] . . . .
34
* * * * *
35
"The committee believes it is appropriate to grant to taxpayers affected by the 1976 legislation relief from additions to tax, interest, and penalties, similar to that which has traditionally been granted in connection with earlier legislation where provisions were enacted with retroactive application.
36
* * * * *
37
"[Therefore, t]he committee amendment . . . relieves employers of any liability for failure to withhold income tax during 1976, on any type of remuneration which was made taxable by the 1976 Act." S.Rep.No.95-66, pp. 85-86 (1977) (emphasis added); U.S.Code Cong. & Admin.News 1977, pp. 262-263.
38
See Tax Reduction and Simplification Act of 1977, § 404, 91 Stat. 155-156.
39
The only conclusion that can be drawn from Congress' consistent practice of avoiding retroactive imposition of withholding tax liability and its recent judgment that "equity and custom" require relief from inadvertent retroactive liability, I submit, is that additional withholding taxes should not, at least without good reason, be assessed against employers who did not know of and who had no reason to know of increased withholding obligations at the time wages had to be withheld.
40
Such notice, as the Court holds, ante, at 25-26, 29-30, was not given petitioner until at least 1967 and, for all that appears, possibly not until our decision in Commissioner of Internal Revenue v. Kowalski, 434 U.S. 77, 98 S.Ct. 315, 54 L.Ed.2d 252 (1977). Thus, the only question remaining is whether there is here some good reason to depart from customary practice. The United States does not suggest one, arguing instead that petitioner had ample notice of its obligations—a conclusion I join the Court in rejecting. Moreover, unlike the situation in Dixon and Automobile Club of Michigan, imposition of taxes retroactively here would not serve the important function of ensuring that all similarly situated taxpayers are assessed equally. Instead, the likely effect would be that the individual taxpayers who should have reported these meal reimbursements in income will be relieved of all taxes they should have paid, and petitioner will bear the tax directly rather than simply acting as a collection conduit for the United States, a result certainly not intended by Congress.
41
Mr. Justice POWELL, with whom THE CHIEF JUSTICE joins, concurring.
42
In addition to joining the Court's opinion, I also join Mr. Justice BRENNAN's concurring opinion addressing the question of retroactive application of the withholding tax. It seems particularly inappropriate for the Commissioner, absent express statutory authority, to impose retroactively a tax with respect to years prior to the date on which taxpayers are clearly put on notice of the liability. In other areas of the law, "notice," to be legally meaningful, must be sufficiently explicit to inform a reasonably prudent person of the legal consequences of failure to comply with a law or regulation. In view of the complexities of federal taxation, fundamental fairness should prompt the Commissioner to refrain from the retroactive assessment of a tax in the absence of such notice or of clear congressional authorization.
43
As the Court observes, ante, at 32, in 1963—the year in question—no regulation or ruling required withholding on any travel expense reimbursement, and the intima ions were to the contrary. It can safely be said that until recently (perhaps until our decision this Term in Commissioner of Internal Revenue v. Kowalski, 434 U.S. 77, 98 S.Ct. 315, 54 L.Ed.2d 252 (1977)), neither employers nor employees generally had notice of the asserted tax consequences of lunch reimbursement. In short, as Mr. Justice BRENNAN's opinion makes clear, the Commissioner abused his discretion in attempting the retroactive imposition of withholding tax liability.
44
Mr. Justice STEWART, concurring in the judgment.
45
Although agreeing with much that is said in the Court's opinion, I join only in its judgment.
46
The so-called overnight rule of United States v. Correll, 389 U.S. 299, 88 S.Ct. 445, 19 L.Ed.2d 537, has nothing whatever to do with the definition of either "income" or "wages." It is exclusively concerned with what deductions employees may take when they prepare their own tax returns.
47
The obligation of an employer to withhold upon wages depends not at all on what deductions his various employees may eventually report on their individual income tax returns. That is a question about which, as a matter of fact and of law, the employer can neither know nor care. The importation of the Correll rule into this case can do nothing, therefore, but confuse the issues actually before us.
48
I concur in the judgment of the Court because I think the reimbursements here involved were not, at the time they were made, "wages" within the meaning of § 3401(a) of the Internal Revenue Code of 1954 as interpreted by Treas.Reg. § 31.3401(a)-1(b)(2).
1
In 1960 the noon meal reimbursement was $1.30. In 1961 the union negotiated an increase to $1.40. Tr. 93.
2
The Company's controller testified that the expense accounts of employees entitled to reimbursement for actual amounts expended were carefully reviewed, were often regarded as questionable ($2.50, at the trial date, was considered questionable), and were disallowed if deemed not to be reasonable. Id., at 64-66.
3
The District Court in its findings, in addition to describing the rate as "modest," observed: "As a practical matter, it could hardly be considered a money making proposition for an employee." 405 F.Supp. 748, 749 (S.D.Ill.1975).
4
Ibid.
5
There are exceptions. E. g., 26 U.S.C. § 911(a).
6
E. g., Wilson v. United States, 412 F.2d 694 (C.A.1 1969); Commissioner of Internal Revenue v. Bagley, 374 F.2d 204 (C.A.1 1967), cert. denied, 389 U.S. 1046, 88 S.Ct. 761, 19 L.Ed.2d 838 (1968); Saunders v. Commissioner of Internal Revenue, 215 F.2d 768 (C.A.3 1954); Koerner v. United States, 550 F.2d 1362 (C.A.4), cert. denied, 434 U.S. 984, 98 S.Ct. 608, 54 L.Ed.2d 477 (1977); Smith v. United States, 543 F.2d 1155 (C.A.5 1976), vacated and remanded, 434 U.S. 978, 98 S.Ct. 600, 54 L.Ed.2d 473 (1977); United States v. Barrett, 321 F.2d 911 (C.A.5 1963); Magness v. Commissioner of Internal Revenue, 247 F.2d 740 (C.A.5 1957), cert. denied, 355 U.S. 931, 78 S.Ct. 412, 2 L.Ed.2d 414 (1958); Correll v. United States, 369 F.2d 87 (C.A.6 1966), rev'd, 389 U.S. 299, 88 S.Ct. 445, 19 L.Ed.2d 537 (1967); United States v. Morelan, 356 F.2d 199 (C.A.8 1966); Hanson v. Commissioner of Internal Revenue, 298 F.2d 391 (C.A.8 1962); United States v. Keeton, 383 F.2d 429 (C.A.10 1967).
7
"All persons . . . [or] corporations . . . having the control . . . or payment of . . . salaries [or] wages . . . of another person, exceeding $3,000 for any taxable year . . . are hereby authorized and required to deduct and withhold from such . . . income such sum as will be sufficient to pay the normal tax imposed thereon by this section . . . ."
8
Act of Oct. 3, 1917, § 1204(2), 40 Stat. 300.
9
The House would have included withholding on dividends and bond interest as well as wages. H.R.Rep.No.2333, 77th Cong., 2d Sess., 125 (1942).
10
Similarly, Treas.Reg. § 31.3401(a)-1(b)(10), promulgated originally as § 404.15 of T.D. 5277, excluded from "wages" facilities and privileges (such as entertainment, medical services, and courtesy discounts) offered by the employer. Yet those, obviously, are also offered in the employer-employee relationship. See S.Rep.No.830, 88th Cong., 2d Sess., 208 (1964); H.R.Rep.No.1149, 88th Cong., 2d Sess., 22 (1964); U.S.Code Cong. & Admin.News 1964, p. 1313; S.Rep.No.91-552, p. 110 (1969); H.R.Rep.No.91-413, p. 77 (1969). See also Rev.Rul. 55-520, 1955-2 Cum.Bull. 393; Rev.Rul. 56-249, 1956-1 Cum.Bull. 488; Rev.Rul. 58-301, 1958-1 Cum.Bull. 23; Rev.Rul. 58-145, 1958-1 Cum.Bull. 360; and Rev.Rul. 59-227, 1959-2 Cum.Bull. 13, modified and superseded prospectively by Rev.Rul. 75-44, 1975-1 Cum.Bull. 15, for other instances of payments made in the employer-employee relationship where withholding was not required despite includability for income tax purposes.
11
In the District Court in the Royster case, the Government abandoned its position that the income tax provisions of the Code were in pari materia with the withholding provisions. See 479 F.2d, at 388.
12
An imposition of withholding responsibility on the Company for the lunch reimbursements as far back as 1963 strikes us as somewhat retroactive in character and almost punitive in the light of the facts of this case.
Needless to say, we do not decide today whether a new regulation that, for withholding purposes, would require the treatment of lunch reimbursements as wages under the existing statute would or would not be valid.
1
"(b) Retroactivity of regulations or rulings.—The Secretary or his delegate may prescribe the extent, if any, to which any ruling or regulation, relating to the internal revenue laws, shall be applied without retroactive effect."
2
This case is very unlike either Dixon or Automobile Club of Michigan in each of which the Commissioner was held authorized to correct what we characterized as "mistakes of law." See 381 U.S., at 72, 85 S.Ct., at 1304; 353 U.S., at 183, 184, 77 S.Ct., at 709, 710. There is no simple sense in which the Commissioner is here merely undoing a mistake of law. Instead, as the Commissioner's recent withdrawal of his fringe-benefit regulations witnesses, 41 Fed.Reg. 56334 (1976), the bifurcation of payments made to employees by employers into those that are fringe benefits and hence income and hence taxable—and those that are merely reimbursements of moneys expended by the employee for the benefit of the employer's business—and hence are a cost of doing business as an employee and hence excludable or deductible from income—is by no means easy. In the field of fringe-benefit taxation, therefore, the fact that something is taxed today that was not taxed yesterday is not so much evidence of mistake corrected as of an evolving understanding of what changed circumstances, equity, and legislative purpose require. And, although I feel no compulsion to insist that fringe-benefit law must always have been as it is newly announced on the theory that administrative interpretation must reflect a constant congressional intent, cf. Dixon v. United States, supra, 381 U.S., at 73-75, 85 S.Ct., at 1304-1306. I of course do not suggest that the Commissioner's power to define income or wages is unfettered. It will be time enough to consider whether any particular fringe-benefit regulation is valid when and if such a regulation comes before this Court.
3
It is possible that the employer could sue each of his employees to recover the amount of withholding taxes retroactively assessed by the Government. The chance that such a method of recovery would be either practical or cost effective is remote, however.
4
One of the first instances of this policy can be found in the Revenue Act of 1942 itself. There, Congress raised the withholding tax rate on payments made to nonresident aliens and foreign corporations, see Internal Revenue Code of 1939, §§ 143-144, 53 Stat. 60-62, but nonetheless delayed the effective date of the increase
"until the tenth day after the enactment of the act in order to afford a reasonable period within which withholding agents will be informed of the higher rate applicable to payments made to nonresident aliens or nonresident foreign corporations." S.Rep.No.1631, 77th Cong., 2d Sess., 69 (1942); see Revenu Act of 1942, § 108(c), 56 Stat. 808.
Similarly withholding for the Victory Tax did not commence until tax years beginning after December 31, 1942, see id., § 172(a), 56 Stat. 884, although the Tax was passed in October 1942. Section 2(c) of the Current Tax Payment Act of 1943, 57 Stat. 139, also delayed imposition of modified withholding obligations for about three weeks.
A review of amendments to the withholding provisions of the 1954 Code reveals a uniform practice of prospective application of modifications to the withholding tax that would require an employer to withhold increased amounts from employees' pay.
The first such amendment to § 3401 is found in § 213 of Title II of the Revenue Act of 1964, which clarified and in some cases expanded the tax liability of employees for moving expenses and modified withholding correspondingly. See Tit. II, §§ 213(a), 213(c), 78 Stat. 50-52, adding respectively, 26 U.S.C. §§ 217 and 3401(a)(15). Congress, apparently recognizing that additional withholding might be required, stated in § 213(d): "The amendment made by subsection (c) shall apply with respect to remuneration paid after the seventh day following the date of enactment of this Act." 78 Stat. 52. By contrast, § 204 of the Act, 78 Stat. 36 which added § 79 of the Internal Revenue Code, 26 U.S.C. § 79, giving deductions to employees for group term life insurance contributions made by employers, and which created a corresponding deduction in the withholding tax (§ 3401(a)(14))—actually contracted the wage base and this change in withholding obligation was made retroactive. See § 204(d) of the Act, 78 Stat. 37.
In 1965, Congress modified the treatment of tip income under both the Social Security Act and the withholding provisions of the Code. Although the amending legislation was passed in July 1965, the modifications to
withholding did not take effect until January 1, 1966. See Social Security Amendments of 1965, Tit. III, § 313(f), 79 Stat. 385.
In 1966, Congress amended §§ 3401(a)(6) and 3401(a)(7), specifying that withholding on wages paid to aliens would thereafter be governed by Treasury Regulations. See Foreign Investors Tax Act of 1966, Tit. I, § 103(k), 80 Stat. 1554. This change could have required increased withholding and Congress, apparently recognizing this, delayed the effective date of the change to 1967. See § 103(n)(4), 80 Stat. 1555. Similarly, in 1972, Congress modified § 3401(a)(1) of the Code. Again, Congress provided: "The amendments made [to § 3401(a)(1)] shall apply to wages paid on or after the first day of the first calendar month which begins more than 30 days after the date of enactment of this Act." Pub.L.No.92-279, § 3(b), 86 Stat. 125. See also Employee Retirement Income Security Act of 1974, Tit. II, §§ 2002(g)(7), 2002(i)(2), 88 Stat. 970-971.
In the Tax Adjustment Act of 1966, Congress made a wholesale modification of the withholding tax tables found in § 3402 of the Code, 26 U.S.C. § 3402. Again, Congress created a grace period this time of over a month—before the new withholding provisions took effect. See Tax Adjustment Act of 1966, § 101(g), 80 Stat. 62. Further complex changes in withholding tables that increased withholding for many taxpayers were made in 1969, 1971, and 1976. In each instance but the last, changes were expressly made prospective. See Tax Reform Act of 1969, Tit. VIII, § 805(h), 83 Stat. 709; Revenue Act of 1971, Tit. II, § 208(i), 85 Stat. 517. As explained in the text, infra, Congress' failure to make the 1976 withholding changes prospective was an oversight and has been corrected.
Thus, although the withholding provisions of the Code have been frequently amended, there is only one instance of intentionally retroactive application of an amendment and in that case the amendment scaled down an employer's withholding obligations.
5
See n. 4, supra.
| 1112
|
435 U.S. 6
98 S.Ct. 909
55 L.Ed.2d 70
Michael Lee SIMPSON and Tommy Wayne Simpson, Petitioners,v.UNITED STATES. Michael Lee SIMPSON, Petitioner, v. UNITED STATES.
Nos. 76-5761 and 76-5796.
Argued Nov. 1, 1977.
Decided Feb. 28, 1978.
Syllabus
The punishment for bank robbery under 18 U.S.C. § 2113(a) may be enhanced under § 2113(d) when the robbery is committed "by the use of a dangerous weapon or device." Title 18 U.S.C. § 924(c) provides that whoever "uses a firearm to commit any felony for which he may be prosecuted in a court of the United States," shall be subject to a penalty in addition to the punishment rovided for the commission of such felony. Petitioners were convicted of two separate aggravated bank robberies and of using firearms to commit the robberies, in violation of §§ 2113(a) and (d) and 924(c), and were sentenced to consecutive terms of imprisonment on the robbery and firearms counts, the District Court rejecting their contention that that imposition of the cumulative penalties for the two crimes was impermissible because the § 2113(d) charges merged with the firearms offenses for purposes of sentencing. The Court of Appeals affirmed. Held: In a prosecution growing out of a single transaction of bank robbery with firearms, a defendant may not be sentenced under both § 2113(d) and § 924(c). This construction of those provisions is supported not only by § 924(c)'s legislative history but also by the established rules of statutory construction that "ambiguity concerning the ambit of criminal statutes should be resolved in favor of lenity," United States v. Bass, 404 U.S. 336, 347, 92 S.Ct. 515, 522, 30 L.Ed.2d 488; Rewis v. United States, 401 U.S. 808, 812, 91 S.Ct. 1056, 1059, 28 L.Ed.2d 493, and that precedence should be given to the terms of the more specific statute where a general statute and a specific statute speak to the same concern, even if the general provision was enacted later. Pp. 10-16.
542 F.2d 1177, reversed and remanded.
Robert W. Willmott, Jr., Lexington, Ky., for the petitioners.
H. Bartow Farr, III, for respondent.
Mr. Justice BRENNAN delivered the opinion of the Court.
1
The punishment for bank robbery of a fine of not more than $5,000 and imprisonment for not more than 20 years, or both, 18 U.S.C. § 2113(a), may be enhanced to a fine of not more than $10,000 and imprisonment for not more than 25 years, or both, when the robbery is committed "by the use of a dangerous weapon or device," 18 U.S.C. § 2113(d).1 Another statute, 18 U.S.C. § 924(c), provides that whoever "uses a firearm to commit any felony for which he may be prosecuted in a court of the United States . . . shall, in addition to the punishment provided for the commission of such felony, be sentenced to a term of imprisonment for not less than one year nor more than ten years," and "[i]n the case of his second or subsequent conviction under this subsection," to imprisonment for not less than 2 nor more than 25 years; "nor shall the term of imprisonment imposed under this subsection run concurrently with any term of imprisonment imposed for the commission of such felony."2 Petitioners were convicted of two separate bank robberies committed with firearms. The question for decision is whether §§ 2113(d) and 924(c) should be construed as intended by Congress to authorize, in the case of a bank robbery committed with firearms, not only the imposition of the increased penalty under § 2113(d), but also the imposition of an additional consecutive penalty under § 924(c).
2
* On September 8, 1975, petitioners, using handguns to intimidate the bank's employees, robbed some $40,000 from the East End Branch of the Commercial Bank of Middlesboro, Ky. App. 20. Less than two months later, on November 4, 1975, petitioners returned to Middlesboro and this time, again using handguns, robbed the West End Branch of the Commercial Bank of about the same amount.
3
Petitioners received a separate jury trial for each robbery. After the trial for the first robbery, they were convicted of both aggravated bank robbery, in violation of 18 U.S.C. §§ 2113(a) and (d), and of using firearms to commit the robbery, in violation of 18 U.S.C. § 924(c). They were sentenced to consecutive terms of 25 years' imprisonment on the robbery count and 10 years' imprisonment on the firearms count. After the trial for the second robbery, petitioners were again convicted of one count of aggravated bank robbery in violation of §§ 2113(a) and (d) and of one count of using firearms to commit the crime in violation of § 924(c); again each received a 25-year sentence for the robbery and a 10-year sentence for the firearms count, the sentences to run consecutively to each other and to the sentences previously imposed.
4
During the sentencing proceedings following each conviction, counsel for petitioners argued that the imposition of cumulative penalties for the two crimes was impermissible because the § 2113(d) charge merged with the firearms offense for purposes of sentencing. The District Court disagreed, holding that "the statutes and the legislative history indicat[e] an intention [by § 924(c)] to impose an additional punishment." App. 17. The Court of Appeals for the Sixth Circuit affirmed without a published opinion, 542 F.2d 1177 (1976). We granted certiorari, 430 U.S. 964, 97 S.Ct. 1643, 52 L.Ed.2d 355 (1977), to resolve an apparent conflict between the decision below and the decision of the Court of Appeals for the Eighth Circuit in United States v. Eagle, 539 F.2d 1166 (1976).3 We reverse.
II
5
Quite clearly, §§ 924(c) and 2113(d) are addressed to the same concern and designed to combat the same problem: the use of dangerous weapons—most particularly firearms—to commit federal felonies.4 Although we agree with the Court of Appeals that § 924(c) creates an offense distinct from the underlying federal felony, United States v. Ramirez, 482 F.2d 807 (CA2 1973); United States v. Sudduth, 457 F.2d 1198 (CA1 1972), we believe that this is th beginning and not the end of the analysis necessary to answer the question presented for decision.
6
In Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932), this Court set out the test for determining "whether two offenses are sufficiently distinguishable to permit the imposition of cumulative punishment." Brown v. Ohio, 432 U.S. 161, 166, 97 S.Ct. 2221, 2225, 53 L.Ed.2d 187 (1977). We held that "[t]he 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 a fact which the other does not." Blockburger v. United States, supra, at 304, 52 S.Ct. at 182. See also Brown v. Ohio, supra, at 166, 97 S.Ct., at 2225; Iannelli v. United States, 420 U.S. 770, 95 S.Ct. 1284, 43 L.Ed.2d 616 (1975); Gore v. United States, 357 U.S. 386, 78 S.Ct. 1280, 2 L.Ed.2d 1405 (1958). The Blockburger test has its primary relevance in the double jeopardy context, where it is a guide for determining when two separately defined crimes constitute the "same offense" for double jeopardy purposes. Brown v. Ohio, supra.5
7
Cases in which the Government is able to prove violations of two separate criminal statutes with precisely the same factual showing, as here, raise the prospect of double jeopardy and the possible need to evaluate the statutes in light of the Blockburger test. That test, the Government argues, is satisfied in this litigation.6 We need not reach the issue. Before an examination is made to determine whether cumulative punishments for the two offenses ar constitutionally permissible, it is necessary, following our practice of avoiding constitutional decisions where possible, to determine whether Congress intended to subject the defendant to multiple penalties for the single criminal transaction in which he engaged. Jeffers v. United States, 432 U.S. 137, 155, 97 S.Ct. 2207, 2218, 53 L.Ed.2d 168 (1977). Indeed, the Government concedes that "there remains at least a possibility that Congress, although constitutionally free to impose additional penalties for violation of 18 U.S.C. § 924(c) in a case like the present one, has otherwise disclosed its intention not to do so." Brief for United States 11. We believe that several tools of statutory construction applied to the statutes "in a case like the present one"—where the Government relied on the same proofs to support the convictions under both statutes—require the conclusion that Congress cannot be said to have authorized the imposition of the additional penalty of § 924(c) for commission of bank robbery with firearms already subject to enhanced punishment under § 2113(d). Cf. Gore v. United States, supra.
III
8
First is the legislative history of § 924(c). That provision, which was enacted as part of the Gun Control Act of 1968, was not included in the original Gun Control bill, but was offered as an amendment on the House floor by Representative Poff. 114 Cong.Rec. 22231 (1968).7 In his statement immediately following his introduction of the amendment, Representative Poff observed:
9
"For the sake of legislative history, it should be noted that my substitute is not intended to apply to title 18, sections 111, 112, or 113 which already define the penalties for the use of a firearm in assaulting officials, with sections 2113 or 2114 concerning armed robberies of the mail or banks, with section 2231 concerning armed assaults upon process servers or with chapter 44 which defines other firearm felonies." Id., at 22232.
10
This statement is clearly probative of a legislative judgment that the purpose of § 924(c) is already served whenever the substantive federal offense provides enhanced punishment for use of a dangerous weapon.8 Although these remarks are of course not dispositive of the issue of § 924(c)'s reach, they are certainly entitled to weight, coming as they do from the provision's sponsor. This is especially so because Representative Poff's explanation of the scope of his amendment is in complete accord with, and gives full play to, the deterrence rationale of § 924(c). United States v. Eagle, 539 F.2d, at 1172. Subsequent events in the Senate and the Conference Committee pertaining to the statute buttress our conclusion that Congress' view of the proper scope of § 924(c) was that expressed by Representative Poff. Shortly after the House adopted the Poff amendment, the Senate passed an amendment to the Gun Control Act, introduced by Senator Dominick, that also provided for increased punishment whenever a firearm was used to commit a federal offense. 114 Cong.Rec. 27142 (1968). According to the analysis of its sponsor, the Senate amendment, contrary to Mr. Poff's view of § 924(c), would have permitted the imposition of an enhanced sentence for the use of a firearm in the commission of any federal crime, even where allowance was already made in the provisions of the substantive offense for augmented punishment where a dangerous weapon is used. Id., at 27143. A Conference Committee, with minor changes,9 subsequently adopted the Poff version of § 924(c) in preference to the Dominick amendment. H.R.Conf.Rep.No.1956, 90th Cong., 2d Sess., 31-32 (1968), U.S.Code Cong. & Admin.News 1968, pp. 4410, 4426.
11
Second, to construe the statute to allow the additional sentence authorized by § 924(c) to be pyramided upon a sentence already enhanced under § 2113(d) would violate the established rule of construction that "ambiguity concerning the ambit of criminal statutes should be resolved in favor of lenity." United States v. Bass, 404 U.S. 336, 347, 92 S.Ct. 515, 522, 30 L.Ed.2d 488 (1971); Rewis v. United States, 401 U.S. 808, 812, 91 S.Ct. 1056, 1059, 28 L.Ed.2d 493 (1971). See Adamo Wrecking Co. v. United States, 434 U.S. 275, 284-285, 98 S.Ct. 566, 572-573, 54 L.Ed.2d 538 (1978). The legislative history of § 924(c) is of course sparse, yet what there is—particularly Representative Poff's statement and the Committee rejection of the Dominick amendment—points in the direction of a congressional view that the section was intended to be unavailable in prosecutions for violations of § 2113(d). Even where the relevant legislative history was not nearly so favorable to the defendant as this, this Court has steadfastly insisted hat "doubt will be resolved against turning a single transaction into multiple offenses." Bell v. United States, 349 U.S. 81, 84, 75 S.Ct. 620, 622, 99 L.Ed. 905 (1955); Ladner v. United States, 358 U.S. 169, 79 S.Ct. 209, 3 L.Ed.2d 199 (1958). See Prince v. United States, 352 U.S. 322, 77 S.Ct. 403, 1 L.Ed.2d 370 (1957). As we said in Ladner: "This policy of lenity means that the Court will not interpret a federal criminal statute so as to increase the penalty that it places on an individual when such an interpretation can be based on no more than a guess as to what Congress intended." 358 U.S., at 178, 79 S.Ct. at 214. If we have something "more than a guess" in this case, that something Representative Poff's commentary and the Conference Committee's rejection of the Dominick amendment—is incremental knowledge that redounds to petitioners' benefit, not the Government's.
12
Finally, our result is supported by the principle that gives precedence to the terms of the more specific statute where a general statute and a specific statute speak to the same concern, even if the general provision was enacted later. See Preiser v. Rodriguez, 411 U.S. 475, 489-490, 93 S.Ct. 1827, 1836, 36 L.Ed.2d 439 (1973). Cf. 2A C. Sands, Sutherland, Statutory Construction § 51.05 (4th ed. 1973). This guide to statutory construction has special cogency where a court is called upon to determine the extent of the punishment to which a criminal defendant is subject for his transgressions. In this context, the principle is a corollary of the rule of lenity, an outgrowth of our reluctance to increase or multiply punishments absent a clear and definite legislative directive. Indeed, at one time, the Government was not insensitive to these concerns respecting the availability of the additional penalty under § 924(c). In 1971, the Department of Justice found that interpretive preference for specific criminal statutes over general criminal statutes of itself sufficient reason to advise all United States Attorneys not to prosecute a defendant under § 924(c)(1) where the substantive statute the defendant was charged with violating already "provid[ed] for increased penalties where a firearm is used in the commission of the offense." 19 U.S. Attys. Bull. 63 (U.S. Dept. of Justice, 1971).
13
Obviously, the Government has since changed its view of the relationship between §§ 924(c) and 2113(d). We think its original view was the better view of the congressional understanding as to the proper interaction between the two statutes. Accordingly, we hold that in a prosecution growing out of a single transaction of bank robbery with firearms, a defendant may not be sentenced under both § 2113(d) and § 924(c). The cases are therefore reversed and remanded to the Court of Appeals for proceedings consistent with this opinion.
14
It is so ordered.
15
Mr. Justice REHNQUIST, dissenting.
16
I am unable to agree with the Court's conclusion in this litigation that petitioners, upon being convicted and sentenced under 18 U.S.C. § 2113(d) for armed robbery, could not have their sentence enhanced pursuant to the provisions of 18 U.S.C. § 924(c), which provides that when a defendant uses a firearm in the commission of a felony, he "shall, in addition to the punishment provided for the commission of such felony, be sentenced to a term of imprisonment for not less than one year nor more than ten years." The plain language of the statutes involved certainly confers this sentencing authority upon the District Court. The Court chooses to avoid this plain meaning by resort to a canon of construction with which no one disagrees, "our practice of avoiding constitutional decisions where possible," ante, at 12. The Court then relies on a statement made on the floor of the House of Representatives by Congressman Poff, who sponsored the amendment which became this part of the Gun Control Act of 1968, to the effect that the amendment would not apply to offenses governed by 18 U.S.C. § 2113. But neither of these proffered rationales justifies the Court's decision today.
17
The canon of construction which the Court purports to follow is like all other canons, only a guide to enable this Court to perform its function. As the Court said in Shapiro v. United States, 335 U.S. 1, 31, 68 S.Ct. 1375, 1391, 92 L.Ed. 1787 (1948):
18
"The canon of avoidance of constitutional doubts must, like the 'plain meaning' rule, give way where its application would produce a futile result, or an unreasonable result 'plainly at variance with the policy of the legislation as a whole.' "
19
While legislative history as well as the language of the statute itself may be used to interpret the meaning of statutory language, United States v. American Trucking Assns., 310 U.S. 534, 543, 60 S.Ct. 1059, 1063, 84 L.Ed. 1345 (1940), the decisions of this Court have established that some types of legislative history are substantially more reliable than others. The report of a joint conference committee of both Houses of Congress, for example, or the report of a Senate or a House committee, is accorded a good deal more weight than the remarks even of the sponsor of a particular portion of a bill on the floor of the chamber. See, e. g., Chandler v. Roudebush, 425 U.S. 840, 858, n. 36, 96 S.Ct. 1949, 1958 n. 36, 48 L.Ed.2d 416 (1976); United States v. Automobile Workers, 352 U.S. 567, 585-586, 77 S.Ct. 529, 538, 1 L.Ed.2d 563 (1957). It is a matter of common knowledge that at any given time during the debate, particularly a prolonged debate, of a bill the members of either House in attendance on the floor may not be great, and it is only these members, or those who later read the remarks in the Congressional Record, who will have the benefit of the floor remarks. In the last analysis, it is the statutory language embodied in the enrolled bill which Congress enacts, and that must be our first reference point in interpreting its meaning.
20
The Court's disregard of this plain meaning is inappropriate in this litigation both because of the circumstances under which the Gun Control Act was passed in June 1968, and because of the gauzy nature of the constitutional concerns which apparently underlie its reluctance to read the statutes as they are written. Several different bills dealing with firearms control, which had been bottled up in various stages of the legislative process prior to June 1968, were brought to the floor and enacted with dramatic swiftness following the assassination of Senator Robert F. Kennedy in the early part of that month. Senator Kennedy's assassination, following by less than three months the similar killing of Reverend Martin Luther King, obviously focused the attention of Congress on the problem of firearms control. It seems to me not only permissible but irresistible, in reading the language of the two statutes, to conclude that Congress intended when it enacted § 924(c) to authorize the enhancement of the sentence already imposed by virtue of 18 U.S.C. § 2113(d).
21
The Court expresses concern, however, that if this construction were adopted problems of double jeopardy would be raised by virtue of our decision in Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932). Blockburger, of course, was not based on the Double Jeopardy Clause of the Constitution, but simply upon an analysis of relevant principles of statutory construction for determining "whether two offenses are sufficiently distinguishable to permit the imposition of cumulative punishment." Brown v. Ohio, 432 U.S. 161, 166, 97 S.Ct. 2221, 2225, 53 L.Ed.2d 187 (1977); ante, at 11. To speak of a congressional provision for enhanced punishment for an offense, as § 924(c) clearly is, as raising constitutional doubts under the "Blockburger test" is to use the language of metaphysics, rather than of constitutional law.
22
Brown v. Ohio, supra, decided last Term, provides no more support for the majority's position. That case involved two e tirely separate and distinct prosecutions for the same act, one for the crime of stealing an automobile and the other for the admittedly lesser included offense of operating the same vehicle without the owner's consent. And even there the Court recognized that:
23
"[The] 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." 432 U.S., at 165, 97 S.Ct., at 2225. (footnote omitted).
24
Petitioners in this litigation were separately tried for two separate armed bank robberies, and were found guilty of both aggravated bank robbery in violation of 18 U.S.C. §§ 2113(a) and (d), and of using firearms to commit the robbery in violation of 18 U.S.C. § 924(c). In addition to imposing sentences on them authorized under the provisions of § 2113(d), the court imposed additional sentences which it believed and I believe were clearly authorized by the language of § 924(c). Certainly the language of the double jeopardy provision of the Fifth Amendment, which prohibits a person from being twice put in jeopardy of life or limb, has not the slightest application to this sort of criminal prosecution. It is only by an overly refined analysis, which first suggests that the double jeopardy prohibition encompasses enhancement of penalty for an offense for which there has been but one trial, and then concludes that the plain language of Congress providing for such enhancement shall not be read in that way in order to avoid this highly theoretical problem, that the Court is able to reach the result it does.
25
The language of § 924(c), together with the circumstances surrounding its enactment, makes it abundantly clear to me that it was intended to authorize enhancement of punishment in these circumstances. I do not believe that Congressman Poff's statement on the floor of the House of Representatives is sufficient to overcome the meaning of this language, and I think that § 924(c), so read, is clearly constitutional. I therefore dissent.
1
Title 18 U.S.C. §§ 2113(a) and (d) provide:
"(a) Whoever, by force and violence, or by intimidation, takes, or attempts to take, from the person or presence of another any property or money or any other thing of value belonging to, or in the care, custody, control, management, or possession of, any bank, credit union, or any savings and loan association; or
"Whoever enters or attempts to enter any bank, credit union, or any savings and loan association, or any building used in whole or in part as a bank, credit union, or as a savings and loan association, with intent to commit in such bank, credit union, or in such savings and loan association, or building, or part thereof, so used, any felony affecting such bank, credit union, or such savings and loan association and in violation of any statute of the United States, or any larceny—
"Shall be fined not more than $5,000 or imprisoned not more than twenty years, or both.
* * * * *
"(d) Whoever, in committing, or in attempting to commit, any offense defined in subsections (a) and (b) of this section, assaults any person, or puts in jeopardy the life of any person by the use of a dangerous weapon or device, shall be fined not more than $10,000 or imprisoned not more than twenty-five years, or both."
2
The complete text of 18 U.S.C. § 924(c) provides:
"(c) Whoever—
"(1) uses a firearm to commit any felony for which he may be prosecuted in a court of the United States, or
"(2) carries a firearm unlawfully during the commission of any felony for which he may be prosecuted in a court of the United States,
"shall, in addition to the punishment provided for the commission of such felony, be sentenced to a term of imprisonment for not less than one year nor more than ten years. In the case of his second or subsequent conviction under this subsection, such person shall be sentenced to a term of imprisonment for not less than two nor more than twenty-five years and, notwithstanding any other provision of law, the court shall not suspend the sentence in the case of a second or subsequent conviction of such person or give him a probationary sentence, nor shall the term of imprisonment imposed under this subsection run concurrently with any term of imprisonment imposed for the commission of such felony."
3
In agreement with the Court of Appeals for the Sixth Circuit in these cases are the Court of Appeals for the Fourth Circuit, United States v. Crew, 538 F.2d 575 (1976), and the Court of Appeals for the Fifth Circuit, Perkins v. United States, 526 F.2d 688 (1976).
4
Both the Senate and House Reports on the 1934 Bank Robbers Act, which first made bank robbery a federal offense and which included the provisions of § 2113(d), state that the legislation was directed at the rash of "gangsterism" by which roving bandits in the Southwest and Northwest would rob banks and then elude capture by state authorities by crossing state lines. S.Rep.No.537, 73d Cong., 2d Sess., 1 (1934); H.R.Rep.No.1461, 73d Cong., 2d Sess., 2 (1934). The vast majority of such bank robberies were undoubtedly accomplished by the use of guns of various sorts. Indeed, as originally proposed, the provision that became § 2113(d) covered only the use of "dangerous weapons." The "or device" language was added in response to concern expressed on the House floor that the provision would not reach the conduct of a bank robber who walked into a bank with a bottle of nitroglycerin and threatened to blow it up unless his demands were met. 78 Cong.Reg. 8132-8133 (1934). Thus, although § 2113(d) undoubtedly covers bank robberies with weapons and devices other than firearms, the use of guns to commit bank robbery was the primary evil § 2113(d) was designed to deter.
On the other hand, although the overriding purpose of § 924(c) was to combat the increasing use of guns to commit federal felonies, the ambit of that provision is broader. The section imposes increased penalties when a "firearm" is used to commit, or is unlawfully carried during the commission of any federal felony. Title 18 U.S.C. § 921(a)(3)(D) defines "firearm" to include "any destructive device." A "destructive device," in turn, is defined by § 921(a)(4)(A) to include "any explosive, incendiary, or poison gas—(i) bomb, (ii) grenade, (iii) rocket . . ., (iv) missile . . ., (v) mine, or (vi) device similar to any of the devices described in the preceding clauses." See United States v. Melville, 309 F.Supp. 774 (SDNY 1970).
5
The Double Jeopardy Clause "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), and prohibits multiple prosecutions for the "same offense," Jeffers v. United States, 432 U.S. 137, 150-151, 97 S.Ct. 2207, 2216, 53 L.Ed.2d 168 (1977).
6
In its attempt to demonstrate that §§ 924(c) and 2113(d) are distinct and separately punishable offenses under the Blockburger test, the Government apparently reads the phrase "by the use of a dangerous weapon or device" in § 2113(d) to modify the word "assaults" as well as the phrase "puts in jeopardy the life of any person." Brief for United States 9-10. The lower courts are divided on this issue. Those of the opinion that § 2113(d) is to be read as the Government reads it include United States v. Crew, supra, 538 F.2d, at 577. See Perkins v. United States, supra; United States v. Waters, 461 F.2d 248 (CA10 1972). Other courts read the provision disjunctively, and hold that the phrase "by the use of a dangerous weapon or device" modifies only the phrase "puts in jeopardy the life of any person" and not the word "assaults." United States v. Beasley, 438 F.2d 1279 (CA6 1971); United States v. Rizzo, 409 F.2d 400 (CA7 1969). See United States v. Coulter, 474 F.2d 1004 (CA9 1973). Although we have never authoritatively construed § 2113(d), we have implicitly given it the same gloss as the Government. Prince v. United States, 352 U.S. 322, 329 n. 11, 77 S.Ct. 403, 407, 1 L.Ed.2d 370 (1957). We now expressly adopt this reading of the statute. As Judge McCree observed in Beasley :
"[The language of § 2113(d)] clearly requires the commission of something more than the elements of the offense described in § 2113(a). Subsection (a) punishes an attempt to take 'from the person or presence of another any . . . thing of value . . . in the . . . custody . . . of any bank . . .' when that taking is done 'by force and violence, or by intimidation.' Force and violence is the traditional language of assault, and something more than an assault must be present to authorize the additional five year penalty under § 2113(d).
* * * * *
". . . In order to give lawful meaning to Congress' enactment of the aggravating elements in 18 U.S.C. § 2113(d), the phrase 'by the use of a dangerous weapon or device' must be read, regardless of punctuation, as modifying both the assault provision and the putting in jeopardy provision." 438 F.2d, at 1283-1284 (concurring in part and dissenting in part).
7
Because the provision was passed on the same day it was introduced on the House floor, it is the subject of no legislative hearings or committee reports.
8
Title 18 U.S.C. §§ 111, 112, and 2231 provide for an increased maximum penalty where a "deadly or dangerous weapon" is used to commit the substantive offense. Title 18 U.S.C. §§ 113(c) and 2114 enhance the punishment available for commission of the substantive offense when the defendant employs a "dangerous weapon."
9
The prohibitions on suspended sentences and probation were made applicable only to second and subsequent convictions, and restrictions on concurrent sentences were eliminated. Title II of the Omnibus Crime Control Act of 1970, 84 Stat. 1889, amended § 924(c) by reimposing the restriction that no sentence under that section could be served concurrently with any term imposed for the underlying felony. The amendment also reduced the minimum mandatory sentence of imprisonment for repeat offenders from five to two years.
| 01
|
435 U.S. 78
98 S.Ct. 948
55 L.Ed.2d 124
BOARD OF CURATORS OF the UNIVERSITY OF MISSOURI et al., Petitioners,v.Charlotte HOROWITZ.
No. 76-695.
Argued Nov. 7, 1977.
Decided March 1, 1978.
Syllabus
The academic performance of students at the University of Missouri-Kansas City Medical School is periodically assessed by the Council of Evaluation, a faculty-student body that can recommend various actions, including probation and dismissal; its recommendations are reviewed by the faculty Coordinating Committee, with ultimate approval by the Dean. After several faculty members had expressed dissatisfaction with the clinical performance of respondent medical student during a pediatrics rotation, the Council recommended that she be advanced to her final year on a probationary basis. Following further faculty dissatisfaction with respondent's clinical performance that year, the Council in the middle of the year again evaluated her academic progress and concluded that she should not be considered for graduation in June of that year and that, absent "radical improvement," she be dropped as a student. As an "appeal" of that decision, respondent was allowed to take examinations under the supervision of seven practicing physicians, only two of whom thereafter recommended that res ondent be allowed to graduate on schedule. Two others recommended that she be dropped from the school immediately; and three recommended that she not be allowed to graduate as scheduled but that she be continued on probation. The Council then reaffirmed its prior position. At a subsequent meeting, having noted that respondent's recent surgery rotation had been rated "low-satisfactory," the Council concluded that, barring reports of radical improvement, respondent should not be allowed to re-enroll; and when a report on another rotation turned out to be negative, the Council recommended that respondent be dropped. When notified of that decision, which the Coordinating Committee and Dean had approved, respondent appealed to the Provost, who after review sustained the decision. Respondent thereafter brought this action against petitioner officials under 42 U.S.C. § 1983, contending, inter alia, that she had not been accorded due process prior to her dismissal. The District Court, after a full trial, concluded that respondent had been afforded all rights guaranteed by the Fourteenth Amendment. The Court of Appeals reversed. Held: 1. The procedures leading to respondent's dismissal for academic deficiencies, under which respondent was fully informed of faculty dissatisfaction with her clinical progress and the consequent threat to respondent's graduation and continued enrollment, did not violate the Due Process Clause of the Fourteenth Amendment. Dismissals for academic (as opposed to disciplinary) cause do not necessitate a hearing before the school's decisionmaking body. Goss v. Lopez, 419 U.S. 565, 95 S.Ct. 729, 42 L.Ed.2d 725, distinguished. Pp. 84-91.
2. Though respondent contends that the case should be remanded to the Court of Appeals for consideration of her claim of deprivation of substantive due process, this case, as the District Court correctly concluded, reveals no showing of arbitrariness or capriciousness that would warrant such a disposition, even if it were deemed appropriate for courts to review under an arbitrariness standard an academic decision of a public educational institution. P. 91-92.
538 F.2d 1317, reversed.
Marvin E. Wright, Columbia, Mo., for petitioners.
Arthur A. Benson, II, Kansas City, Mo., for respondent.
Mr. Justice REHNQUIST delivered the opinion of the Court.
1
Respondent, a student at the University of Missouri-Kansas City Medical School, was dismissed by petitioner officials of the school during her final year of study for failure to meet academic standards. Respondent sued petitioners under 42 U.S.C. § 1983 in the United States District Court for the Western District of Missouri alleging, among other constitutional violations, that petitioners had not accorded her procedural due process prior to her dismissal. The District Court, after conducting a full trial, concluded that respondent had been afforded all of the rights guaranteed her by the Fourteenth Amendment to the United States Constitution and dismissed her complaint. The Court of Appeals for the Eighth Circuit reversed, 538 F.2d 1317 (1976), and a petition for rehearing en banc was denied by a divided court. 542 F.2d 1335 (1976). We granted certiorari, 430 U.S. 964, 97 S.Ct. 1642, 52 L.Ed.2d 355, to consider what procedures must be accorded to a student at a state educational institution whose dismissal may constitute a deprivation of "liberty" or "property" within the meaning of the Fourteenth Amendment. We reverse the judgment of the Court of Appeals.
2
* Respondent was admitted with advanced standing to the Medical School in the fall of 1971. During the final years of a student's education at the school, the student is required to pursue in "rotational units" academic and clinical studies pertaining to various medical disciplines such as obstetrics-gynecology, pediatrics, and surgery. Each student's academic performance at the school is evaluated on a periodic basis by the Council on Evaluation, a body comp sed of both faculty and students, which can recommend various actions including probation and dismissal. The recommendations of the Council are reviewed by the Coordinating Committee, a body composed solely of faculty members, and must ultimately be approved by the Dean. Students are not typically allowed to appear before either the Council or the Coordinating Committee on the occasion of their review of the student's academic performance.
3
In the spring of respondent's first year of study, several faculty members expressed dissatisfaction with her clinical performance during a pediatrics rotation. The faculty members noted that respondent's "performance was below that of her peers in all clinical patient-oriented settings," that she was erratic in her attendance at clinical sessions, and that she lacked a critical concern for personal hygiene. Upon the recommendation of the Council on Evaluation, respondent was advanced to her second and final year on a probationary basis.
4
Faculty dissatisfaction with respondent's clinical performance continued during the following year. For example, respondent's docent, or faculty adviser, rated her clinical skills as "unsatisfactory." In the middle of the year, the Council again reviewed respondent's academic progress and concluded that respondent should not be considered for graduation in June of that year; furthermore, the Council recommended that, absent "radical improvement," respondent be dropped from the school.
5
Respondent was permitted to take a set of oral and practical examinations as an "appeal" of the decision not to permit her to graduate. Pursuant to this "appeal," respondent spent a substantial portion of time with seven practicing physicians in the area who enjoyed a good reputation among their peers. The physicians were asked to recommend whether respondent should be allowed to graduate on schedule and, if not, whether she should be dropped immediately or allowed to remain on probation. Only two of the doctors recommended that respondent be graduated on schedule. Of the other five, two recommended that she be immediately dropped from the school. The remaining three recommended that she not be allowed to graduate in June and be continued on probation pending further reports on her clinical progress. Upon receipt of these recommendations, the Council on Evaluation reaffirmed its prior position.
6
The Council met again in mid-May to consider whether respondent should be allowed to remain in school beyond June of that year. Noting that the report on respondent's recent surgery rotation rated her performance as "low-satisfactory," the Council unanimously recommended that "barring receipt of any reports that Miss Horowitz has improved radically, [she] not be allowed to re-enroll in the . . . School of Medicine." The Council delayed making its recommendation official until receiving reports on other rotations; when a report on respondent's emergency rotation also turned out to be negative, the Council unanimously reaffirmed its recommendation that respondent be dropped from the school. The Coordinating Committee and the Dean approved the recommendation and notified respondent, who appealed the decision in writing to the University's Provost for Health Sciences. The Provost sustained the school's actions after reviewing the record compiled during the earlier proceedings.
II
A.
7
To be entitled to the procedural protections of the Fourteenth Amendment, respondent must in a case such as this demonstrate that her dismissal from the school deprived her of either a "liberty" or a "property" interest. Respondent has never alleged that she was deprived of a property interest. Because property interests are creatures of state law, Perry v. Sindermann, 408 U.S. 593, 599-603, 92 S.Ct. 2694, 2698-2700, 33 L.Ed.2d 570 (1972), respondent would have been required to show at trial that her seat at the Medical School was a "property" interest recognized by Missouri state law. Instead, respondent argued that her dismissal deprived her of "liberty" by substantially impairing her opportunities to continue her medical education or to return to employment in a medically related field.
8
The Court of Appeals agreed, citing this Court's opinion in Board of Regents v. Roth, 408 U.S. 564, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972).1 In that case, we held that the State had not deprived a teacher of any liberty or property interest in dismissing the teacher from a nontenured position, but noted:
9
[T]here is no suggestion that the State, in declining to re-employ the respondent, imposed on him a stigma or other disability that foreclosed his freedom to take advantage of other employment opportunities. The State, for example, did not invoke any regulations to bar the respondent from all other public employment in state universities." Id., at 573, 92 S.Ct., at 2707.
10
We have recently had an opportunity to elaborate upon the circumstances under which an employment termination might infringe a protected liberty interest. In Bishop v. Wood, 426 U.S. 341, 96 S.Ct. 2074, 48 L.Ed.2d 684 (1976), we upheld the dismissal of a policeman without a hearing; we rejected the theory that the mere fact of dismissal, absent some publicizing of the reasons for the action, could amount to a stigma infringing one's liberty:
11
"In Board of Regents v. Roth, 408 U.S. 564, 92 S.Ct. 2701, 33 L.Ed.2d 548, we recognized that the nonretention of an untenured college teacher might make him somewhat less attractive to other employers, but nevertheless concluded that it would stretch the concept too far 'to suggest that a person is deprived of "liberty" when he simply is not rehired in one position but remains as free as before to seek another.' Id., at 575, 92 S.Ct., at 2708. This same conclusion applies to the discharge of a public employee whose position is terminable at the will of the employer when there is no public disclosure of the reasons for the discharge.
12
"In this case the asserted reasons for the City Manager's decision were communicated orally to the petitioner in private and also were stated in writing in answer to interrogatories after this litigation commenced. Since the former communication was not made public, it cannot properly form the basis for a claim that petitioner's interest in his 'good name, reputation, honor, or integrity' was thereby impaired." Id., at 348, 96 S.Ct., at 2079 (footnote omitted).
13
The opinion of the Court of Appeals, decided only five weeks after we issued our opinion in Bishop, does not discuss whether a state university infringes a liberty interest when it dismisses a student without publicizing allegations harmful to the student's reputation. Three judges of the Court of App als for the Eighth Circuit dissented from the denial of rehearing en banc on the ground that "the reasons for Horowitz's dismissal were not released to the public but were communicated to her directly by school officials." Citing Bishop, the judges concluded that "[a]bsent such public disclosure, there is no deprivation of a liberty interest." 542 F.2d, at 1335. Petitioners urge us to adopt the view of these judges and hold that respondent has not been deprived of a liberty interest.
B
14
We need not decide, however, whether respondent's dismissal deprived her of a liberty interest in pursuing a medical career. Nor need we decide whether respondent's dismissal infringed any other interest constitutionally protected against deprivation without procedural due process. Assuming the existence of a liberty or property interest, respondent has been awarded at least as much due process as the Fourteenth Amendment requires. The school fully informed respondent of the faculty's dissatisfaction with her clinical progress and the danger that this posed to timely graduation and continued enrollment. The ultimate decision to dismiss respondent was careful and deliberate. These procedures were sufficient under the Due Process Clause of the Fourteenth Amendment. We agree with the District Court that respondent
15
"was afforded full procedural due process by the [school]. In fact, the Court is of the opinion, and so finds, that the school went beyond [constitutionally required] procedural due process by affording [respondent] the opportunity to be examined by seven independent physicians in order to be absolutely certain that their grading of the [respondent] in her medical skills was correct." App. 47.
16
In Goss v. Lopez, 419 U.S. 565, 95 S.Ct. 729, 42 L.Ed.2d 725 (1975), we held that due process requires, in connection with the suspension of a student from public school for disciplinary reasons, "that the student be given oral or written notice of the charges against him and, if he denies them, an explanation of the evidence the authorities have and an opportunity to present his side of the story." Id., at 581, 95 S.Ct., at 740. The Court of Appeals apparently read Goss as requiring some type of formal hearing at which respondent could defend her academic ability and performance.2 All that Goss required was an "informal give-and-take" between the student and the administrative body dismissing him that would, at least, give the student "the opportunity to characterize his conduct and put it in what he deems the proper context." Id., at 584, 95 S.Ct., at 741. But we have frequently emphasized that "[t]he very nature of due process negates any concept of inflexible procedures universally applicable to every imaginable situation." Cafeteria Workers v. McElroy, 367 U.S. 886, 895, 81 S.Ct. 1743, 1748, 6 L.Ed.2d 1230 (1961). The need for flexibility is well illustrated by the significant difference between the failure of a student to meet academic standards and the violation by a student of valid rules of conduct. This difference calls for far less stringent procedural requirements in the case of an academic dismissal.3
17
Since the issue first arose 50 years ago, state and lower federal courts have recognized that there are distinct differences between decisions to suspend or dismiss a student for disciplinary purposes and similar actions taken for academic reasons which may call for hearings in connection with the former but not the latter. Thus, in Barnard v. Inhabitants of Shelburne, 216 Mass. 19, 102 N.E. 1095 (1913), the Supreme Judicial Court of Massachusetts rejected an argument, based on several earlier decisions requiring a hearing in disciplinary contexts, that school officials must also grant a hearing before excluding a student on academic grounds. According to the court, disciplinary cases have
18
"no application. . . . Misconduct is a very different matter from failure to attain a standard of excellence in studies. A determination as to the fact involves investigation of a quite different kind. A public hearing may be regarded as helpful to the ascertainment of misconduct and useless or harmful in finding out the truth as to scholarship." Id., at 22-23, 102 N.E., at 1097.
19
A similar conclusion has been reached by the other state courts to consider the issue. See, e. g., Mustell v. Rose, 282 Ala. 358, 367, 211 So.2d 489, 498, cert. denied, 393 U.S. 936, 89 S.Ct. 297, 21 L.Ed.2d 272 (1968); cf. Foley v. Benedict, 122 Tex. 193, 55 S.W.2d 805 (1932). Indeed, until the instant decision by the Court of Appeals for the Eighth Circuit, the Courts of Appeals were also unanimous in concluding that dismissals for academic (as opposed to disciplinary) cause do not necessitate a hearing before the school's decisionmaking body. See Mahavongsanan v. Hall, 529 F.2d 448 (CA5 1976);4 Gaspar v. Bruton, 513 F.2d 843 (CA10 1975).5 These prior decisions of state and federal courts, over a period of 60 years, unanimously holding that formal hearings before decisionmaking bodies need not be held in the case of academic dismissals, cannot be rejected lightly. Cf. Snyder v. Massachusetts, 291 U.S. 97, 118-119, 131-132, 54 S.Ct. 330, 336-337, 341-342, 78 L.Ed. 674 (1934); Powell v. Alabama, 287 U.S. 45, 69-71, 53 S.C . 55, 64-65, 77 L.Ed. 158 (1932); Jackman v. Rosenbaum Co., 260 U.S. 22, 31, 43 S.Ct. 9, 10, 67 L.Ed. 107 (1922).
20
Reason, furthermore, clearly supports the perception of these decisions. A school is an academic institution, not a courtroom or administrative hearing room. In Goss, this Court felt that suspensions of students for disciplinary reasons have a sufficient resemblance to traditional judicial and administrative factfinding to call for a "hearing" before the relevant school authority. While recognizing that school authorities must be afforded the necessary tools to maintain discipline, the Court concluded:
21
"[I]t would be a strange disciplinary system in an educational institution if no communication was sought by the disciplinarian with the student in an effort to inform him of his dereliction and to let him tell his side of the story in order to make sure that an injustice is not done.
22
* * * * *
23
"[R]equiring effective notice and informal hearing permitting the student to give his version of the events will provide a meaningful hedge against erroneous action. At least the disciplinarian will be alerted to the existence of disputes about facts and arguments about cause and effect." 419 U.S., at 580, 583-584, 95 S.Ct., at 739, 741.
24
Even in the context of a school disciplinary proceeding, however, the Court stopped short of requiring a formal hearing since "further formalizing the suspension process and escalating its formality and adversary nature may not only make it too costly as a regular disciplinary tool but also destroy ts effectiveness as a part of the teaching process." Id., at 583, 95 S.Ct., at 741.
25
Academic evaluations of a student, in contrast to disciplinary determinations, bear little resemblance to the judicial and administrative fact-finding proceedings to which we have traditionally attached a full-hearing requirement. In Goss, the school's decision to suspend the students rested on factual conclusions that the individual students had participated in demonstrations that had disrupted classes, attacked a police officer, or caused physical damage to school property. The requirement of a hearing, where the student could present his side of the factual issue, could under such circumstances "provide a meaningful hedge against erroneous action." Ibid. The decision to dismiss respondent, by comparison, rested on the academic judgment of school officials that she did not have the necessary clinical ability to perform adequately as a medical doctor and was making insufficient progress toward that goal. Such a judgment is by its nature more subjective and evaluative than the typical factual questions presented in the average disciplinary decision. Like the decision of an individual professor as to the proper grade for a student in his course, the determination whether to dismiss a student for academic reasons requires an expert evaluation of cumulative information and is not readily adapted to the procedural tools of judicial or administrative decisionmaking.
26
Under such circumstances, we decline to ignore the historic judgment of educators and thereby formalize the academic dismissal process by requiring a hearing. The educational process is not by nature adversary; instead it centers around a continuing relationship between faculty and students, "one in which the teacher must occupy many roles—educator, adviser, friend, and, at times, parent-substitute." Goss v. Lopez, 419 U.S., at 594, 95 S.Ct., at 746 (Powell, J., dissenting). This is especially true as one advances through the varying regimes of the educational system, and the instruction becomes both more individualized and more specialized. In Goss, this Court concluded that the value of some form of hearing in a disciplinary context outweighs any resulting harm to the academic environment. Influencing this conclusion was clearly the belief that disciplinary proceedings, in which the teacher must decide whether to punish a student for disruptive or insubordinate behavior, may automatically bring an adversary flavor to the normal student-teacher relationship. The same conclusion does not follow in the academic context. We decline to further enlarge the judicial presence in the academic community and thereby risk deterioration of many beneficial aspects of the faculty-student relationship. We recognize, as did the Massachusetts Supreme Judicial Court over 60 years ago, that a hearing may be "useless or harmful in finding out the truth as to scholarship." Barnard v. Inhabitants of Shelburne, 216 Mass., at 23, 102 N.E., at 1097. "Judicial interposition in the operation of the public school system of the Nation raises problems requiring care and restraint. . . . By and large, public education in our Nation is committed to the control of state and local authorities." Epperson v. Arkansas, 393 U.S. 97, 104, 89 S.Ct. 266, 270, 21 L.Ed.2d 228 (1968). We see no reason to intrude on that historic control in this case.6
III
27
In reversing the District Court on procedural due process grounds, the Court of Appeals expressly failed to "reach the substantive due process ground advanced by Horowitz." 538 F.2d, at 1321 n. 5. Respondent urges that we remand the cause to the Court of Appeals for consideration of this additional claim. In this regard, a number of lower courts have implied in dictum that academic dismissals from state institutions can be enjoined if "shown to be clearly arbitrary or capricious." Mahavongsanan v. Hall, 529 F.2d, at 449. See Gaspar v. Bruton, 513 F.2d, at 850, and citations therein. Even assuming that the courts can review under such a standard an academic decision of a public educational institution, we agree with the District Court that no showing of arbitrariness or capriciousness has been made in this case.7 Courts are particularly ill-equipped to evaluate academic performance. The factors discussed in Part II with respect to procedural due process speak a fortiori here and warn against any such judicial intrusion into academic decisionmaking.8
28
The judgment of the Court of Appeals is therefore
29
Reversed.
30
Mr. Justice POWELL, concurring.
31
I join the Court's opinion because I read it as upholding the District Court's view that respondent was dismissed for academic deficiencies rather than for unsatisfactory personal conduct, and that in these circumstances she was accorded due process.
32
In the numerous meetings and discussions respondent had with her teachers and advisers, see opinion of Mr. Justice MARSHALL, post, at 98-99, culminating in the special clinical examination administered by seven physicians,1 ante, at 81, respondent was warned of her clinical deficiencies and given every opportunity to demonstrate improvement or question the evaluations. The primary focus of these discussions and examinations was on respondent's competence as a physician.
33
Mr. Justice MARSHALL nevertheless states that respondent's dismissal was based "largely" on "her conduct":
34
"It may nevertheless be true, as the Court implies, ante, at 91 n. 6, that the school decided that respondent's inadequacies in such areas as personal hygiene, peer and patient relations, and timeliness would impair her ability to be 'a good medical doctor.' Whether these inadequacies can be termed 'purely academic reasons,' as the Court calls them, ibid., is ultimately an irrelevant question, and one placing an undue emphasis on words rather than functional considerations. The relevant point is that respondent was dismissed largely because of her conduct, just as the students in Goss were suspended because of their conduct." Post, at 104 (emphasis added; footnotes omitted).
35
This conclusion is explicitly contrary to the District Court's undisturbed findings of fact. In one sense, the term "conduct" could be used to embrace a poor academic performance as well as unsatisfactory personal conduct. But I do not understand Mr. Justice MARSHALL to use the term in that undifferentiated sense.2 His opinion likens the dismissal of respondent to the suspension of the students in Goss v. Lopez, 419 U.S. 565, 95 S.Ct. 729, 42 L.Ed.2d 725 (1975), for personal misbehavior. There is evidence that respondent's personal conduct may have been viewed as eccentric, but—quite unlike the suspensions in Goss respondent's dismissal was not based on her personal behavior.
36
The findings of the District Court conclusively show that respondent was dismissed for failure to meet the academic standards of the Medical School. The court, after reviewing the evidence in some detail, concluded:
37
"The evidence presented in this case totally failed to establish that plaintiff [respondent] was expelled for any reason other than the quality of her work." App. 44.3
38
It is well to bear in mind that respondent was attending a medical school where competence in clinical courses is as much of a prerequisite to graduation as satisfactory grades in other courses. Respondent was dismissed because she was as deficient in her clinical work as she was proficient in the "book-learning" portion of the curriculum.4 Evaluation of her performance in the former area is no less an "academic" judgment because it involves observation of her skills and techniques in actual conditions of practice, rather than assigning a grade to her written answers on an essay question.5
39
Because it is clear from the findings of fact by the District Court that respondent was dismissed solely on academic grounds, and because the standards of procedural due process were abundantly met before dismissal occurred,6 I join the Court's opinion.
40
Mr. Justice WHITE concurring in part and concurring in the judgment.
41
I join Parts I, II-A, and III of the Court's opinion and concur in the judgment.
42
I agree with my Brother BLACKMUN that it is unnecessary to decide whether respondent had a constitutionally protected property or liberty interest or precisely what minimum procedures were required to divest her of that interest if it is assumed she had one. Whatever that minimum is, the procedures accorded her satisfied or exceeded that minimum.
43
The Court nevertheless assumes the existence of a protected interest, proceeds to classify respondent's expulsion as an "academic dismissal," and concludes that no hearing of any kind or any opportunity to respond is required in connection with such an action. Because I disagree with this conclusion, I feel constrained to say so and to concur only in the judgment.
44
As I see it, assuming a protected interest, respondent was at the minimum entitled to be informed of the reasons for her dismissal and to an opportunity personally to state her side of the story. Of course, she had all this, and more. I also suspect that expelled graduate or college students normally have the opportunity to talk with their expellers and that this sort of minimum requirement will impose no burden that is not already being shouldered and discharged by responsible institutions.
45
Mr. Justice MARSHALL, concurring in part and dissenting in part.
46
I agree with the Court that, "[a]ssuming the existence of a liberty or property interest, respondent has been awarded at least as much due process as the Fourteenth Amendment requires." Ante, at 84-85. I cannot join the Court's opinion, however, because it contains dictum suggesting that respondent was entitled to even less procedural protection than she received. I also differ from the Court in its assumption that characterization of the reasons for a dismissal as "academic" or "disciplinary" is relevant to resolution of the question of what procedures are required by the Due Process Clause. Finally, I disagree with the Court's decision not to remand to the Court of Appeals for consideration of respondent's substantive due process claim.
47
* We held in Goss v. Lopez, 419 U.S. 565, 95 S.Ct. 729, 42 L.Ed.2d 725 (1975), that
48
"due process requires, in connection with a suspension of 10 days or less, that the student be given oral or written notice of the charges against him and, if he denies them, an explanation of the evidence the authorities have an opportunity to present his side of the story." Id., at 581, 95 S.Ct., at 740.
49
There is no question that respondent received these protections, and more.1
50
According to the stipulation of facts filed in the District Court, respondent had a "discussion" with the Dean of the Medical School in mid-1972, at the close of her first year in school, during which she was notified of her unsatisfactory performance.2 The dean testified that he explained the nature of her problems to respondent twice at this meeting, so that she would fully understand them.3 A letter from the Dean followed shortly thereafter, in which respondent was advised that she was being placed on probation because of, inter alia, "a major deficiency" in her "relationships with others," and her failure to "kee[p] to established schedules" and "atten[d] carefully to personal appearance."4 The Dean again met with res ondent in October 1972 "to call attention in a direct and supportive way to the fact that her performance was not then strong."5
51
In January 1973, there was still another meeting between respondent and the Dean, who was accompanied by respondent's docent and the chairman of the Council on Evaluation. Respondent was there notified of the Council's recommendation that she not graduate and that she be dropped from school unless there was "radical improvement" in her "clinical competence, peer and patient relations, personal hygiene, and ability to accept criticism."6 A letter from the Dean again followed the meeting; the letter summarized respondent's problem areas and noted that they had been discussed with her "several times."7
52
These meetings and letters plainly gave respondent all that Goss requires: several notices and explanations, and at least three opportunities "to present [her] side of the story." 419 U.S., at 581, 95 S.Ct., at 740. I do not read the Court's opinion to disagree with this conclusion. Hence I do not understand why the Court indicates that even the "informal give-and-take" mandated by Goss, id., at 584, 95 S.Ct., at 741, need not have been provided here. See ante, at 85-86, 89-91. This case simply provides no legitimate opportunity to consider whether "far less stringent procedural requirements," ante., at 86, than those required in Goss are appropriate in other school contexts. While I disagree with the Court's conclusion that "far less" is adequate, as discussed infra, it is equally disturbing that the Court decides an issue not presented by the case before us. As Mr. Justice Brandeis warned over 40 years ago, the " 'great gravity and delicacy' " of our task in constitutional cases should cause us to " 'shrink' " from " 'anticipat[ing] a question of constitutional law in advance of the necessity of deciding it,' " and from " 'formulat[ing] a rule of constitutional law broader than is required by the precise facts to which it is to be applied.' " Ashwander v. TVA, 297 U.S. 288, 345-347, 56 S.Ct. 466, 483, 80 L.Ed. 688 (1936) (concurring opinion).
II
53
In view of the Court's dictum to the effect that even the minimum procedures required in Goss need not have been provided to respondent, I feel compelled to comment on the extent of procedural protection mandated here. I do so within a framework largely ignored by the Court, a framework derived from our traditional approach to these problems. According to our prior decisions as summarized in Mathews v. Eldridge, 424 U.S. 319, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976), three factors are of principal relevance in determining what process is due:
54
"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." Id., at 335, 96 S.Ct., at 903.
55
As the Court recognizes, the "private interest" involved here is a weighty one: "the deprivation to which respondent was subjected—dismissal from a graduate medical school—was more severe than the 10-day suspension to which the high school students were subjected in Goss." Ante, at 86 n. 3. One example of the loss suffered by respondent is contained in the stipulation of facts: Respondent had a job offer from the psychiatry department of another university to begin work in September 1973; the offer was contingent on her receiving the M.D. degree.8 In summary, as the Court of Appeals noted:
56
"The unrefuted evidence here establishes that Horowitz has been stigmatized by her dismissal in such a way that she will be unable to continue her medical education, and her chances of returning to employment in a medically related field are severely damaged." 538 F.2d 1317, 1321 (CA8 1976).
57
As Judge Friendly has written in a related context, when the State seeks "to deprive a person of a way of life to which [s]he has devoted years of preparation and on which [s]he . . . ha[s] come to rely," it should be required first to provide a "high level of procedural protection."9
58
Neither of the other two factors mentioned in Mathews justifies moving from a high level to the lower level of protection involved in Goss. There was at least some risk of error inherent in the evidence on which the Dean relied in his meetings with and letters to respondent; faculty evaluations of such matters as personal hygiene and patient and peer rapport are neither as "sharply focused" nor as "easily documented" as was, e. g., the disability determination involved in Mathews, supra, 424 U.S., at 343, 96 S.Ct., at 907. See Goss v. Lopez, 419 U.S., at 580, 95 S.Ct., at 739 (when decisionmaker "act[s] on the reports and advice of others . . . [t]he risk of error is not at all trivial").10
59
Nor can it be said that the university had any greater interest in summary proceedings here than did the school in Goss. Certainly the allegedly disruptive and disobedient students involved there, see id., at 569-571, 95 S.Ct., at 733-734, posed more of an immediate threat to orderly school administration than did respondent. As we noted in Goss, moreover, "it disserves . . . the interest of the State if [the student's] suspension is in fact unwarranted." Id., at 579, 95 S.Ct., at 739.11 Under these circumstances—with respondent having much more at stake than did the students in Goss, the administration at best having no more at stake, and the meetings between respondent and the Dean leaving some possibility of erroneous dismissal—I believe that respondent was entitled to more procedural protection than is provided by "informal give-and-take" before the school could dismiss her.
60
The contours of the additional procedural protection to which respondent was entitled need not be defined in terms of the traditional adversary system so familiar to lawyers and judges. See Mathews v. Eldridge, 424 U.S., at 348, 96 S.Ct., at 909. We have emphasized many times that "[t]he very nature of due process negates any concept of inflexible procedures universally applicable to every imaginable situation." Cafeteria Workers v. McElroy, 367 U.S. 886, 895, 81 S.Ct. 1743, 1748, 6 L.Ed.2d 1230 (1961); see, e. g., ante, at 86; Goss v. Lopez, supra, 419 U.S. at 578, 95 S.Ct., at 738. In other words, what process is due will vary "according to specific factual contexts." Hannah v. Larche, 363 U.S. 420, 442, 80 S.Ct. 1502, 1514, 4 L.Ed.2d 1307 (1960); see, e. g., Mathews v. Eldridge, supra, 424 U.S., at 334, 96 S.Ct., at 902; Morrissey v. Brewer, 408 U.S. 471, 481, 92 S.Ct. 2593, 2600, 33 L.Ed.2d 484 (1972); Bell v. Burson, 402 U.S. 535, 540, 91 S.Ct. 1586, 29 L.Ed.2d 90 (1971). See also Joint Anti-Fascist Refugee Com ittee v. McGrath, 341 U.S. 123, 162-163, 71 S.Ct. 624, 643-644, 95 L.Ed. 817 (1951) (Frankfurter, J., concurring).
61
In the instant factual context the "appeal" provided to respondent, see ante, at 81, served the same purposes as, and in some respects may have been better than, a formal hearing. In establishing the procedure under which respondent was evaluated separately by seven physicians who had had little or no previous contact with her, it appears that the Medical School placed emphasis on obtaining "a fair and neutral and impartial assessment."12 In order to evaluate respondent, each of the seven physicians spent approximately half a day observing her as she performed various clinical duties and then submitted a report on her performance to the Dean.13 It is difficult to imagine a better procedure for determining whether the school's allegations against respondent had any substance to them.14 Cf. Mathews v. Eldridge, supra, 424 U.S., at 337-338, 344, 96 S.Ct., at 904, 907 (use of independent physician to examine disability applicant and report to decisionmaker). I therefore believe that the appeal procedure utilized by respondent, together with her earlier notices from and meetings with the Dean, provided respondent with as much procedural protection as the Due Process Clause requires.15
III
62
The analysis in Parts I and II of this opinion illustrates that resolution of this case under our traditional approach does not turn on whether the dismissal of respondent is characterized as one for "academic" or "disciplinary" reasons. In my view, the effort to apply such labels does little to advance the due process inquiry, as is indicated by examination of the facts of this case.
63
The minutes of the meeting at which it was first decided that respondent should not graduate contain the following:
64
"This issue is not one of academic achievement, but of performance, relationship to people and ability to communicate." App. 218 (emphasis added).
65
By the customary measures of academic progress, moreover, no deficiency was apparent at the time that the authorities decided respondent could not graduate; prior to this time, according to the stipulation of facts, respondent had received "credit" and "satisfactory grades" in all of her courses, including clinical courses.16
66
It may nevertheless be true, as the Court implies, ante, at 91 n. 6, that the school decided that respondent's inadequacies in such areas as personal hygiene, peer and patient relations, and timeliness would impair her ability to be "a good medical doctor." Whether these inadequacies can be termed "purely academic reasons," as the Court calls them, ibid., is ultimately an irrelevant question, and one placing an undue emphasis on words rather than functional considerations. The relevant point is that respondent was dismissed largely because of her conduct,17 just as the students in Goss were suspended because of their conduct.18
67
The Court makes much of decisions from state and lower federal courts to support its point that "dismissals for academic . . . cause do not necessitate a hearing." Ante, at 87. The decisions on which the Court relies, however, plainly use the term "academic" in a much narrower sense than does the Court, distinguishing "academic" dismissals from ones based on "misconduct" and holding that, when a student is dismissed for failing grades, a hearing would serve no purpose.19 These cases may be viewed as consistent with our statement in Mathews v. Eldridge that "the probable value . . . of additional . . . procedural safeguards" is a factor relevant to the due process inquiry. 424 U.S., at 335, 96 S.Ct., at 903, quoted supra, at 100; see 424 U.S., at 343-347, 96 S.Ct., at 907-909. But they provide little assistance in resolving cases like the present one, where the dismissal is based not on failing grades but on conduct-related considerations.20
68
In such cases a talismanic reliance on labels should not be a substitute for sensitive consideration of the procedures required by due process.21 When the facts disputed are of a type susceptible of determination by third parties, as the allegations about respondent plainly were, see ante, at 91 n. 6, there is no more reason to deny all procedural protection to one who will suffer a serious loss than there was in Goss v. Lopez, and indeed there may be good reason to provide even more protection, as discussed in Part II, supra. A court's characterization of the reasons for a student's dismissal adds nothing to the effort to find procedures that are fair to the student and the school, and that promote the elusive goal of determining the truth in a manner consistent with both individual dignity and society's limited resources.
IV
69
While I agree with the Court that respondent received adequate procedural due process, I cannot join the Court's judgment because it is based on resol tion of an issue never reached by the Court of Appeals. That court, taking a properly limited view of its role in constitutional cases, refused to offer dictum on respondent's substantive due process claim when it decided the case on procedural due process grounds. See 538 F.2d, at 1321 n. 5, quoted ante, at 91. Petitioners therefore presented to us only questions relating to the procedural issue. Pet. for Cert. 2. Our normal course in such a case is to reverse on the questions decided below and presented in the petition, and then to remand to the Court of Appeals for consideration of any remaining issues.
70
Rather than taking this course, the Court here decides on its own that the record will not support a substantive due process claim, thereby "agree[ing]" with the District Court. Ante, at 92. I would allow the Court of Appeals to provide the first level of appellate review on this question. Not only would a remand give us the benefit of the lower court's thoughts,22 it would also allow us to maintain consistency with our own Rule 23(1)(c), which states that "[o]nly the questions set forth in the petition or fairly comprised therein will be considered by the court." By bypassing the courts of appeals on questions of this nature, we do no service to those courts that refuse to speculate in dictum on a wide range of issues and instead follow the more prudential, preferred course of avoiding decision—particularly constitutional decision—until " 'absolutely necessary' " to resolution of a case. Ashwander v. TVA, 297 U.S., at 347, 56 S.Ct., at 483 (Brandeis, J., concurring).
71
I would reverse the judgment of the Court of Appeals and remand for further proceedings.
72
Mr. Justice BLACKMUN, with whom Mr. Justice BRENNAN joins, concurring in part and dissenting in part.
73
The Court's opinion, and that of MR. JUSTICE MARSHALL, together demonstrate conclusively that, assuming the existence of a liberty or property interest, respondent received all the proce ural process that was due her under the Fourteenth Amendment. That, for me, disposes of this case, and compels the reversal of the judgment of the Court of Appeals.
74
I find it unnecessary, therefore, to indulge in the arguments and counterarguments contained in the two opinions as to the extent or type of procedural protection that the Fourteenth Amendment requires in the graduate-school-dismissal situation. Similarly, I also find it unnecessary to choose between the arguments as to whether respondent's dismissal was for academic or disciplinary reasons (or, indeed, whether such a distinction is relevant). I do agree with MR. JUSTICE MARSHALL, however, that we should leave to the District Court and to the Court of Appeals in the first instance the resolution of respondent's substantive due process claim and of any other claim presented to, but not decided by, those courts.
75
Accordingly, I, too, would reverse the judgment of the Court of Appeals and remand the case for further proceedings.
1
Respondent concedes that petitioners have not "invoke[d] any regulations to bar" her from seeking out employment in the medical field or from finishing her medical education at a different institution. Brief for Respondent 21. Cf. Board of Regents v. Roth, 408 U.S., at 573, 92 S.Ct., at 2707. Indeed, the Coordinating Committee in accepting the recommendation of the Council that respondent be dismissed, noted that "as with all students, should sufficient improvement take place, she could be considered for readmission to the School of Medicine." The Court of Appeals, however, relied on the testimony of a doctor employed by the Kansas City Veterans' Administration to the effect that respondent's dismissal would be "a significant black mark." On the Medical School side, it was the doctor's view that respondent "would have great difficulty to get into another medical school, if at all." As for employment, if two people were applying for a position with the Veterans' Administration with "otherwise . . . equal qualifications, roughly, I would lean heavily to the other person who was not dismissed from a graduate school." 538 F.2d 1317, 1320-1321, n. 3 (1976).
2
The Court of Appeals held without elaboration that the dismissal had been "effected without the hearing required by the fourteenth amendment." 538 F.2d, at 1321. No express indication was given as to what the minimum requirements of such a hearing would be. One can assume, however, that the contours of the hearing would be much the same as those set forth in Greenhill v. Bailey, 519 F.2d 5 (CA8 1975), which also involved an academic dismissal and upon which the Court of Appeals principally relied. Greenhill held that the student must be "accorded an opportunity to appear personally to contest [the allegations of academic deficiency]. We stop short, however, of requiring full trial-type procedures in such situations. A graduate or professional school is, after all, the best judge of its students' academic performance and their ability to master the required curriculum. The presence of attorneys or the imposition of rigid rules of cross-examination at a hearing for a student . . . would serve no useful purpose, notwithstanding that the dismissal in question may be of permanent duration. But an 'informal give-and-take' between the student and the administrative body dismissing him . . . would not unduly burden the educational process and would, at least, give the student 'the opportunity to characterize his conduct and put it in what he deems the proper context.' " Id., at 9 (footnote omitted), quoting Goss v. Lopez, 419 U.S., at 584, 95 S.Ct., at 741. Respondent urges us to go even further than the Court of Appeals and require "the fundamental safeguards of representation by counsel, confrontation, and cross-examination of witnesses." Brief for Respondent 36.
3
We fully recognize that the deprivation to which respondent was subjected—dismissal from a graduate medical school was more severe than the 10-day suspension to which the high school students were subjected in Goss. And a relevant factor in determining the nature of the requisite due process is "the private interest that [was] affected by the official action." Mathews v. Eldridge, 424 U.S. 319, 335, 96 S.Ct. 893, 903, 47 L.Ed.2d 18 (1976). But the severity of the deprivation is only one of several factors that must be weighed in deciding the exact due process owed. Ibid. We conclude that considering all relevant factors, including the evaluative nature of the inquiry and the significant and historically supported interest of the school in preserving its present framework for academic evaluations, a hearing is not required by the Due Process Clause of the Fourteenth Amendment.
4
"The district court's grant of relief is based on a confusion of the court's power to review disciplinary actions by educational institutions on the one hand, and academic decisions on the other hand. This Court has been in the vanguard of the legal development of due process protections for students ever since Dixon v. Alabama State Board of Education, 5 Cir. 1961, 294 F.2d 150, cert. denied 1961, 368 U.S. 930, 82 S.Ct. 368, 7 L.Ed.2d 193. However, the due process requirements of notice and hearing developed in the Dixon line of cases have been carefully limited to disciplinary decisions. When we explained that 'the student at the tax supported institution cannot be arbitrarily disciplined without the benefit of the ordinary, well recognized principles of fair play', we went on to declare that '[w]e know of no case which holds that colleges and universities are subject to the supervision or review of the courts in the uniform application of their academic standards. Indeed, Dixon infers to the contrary.' Wright v. Texas Southern University, 5 Cir. 1968, 392 F.2d 728, 729. Misconduct and failure to attain a standard of scholarship cannot be equated. A hearing may be required to determine charges of misconduct, but a hearing may be useless or harmful in finding out the truth concerning scholarship. There is a clear dichotomy between a student's due process rights in disciplinary dismissals and in academic dismissals." 529 F.2d, at 449-450.
5
In Greenhill v. Bailey, supra, the Court of Appeals held that a hearing had been necessary where a medical school not only dismissed a student for academic reasons but also sent a letter to the Liaison Committee of the Association of the American Medical Colleges suggesting that the student either lacked "intellectual ability" or had insufficiently prepared his course work. The court specifically noted that "there has long been a distinction between cases concerning disciplinary dismissals, on the one hand, and academic dismissals, on the other" and emphasized that it did not wish to "blur that distinction." 519 F.2d, at 8. In the court's opinion, the publicizing of an alleged deficiency in the student's intellectual ability removed the case from the typical instance of academic dismissal and called for greater procedural protections. Cf. Bishop v. Wood, 426 U.S. 341, 96 S.Ct. 2074, 48 L.Ed.2d 684 (1976).
6
Respondent contends in passing that she was not dismissed because of "clinical incompetence," an academic inquiry, but for disciplinary reasons similar to those involved in Goss. Thus, as in Goss, a hearing must be conducted. In this regard, respondent notes that the school warned her that significant improvement was needed not only in the area of clinical performance but also in her personal hygiene and in keeping to her clinical schedules. The record, however, leaves no doubt that respondent was dismissed for purely academic reasons, a fact assumed withou discussion by the lower courts. Personal hygiene and timeliness may be as important factors in a school's determination of whether a student will make a good medical doctor as the student's ability to take a case history or diagnose an illness. Questions of personal hygiene and timeliness, of course, may seem more analogous to traditional factfinding than other inquiries that a school may make in academically evaluating a student. But in so evaluating the student, the school considers and weighs a variety of factors, not all of which, as noted earlier, are adaptable to the factfinding hearing. And the critical faculty-student relationship may still be injured if a hearing is required.
7
Respondent alleges that the school applied more stringent standards in evaluating her performance than that of other students because of her sex, religion, and physical appearance. The District Court, however, found "There was no evidence that [respondent] was in any manner evaluated differently from other students because of her sex or because of her religion. With regard to [respondent's] physical appearance, this in and of itself did not cause [her] to be evaluated any differently than any of the other students." App. 45.
8
Respondent also contends that petitioners failed to follow their own rules respecting evaluation of medical students and that this failure amounted to a constitutional violation under Service v. Dulles, 354 U.S. 363, 77 S.Ct. 1152, 1 L.Ed.2d 1403 (1957). We disagree with both respondent's factual and legal contentions. As for the facts, the record clearly shows that the school followed its established rules, except where new rules had to be designed in an effort to further protect respondent, as with the practical "appeal" that petitioners allowed respondent to take. The District Court specifically found that "the progress status of [respondent] in the medical school was evaluated in a manner similar to and consistent with the evaluation of other similarly situated students, with the exception that [respondent's] docent . . . went to even greater lengths to assist [respondent] in an effort for her to obtain her M.D. degree, than he did for any of his other students." App. 45. As for the legal conclusion that respondent draws, both Service and Accardi v. United States ex rel. Shaughnessy, 347 U.S. 260, 74 S.Ct. 499, 98 L.Ed. 681 (1954), upon which Service relied, enunciate principles of federal administrative law rather than of constitutional law binding upon the States.
1
As a safeguard against erroneous judgment, and at respondent's request, App. 185, the Medical School submitted the question of respondent's clinical competency to a panel of "seven experienced physicians." Panel members were requested "to provide a careful, detailed, and thorough assessment of [respondent's] abilities at this time." Ibid. The Dean's letter to respondent of March 15, 1973, advised her quite specifically of the "general topic[s] in the curriculum about which we are asking [the panel] to evaluate your performance . . . ." Ibid. Each member of the examining panel was requested to "evaluate the extent of [respondent's] mastery of relevant concepts, knowledge, skills, and competence to function as a physician." Id., at 209. The examinations by members of the panel were conducted separately. Two of the doctors recommended that respondent be graduated although one added that "she would not qualify to intern at the hospital where he worked." Id., at 40. Each of the other five doctors submitted negative recommendations, although they varied as to whether respondent should be dropped from school immediately. Ibid.
2
Indeed, in view of Mr. Justice MARSHALL's apparent conclusion that respondent was dismissed because of some objectively determinable conduct, it is difficult to understand his conclusion that the special examination administered by the seven practicing physicians "may have been better than . . . a formal hearing." Post, at 102. That examination did not purport to determine whether, in the past, respondent had engaged in conduct that would warrant dismissal. Respondent apparently was not called upon to argue that she had not done certain things in the past. There were no facts found on that point. Nor did the doctors who administered the examination address themselves to respondent's conduct at the time, apart from her ability to perform the clinical tasks physicians must master. Mr. Justice ARSHALL says that this evaluation tested the truth of the assertions that respondent could not function as a doctor. Post, at 102-103 n. 14. This is a tacit recognition that the issue was an academic one, rather than one limited to whether respondent simply engaged in improper conduct.
3
The District Court also found:
"Considering all of the evidence presented, the Court finds that the grading and evaluating system of the medical school was applied fairly and reasonably to plaintiff, but plaintiff did not satisfy the requirements of the medical school to graduate from the medical school in June 1973." App. 45.
4
Dr. William Sirridge was the faculty member assigned to respondent as her "chief docent" (faculty adviser). A portion of his testimony was summarized by the District Court as follows:
"He [Dr. Sirridge] emphasized that plaintiff's [respondent's] problem was that she thought she could learn to be a medical doctor by reading books, and he advised her [that] the clinical skills were equally as important for obtaining the M. D. degree. He further testified that plaintiff cannot perform many of the necessary basic skills required of a practicing physician . . . ." Id., at 35.
5
Mr. Justice MARSHALL insists that calling this an academic judgment is an exercise in futility. Post, at 104-105 n. 18. As the Court points out, however, the distinction between dismissal for academic deficiency and dismissal for misconduct may be decisive as to the process that is due. Ante, at 89-90. A decision relating to the misconduct of a student requires a factual determination as to whether the conduct took place or not. The accuracy of that determination can be safeguarded by the sorts of procedural protections traditionally imposed under the Due Process Clause. An academic judgment also involves this type of objectively determinable fact—e. g., whether the student gave certain answers on an examination. But the critical decision requires a subjective, expert evaluation as to whether that performance satisfies some predetermined standard of academic competence. That standard, in turn, is set by a similarly expert judgment. These evaluations, which go far beyond questions of mere "conduct," are not susceptible of the same sorts of procedural safeguards that are appropriate to determining facts relating to misconduct. Thus the conclusion that a particular dismissal is academic—that it entails these expert evaluations—is likely to have controlling significance in determining how much and what sort of process is due.
6
University faculties must have the widest range of discretion in making judgments as to the academic performance of students and their entitlement to promotion or graduation. Contrary to the suggestion of Mr. Justice MARSHALL, post, at 104-105 n. 18, the fact that a particular procedure is possible or available does not mean that it is required under the Due Process Clause. Goss v. Lopez, 419 U.S. 565, 95 S.Ct. 729, 42 L.Ed.2d 725 (1975), simply does not speak to that point.
1
It is necessary to recount the facts underlying this conclusion in some detail, because the Court's opinion does not provide the relevant facts with regard to the notice and opportunity to reply given to respondent.
2
App. 15. It is likely that respondent was less formally notified of these deficiencies several months earlier, in March 1972. See id., at 100-101 (testimony of respondent's docent).
3
Id., at 146.
4
Id., at 15-16.
5
Id., at 147.
6
Id., at 18.
7
Id., at 182-183.
8
Id., at 16.
9
"Some Kind of Hearing," 123 U.Pa.L.Rev. 1267, 1296-1297 (1975) (revocation of professional licenses).
10
The inquiry about risk of error cannot be separated from the first inquiry about the private interest at stake. The more serious the consequences for the individual, the smaller the risk of error that will be acceptable.
11
The statements and letters of the Medical School Dean reflect a genuine concern that respondent not be wrongfully dismissed. See App. 147-150, 180-183, 185-187.
12
Id., at 150 (testimony of Dean); see id., at 185, 187, 208, 210 (letters to respondent and seven physicians).
13
See id., at 190-207.
14
Respondent appears to argue that her sex and her religion were underlying reasons for her dismissal and that a hearing would have helped to resolve the "factual dispute" between her and the school on these issues. Brief for Respondent 30; see id., at 51-52. See also ante, at 92 n. 7. But the only express grounds for respondent's dismissal related to deficiencies in personal hygiene, patient rapport, and the like, and, as a matter of procedural due process, respondent was entitled to no more than a forum to contest the factual underpinnings of these grounds. The appeal procedure here gave respondent such a forum—an opportunity to demonstrate that the school's charges were "unfair or mistaken," Goss v. Lopez, 419 U.S. 565, 581, 95 S.Ct. 729, 740, 42 L.Ed.2d 725 (1975).
15
Like a hearing, the appeal procedure and the meetings
"represent[ed] . . . a valued human interaction in which the affected person experience[d] at least the satisfaction of participating in the decision that vitally concern[ed] her . . . . [T]hese rights to interchange express the elementary idea that to be a person, rather than a thing, is at least to be consulted about what is done with one." L. Tribe, American Constitutional Law § 10-7 p. 503 (1978) (emphasis in original).
16
App. 12. Respondent later received "no credit" for her emergency-room rotation, the only course in which her grade was less than satisfactory. Ibid. This gr de was not recorded, according to the District Court, until after the decision had been made that respondent could not graduate. Id., at 31. When the Coordinating Committee made this decision, moreover, it apparently had not seen any evaluation of respondent's emergency-room performance. See id., at 229 (minutes of Coordinating Committee meeting).
17
Only one of the reasons voiced by the school for deciding not to graduate respondent had any arguable nonconduct aspects, and that reason, "clinical competence," was plainly related to perceived deficiencies in respondent's personal hygiene and relationships with colleagues and patients. See id., at 219. See also id., at 181, 182-183, 210.
18
The futility of trying to draw a workable distinction between "academic" and "disciplinary" dismissals is further illustrated by my Brother POWELL's concurring opinion. The opinion states that the conclusion in the text supra, "is explicitly contrary to the District Court's undisturbed findings of fact," ante, at 94, but it cites no District Court finding indicating that respondent's dismissal was based on other than conduct-related considerations. No such finding exists.
The District Court's statement that respondent was dismissed because of " 'the quality of her work,' " quoted ante, at 95, like statements to the effect that the dismissal was "solely on academic grounds," ante, at 96, is ultimately irrelevant to the due process inquiry. It provides no information on the critical question whether "the facts disputed are of a type susceptible of determination by third parties." Infra, at 106. Nor does
the District Court's finding that " 'the grading and evaluating system of the medical school was applied fairly,' " quoted ante, at 95 n. 3, advance resolution of this case, especially in view of the fact, noted supra, that respondent's grades in clinical courses, as in all other courses, were satisfactory when the decision was made that she could not graduate. This fact further indicates, contrary to MR. JUSTICE POWELL's intimation, ante, at 95, that the school found the deficiencies in respondent's clinical performance to be different from the deficiencies that lead to unsatisfactory grades in more traditional scholastic subjects.
MR. JUSTICE POWELL is correct, of course, in suggesting that the kind of conduct here involved is different from that involved in Goss v. Lopez, supra. Ante, at 94, and n. 2. The question facing the Medical School authorities was not solely whether respondent had misbehaved in the past, but rather whether her past, present, and likely future conduct indicated that she would not be "a good medical doctor," ante, at 91 n. 6. The appeal procedure of the school was well suited to aid in resolution of this question, since it involved "observation of her skills and techniques in actual conditions of practice," ante, at 95. It matters not at all whether the result of such observation is labeled "an 'academic' judgment," ibid., so long as it is recognized that the school authorities, having an efficient procedure available to determine whether their decision to dismiss respondent was "unfair or mistaken," Goss v. Lopez, supra, 419 U.S., at 581, 95 S.Ct., at 740, were constitutionally required to give respondent a chance to invoke he procedure, as they did, before depriving her of a substantial liberty or property interest. See supra, 100-102.
19
See Mahavongsanan v. Hall, 529 F.2d 448, 450 (CA5 1976); Gaspar v. Bruton, 513 F.2d 843, 849-851 (CA10 1975); Mustell v. Rose, 282 Ala. 358, 367, 211 So.2d 489, 497-498, cert. denied, 393 U.S. 936, 89 S.Ct. 297, 21 L.Ed.2d 272 (1968); Barnard v. Inhabitants of Shelburne, 216 Mass. 19, 19-20, 22-23, 102 N.E. 1095, 1096-1097 (1913).
20
See Brookins v. Bonnell, 362 F.Supp. 379, 383 (E.D.Pa.1973):
"This case is not the traditional disciplinary situation where a student violates the law or a school regulation by actively engaging in prohibited activities. Plaintiff has allegedly failed to act and comply with school regulations for admission and class attendance by passively ignoring these regulations. These alleged failures do not constitute misconduct in the sense that plaintiff is subject to disciplinary procedures. They do constitute misconduct in the sense that plaintiff was required to do something. Plaintiff contends that he did comply with the requirements. Like the traditional disciplinary case, the determination of whether plaintiff did or did not comply with the school regulations is a question of fact. Most importantly, in determining this factual question, reference is not made to a standard of achievement in an esoteric academic field. Scholastic standards are not involved, but rather disputed facts concerning whether plaintiff did or did not comply with certain school regulations. These issues adapt themselves readily to determination by a fair and impartial 'due process' hearing."
21
The Court's reliance on labels, moreover, may give those school administrators who are reluctant to accord due process to their students an excuse for not doing so. See generally Kirp, Proceduralism and Bureaucracy: Due Process in the School Setting, 28 Stan.L.Rev. 841 (1976).
22
It would be useful, for example, to have more careful assessments of whether the school followed its own rules in dismissing respondent and of what the legal consequences should be if it did not. The Court states that it "disagree[s] with both respondent's factual and legal contentions." Ante, at 92 n. 8. It then asserts that "the record clearly shows" compliance with the rules, ibid., but it provides neither elaboration of this conclusion nor discussion of the specific ways in which respondent contends that the rules were not followed, Brief for Respondent 42-46, contentions accompanied by citations to the same record that the Court finds so "clear." The statement of the District Court quoted by the Court, ante, at 92 n. 8, is not inconsistent on its face with respondent's claim that the rules were not followed, nor is there anything about the context of the statement to indicate that it was addressed to this claim, see App. 45.
Review by the Court of Appeals would clarify these factual issues, which rarely warrant the expenditure of this Court's time. If the Court's view of the record is correct, however, then I do not understand why the Court goes on to comment on the legal consequences of a state of facts that the Court has just said does not exist. Like other aspects of the Court's opinion, discussed supra, the legal comments on this issue are nothing more than confusing dictum. It is true, as the Court notes, ante, at 92 n. 8, that the decision from this Court cited by respondent was not expressly grounded in the Due Process Clause. Service v. Dulles, 354 U.S. 363, 77 S.Ct. 1152, 1 L.Ed.2d 1403 (1957). But that fact, which amounts to the only legal analysis offered by the Court on this question, hardly answers respondent's point that some compliance with previously established rules—particularly rules providing procedural safeguards—is constitutionally required before the State or one of its agencies may deprive a citizen of a valuable liberty or property interest.
| 34
|
435 U.S. 40
98 S.Ct. 927
55 L.Ed.2d 96
FEDERAL MARITIME COMMISSION et al., Petitioners,v.PACIFIC MARITIME ASSOCIATION et al.
No. 76-938.
Argued Dec. 7, 1977.
Decided March 1, 1978.
Syllabus
Respondent Pacific Maritime Association (PMA), a collective-bargaining agent for a multiemployer bargaining unit composed of various employers of Pacific coast dockworkers, entered into a collective-bargaining agreement with respondent Union regarding nonmember use of dockworkers jointly registered and dispatched through PMA-Union hiring halls whereby the nonmembers would participate in all fringe-benefit programs, pay the same dues and assessments as PMA members, use "steady" men in the same way as members, and be treated as members during work stoppages. Various nonmember public ports, which had previously competitively made separate (and assertedly in several respects more advantageous) agreements with the Union and the PMA, filed a petition with petitioner Federal Maritime Commission (FMC) asserting that the collective-bargaining agreement was subject to filing and approval under § 15 of the Shipping Act, 1916 (Act), which requires the filing of agreements between a common carrier by water (or "other person" furnishing facilities in connection with such a carrier) and another such carrier or person, including those agreements "controlling, regulating, preventing, or destroying competition." The FMC is empowered to "disapprove, cancel, or modify" any such agreement that it finds to be unjustly discriminatory or to be detrimental to commerce or the public interest. Before FMC approval or after disapproval agreements subject to filing are unlawful and may not be implemented. Lawful agreements are excepted from the antitrust laws. The FMC severed for initial determination the issues of its jurisdiction over the challenged agreement and whether there were considerations in the national labor policy that would nevertheless exempt the agreement from the filing and approval requirements of § 15. The FMC found that the purpose of the agreement was to place nonmembers on the same asis as members of the PMA and that its effect was to control or affect competition between members and nonmembers. Applying the standards articulated in United Stevedoring Corp. v. Boston Shipping Assn., 16 F.M.C. 7, the FMC found the agreement to be outside the protection of an FMC-recognized labor exemption and therefore subject to filing under § 15. The Court of Appeals reversed, ruling that any collective-bargaining agreement, regardless of its impact on competition, was exempt from the § 15 filing requirements. Though recognizing that its holding precluded for collective-bargaining agreements the antitrust immunity that § 15 approval provides, even in cases where shipping considerations would support an exemption, the court felt its holding necessary to implement the collective-bargaining system established by the federal statutes dealing with labor-management relations, including those in the shipping industry. Alternatively, the court held that if its per se rule was infirm the FMC had erred in refusing to exempt the challenged agreement. Held:
1. Collective-bargaining agreements as a class are not categorically exempt from § 15's filing requirements. Pp. 53-60.
(a) Because § 15 provides that an approved agreement will not be subject to the antitrust laws, it is clear that Congress (1) assigned to the FMC, not the courts, the task of initially determining which anticompetitive restraints are to be approved and which are to be disapproved under the general statutory guidelines, and (2) anticipated that various anticompetitive restraints, forbidden by the antitrust laws in other contexts, would be acceptable in the shipping industry. Pp. 53-56.
(b) The Court of Appeals' conclusion that prompt implementation of lawful collective-bargaining agreements could not be realized under the § 15 procedure overlooked the fact that under the Act's terms the vast majority of collective-bargaining arrangements would not be candidates for disapproval under § 15 and would be routinely approved even if filed. The FMC has determined that it will recognize a "labor exemption" from § 15 filing requirements for collective-bargaining contracts falling within the boundaries of the exemption defined by announced criteria like those applicable to the labor exemption from the antitrust laws. Pp. 56-58.
(c) The FMC's procedure for conditional approval of filed agreements pending a final decision as to their legality is adequate to overcome the Court of Appeals' concern that the § 15 procedures would prevent "the maintenance or prompt restoration of industrial peace." Pp. 59-60.
2. The Court of Appeals also erred in its alternative ground of decision that even under a balancing test weighing Shipping Act and labor relations considerations the challenged agreement should be exempt from filing, in support of which view the court suggested that the FMC had failed to realize that the agreement was an effort to force the public ports into a multiemployer bargaining unit against their will, an issue exclusively within the domain of the National Labor Relations Board. Here there was no effort to change bargaining units but to impose bargaining-unit terms on employers outside the units. Pp. 60-61.
3. The FMC made the requisite findings to sustain its decision. Pp. 61-63.
177 U.S.App.D.C. 248, 543 F.2d 395, reversed.
Daniel M. Friedman, Washington, D. C., for petitioners.
R. Frederic Fisher, San Francisco, Cal., for respondent Pacific Maritime Association.
Norman Leonard, San Francisco, Cal., for respondent International Longshoremen's and Warehousemen's Union.
Mr. Justice WHITE delivered the opinion of the Court.
1
Section 15 of the Shipping Act, 1916, 39 Stat. 733, as amended, 46 U.S.C. § 814,1 requires the filing with the Federal Maritime Commission (Commission) of seven categories of agreements between a common carrier by water, or "other person subject to this chapter ' and another such carrier or person.2 Among those agreements that must be filed are those "controlling, regulating, preventing, or destroying competition." The Commission is empowered to "disapprove, cancel, or modify" any such agreement that it finds to be "unjustly discriminatory or unfair as between carriers, shippers, exporters, importers, or ports, . . . or to operate to the detriment of the commerce of the United States, or to be contrary to the public interest . . . " and is directed to approve all filed agreements that do not transgress these standards. Before approval or after disapproval, agreements subject to filing are unlawful and may not be implemented.3 Agreements that are "lawful under this section" are excepted from those provisions of the antitrust laws contained in §§ 1-11 and 15 of Title 15 of the United States Code. Violations of the section are punishable by civil fines of not more than $1,000 per day.
2
The issue in this case is whether § 15 of the Shipping Act requires the filing and the Commission's approval or disapproval of a collective-bargaining agreement between respondent Pacific Maritime Association (PMA), a collective-bargaining agent for a multiemployer bargaining unit made up of various employers of Pacific coast dockworkers,4 and respondent International Longshoremen's and Warehousemen's Union (Union).
3
* This case arose when eight municipal corporations, owners and operators of Pacific coast port facilities and not members of the PMA,5 filed a petition with the Commission asserting that a 1972 agreement between PMA and the Union was subject to filing and approval under § 15 and was violative of §§ 15, 16, and 17 of the Shipping Act6 because it was unjust, discriminatory, and contrary to the public interest. Prior to this time, the nonmember ports had negotiated separate agreements with the Union which contained terms and conditions that in some respects differed from those contained in the collective-bargaining contracts between PMA and the Union. Fringe-benefit provisions varied, depending on the result of individual negotiations.7 In some respects the ports enjoyed more flexible work rules than did PMA; the ports, for example, were often permitted to use "steady crews," whereas, under the PMA contract rotation of workers among employers was the general rule.8 The existence of separate agreements between the Union and the public ports also enable the Union to exert negotiating pressure on PMA by striking PMA while continuing to work for the individual ports. The ports, nevertheless, were permitted by virtue of separate agreements with PMA to secure their work force through the PMA-Union hiring halls9 and to make the particular fringe-benefit payments called for by their individual contracts by contributing to the fringe-benefit funds maintained by PMA.10
4
During contract negotiations between PMA and the Union beginning in November 1970, one of the issues raised was whether nonmembers should continue to be allowed to participate in PMA hiring-hall and fringe-benefit plans. These privileges PMA desired to eliminate.11 Ultimately, the parties arrived at a Supplemental Memorandum of Understanding described as follows by the court below:
5
"In the Supplemental Memorandum the parties agreed that PMA would accept contributions from all nonmembers who executed a uniform participation agreement. This standard agreement, included in the Supplemental Memorandum, would require nonmembers, as a condition of using the joint dispatching halls for jointly registered employees, to participate in all fringe benefit programs, pay the same dues and assessments as PMA members, use steady men 'in the same way a member may do so,' and be treated as a member during work stoppages." 177 U.S.App.D.C. 248, 250-251, 543 F.2d 395, 397-39 (1976) (footnotes omitted).12
6
It was this agreement that the public ports asserted was subject to filing and Commission action under § 15.
7
In October 1972, the Commission severed for initial determination the issues of its jurisdiction over the challenged agreement, and, if the Supplemental Memorandum of Understanding was otherwise covered by § 15, whether there were considerations rooted in the national labor policy that would nevertheless exempt the agreement from the filing and approval requirements of the section. Thereafter, on June 24, 1973, PMA and the Union arrived at a new collective-bargaining agreement, which included a revised nonmember participation agreement replacing the Supplemental Memorandum of Understanding. By additional order, the Commission extended its jurisdictional inquiry to include the new contract with its nonmember participation provisions, which, although revised, were deemed by the Commission to have essentially the same impact for present purposes as the Supplemental Memorandum of Understanding.
8
In its subsequent report and order, Pacific Maritime Assn. Coopera ive Working Arrangements, 18 F.M.C. 196 (1975), the Commission first rejected the suggestion that because the case called for accommodating the Shipping Act and the labor statutes, as well as determining whether the parties had exceeded the scope of legitimate bargaining, the Commission should not itself decide the issue but should defer to the courts or to the National Labor Relations Board.13 The Commission also rejected the argument, as it had rejected similar arguments in New York Shipping Assn.—NYSA-ILA Man-Hour/Tonnage Method of Assessment, 16 F.M.C. 381 (1973), aff'd, New York Shipping Ass'n, Inc. v. Federal Maritime Commission, 495 F.2d 1215 (CA2), cert. denied, 419 U.S. 964, 95 S.Ct. 224, 42 L.Ed.2d 178 (1974), that § 15's filing requirement was not triggered because some members of PMA were neither carriers nor "other persons subject to the act" or because PMA's contract was with a labor union, which also was neither a carrier nor "other person."14 The Commission went on to find that the purpose of the nonmember participation agreement was to place nonmembers on the same competitive basis as members of the PMA and that its effect was to control or affect competition between members and nonmembers. The Commission concluded that the agreement was thus subject to filing and approval or disapproval under § 15, unless, because it was part of a collective-bargaining contract, it fell within that category of contracts that the national labor policy placed beyond the reach of the Shipping Act. The Commission had recognized this so-called "labor exemption" in United Stevedoring Corp. v. Boston Shipping Assn., 16 F.M.C. 7 (1972), and it proceeded to adjudicate the status of the instant agreement under the criteria announced in that case.15
9
The Commission's ultimate conclusion was that the nonmember participation agreement was not entitled to exemption from filing under § 15, primarily because its thrust was to bring nonmembers into parity with members by requiring employers outside the bargaining unit to submit to bargaining-unit terms. The result had "a potentially severe and adverse effect upon competition," 18 F.M.C., at 208, and only a superficial effect on the collective-bargaining process. The agreement was thus subject to filing and approval under § 15.
10
The Court of Appeals for the District of Columbia Circuit set aside the Commission's order, holding that the disputed agreement was wholly beyond the Commission's jurisdiction under § 15. 177 U.S.App.D.C. 248, 543 F.2d 395 (1976). The Commission's approach, which extends to labor agreements an exemption from Shipping Act requirements roughly equivalent to the exemption from the antitrust laws that the courts hold the labor statutes require for collective-bargaining contracts, was deemed an inadequate response to the demands of the national labor policy. Without disturbing the Commission's conclusion that the purpose and effect of the nonmember participation agreement at issue here were "to control or affect competition between members and nonmembers," 18 F.M.C. at 201, and hence that it was within the literal terms of § 15, and without holding that the agreement would qualify for an antitrust exemption under the relevant cases, the Court of Appeals ruled that any collective-bargaining contract, whatever its impact on competition, was exempt from filing with the Commission. Alternatively, the Court of Appeals held that, even if its per se rule excluding collective-bargaining agreements from the reach of § 15 was infirm, the Commission had erred in refusing to exempt from filing the particular nonmember participation agreement in question here.
11
We granted the petition for certiorari filed by the United States and the Commission, 430 U.S. 905, 97 S.Ct. 1172, 51 L.Ed.2d 580 (1977), which raises two issues: whether the national labor policy requires exempting collective-bargaining contracts as a class from the filing requirements of § 15 and, if not, whether the agreement at issue here is nevertheless exempt from those requirements.
II
12
We cannot agree with the holding below that, whatever their effect on competition might be, collective-bargaining contract are categorically exempt from the filing requirements of § 15 of the Shipping Act. Section 15 on its face reaches any contract between carriers "controlling, regulating, preventing, or destroying competition." If a contract is of that nature, it is within the reach of § 15 and subject to the Commission's jurisdiction, and it is quite untenable to suggest that collective-bargaining contracts never control, regulate, prevent, or destroy competition. See United Mine Workers of America v. Pennington, 381 U.S. 657, 85 S.Ct. 1585, 14 L.Ed.2d 626 (1965); Allen Bradley Co. v. Local Union No. 3, Intern. Broth. of Elec. Workers, 325 U.S. 797, 65 S.Ct. 1533, 89 L.Ed. 1939 (1945). If subject to § 15, a filed agreement must be approved by the Commission unless it is discriminatory or unfair, operates to the detriment of the commerce of the United States, or is contrary to the public interest. Because § 15 provides that an approved agreement will not be subject to the antitrust laws, it is apparent that Congress assigned to the Commission, not to the courts, the task of initially determining which anticompetitive restraints are to be approved and which are to be disapproved under the general statutory guidelines. It is equally apparent that as a substantive matter, Congress anticipated that various anticompetitive restraints, forbidden by the antitrust laws in other contexts, would be acceptable in the shipping industry.
13
That the Commission is the public arbiter of competition in the shipping industry is reflected in prior holdings that in reaching its decision under § 15 the Commission must "consider the antitrust implications of an agreement before approving it," FMC v. Seatrain Lines, Inc., 411 U.S. 726, 739, 93 S.Ct. 1773, 1782, 36 L.Ed.2d 620 (1973), and should approve an anticompetitive agreement only if it is " 'required by a serious transportation need, necessary to secure important public benefits or in furtherance of a valid regulatory purpose of the Shipping Act.' " FMC v. Aktiebolaget Svenska Amerika Linien, 390 U.S. 238, 243, 88 S.Ct. 1005, 1009, 19 L.Ed.2d 1071 (1968). The Commission, nevertheless, may approve agreements "even though they are violative of the antitrust laws . . . ." Seatrain, supra, 411 U.S., at 728, 93 S.Ct., at 1776.
14
The removal of the task of initially overseeing private restraints on competition from the regime of the antitrust laws and the courts is not a historical anachronism that we are entitled to ignore. Congress responded to Federal Maritime Board v. Isbrandtsen Co., 356 U.S. 481, 78 S.Ct. 851, 2 L.Ed.2d 926 (1958), which held that a particular system of dual rates adopted by a shipping conference violated § 14 of the Shipping Act, by suspending the effect of that decision pending full study and permanent legislation. After extensive investigation, important amendments were forthcoming in 1961, Pub.L. 87-346, 75 Stat. 763; but the Act's basic approach—that the regulation of competition in the shipping industry is to be an administrative function, subject to judicial review—was reaffirmed. Indeed, § 15 was amended "by enlarging and clarifying the [Commission's] powers over agreements filed thereunder" by, among other things the addition of the public interest standard to § 15. H.R.Rep. No. 498, 87th Cong., 1st Sess., 17-18 (1961). Section 15 was declared by the Antitrust Subcommittee of the House Judiciary Committee, which undertook a three-year study of "the entire gamut of antitrust problems in the ocean freight industry . . . ," to be "the heart of the Shipping Act." H.R.Rep. No. 1419, 87th Cong., 2d Sess., 2, 15 (1962).
15
It is appropriate, therefore, that the Court has recognized the broad reach of § 15 and resisted improvident attempts to narrow it. In Volkswagenwerk Aktiengesellschaft v. FMC, 390 U.S. 261, 88 S.Ct. 929, 19 L.Ed.2d 1090 (1968), a collective-bargaining agreement between PMA and the Union included a provision requiring PMA to create a sizable fund o be used to mitigate the impact of technological unemployment upon employees. PMA reserved the right to determine how the fund was to be raised, and thereafter it settled upon a particular method by which its members would contribute to the fund. The issue then arose whether this latter agreement was within the Commission's jurisdiction under § 15. The Commission held that, although the assessment formula arrived at was within the literal language of the section, it was exempt from filing since § 15 should be applied only to those agreements that affect competition among the carriers in their dealings with the shipping and traveling public.16 The Court of Appeals affirmed; but we reversed, rejecting the Commission's "extremely narrow view of a statute that uses expansive language." 390 U.S., at 273, 88 S.Ct., at 936. In response to the Commission's expressed desire to read § 15 narrowly in order to minimize the antitrust exemption, we noted that "antitrust exemption results, not when an agreement is submitted for filing, but only when the agreement is actually approved . . . ," 390 U.S., at 273, 88 S.Ct., at 936, and that "in deciding whether to approve an agreement, the Commission is required under § 15 to consider antitrust implications." Id., at 273-274, 88 S.Ct., at 936. Hence, "[t]o limit § 15 agreements that 'affect competition,' as the Commission used that phrase . . . simply [did] not square with the structure of the statute," id., at 275, 88 S.Ct., at 937, and "would [render] virtually meaningless" major parts of § 15's filing provisions. 390 U.S., at 275 n. 23, 88 S.Ct., at 937 n. 23.
16
Because Volkswagenwerk dealt only with the agreed-upon assessment formula, the Court noted that no question had been raised about the validity of the underlying collective-bargaining contract. The opinion does not, therefore, determine one way or the other whether collective-bargaining contracts are ever within the reach of § 15; but the Court did emphasize the breadth of the statutory language and the determination of Congress, reflected in § 15, to "subject to the scrutiny of a specialized governmental agency the myriad of restrictive agreements in the maritime industry." 390 U.S., at 276, 88 S.Ct., at 937. At the very least, the opinion counsels against implying broad exemptions for agreements, collective-bargaining contracts or otherwise, whose impact on competition is "neither de minimis nor routine." Id., at 277, 88 S.Ct., at 938.
17
In the present case, the Court of Appeals' removal from the Commission's jurisdiction of all collective-bargaining contracts, regardless of how anticompetitive they might be, and whether or not exempt under the antitrust laws, would appear to be contrary to the plain terms of § 15. The Court of Appeals was not unaware that it was depriving the Commission of the power to approve or disapprove anticompetitive contracts that § 15 on its face clearly confers, but it thought its holding necessary to implement the collective-bargaining system established by the federal statutes dealing with labor-management relations, including those in the shipping industry. While there is no doubt that the courts must give all due effect to each of two seemingly overlapping statutes, we think the Court of Appeals misconceived its task here.
18
The principal objection to Commission jurisdiction over any bargaining agreement was that under § 15 agreements subject to filing cannot be implemented prior to approval or after disapproval. This alone was enough to exempt collective-bargaining contracts from filing under § 15, for, as the Court f Appeals understood the collective-bargaining system mandated by the National Labor Relations Act, one of its essential elements is for the parties to be legally free "to implement promptly the compromise agreements worked out in eleventh-hour bargaining sessions . . . ." 177 U.S.App.D.C., at 257, 543 F.2d, at 406. Subjecting negotiated labor agreements to filing and approval "would make nearly impossible the maintenance or prompt restoration of industrial peace." Ibid. Prompt implementation of lawful collective-bargaining agreements is indeed an important consideration, but the fears of the Court of Appeals as to the possible impact of the Commission's decision on the collective-bargaining process are exaggerated and do not justify the major surgery performed on § 15 by the decision below. In the first place, the Commission's decision would not require the filing of all or even most of the collective-bargaining contracts entered into in the shipping industry. Because § 15 applies only to agreements between at least two parties subject to the Act, see n. 1, supra, collective-bargaining contracts between the Union and a single employer would not have to be filed. Moreover, not all collective-bargaining agreements between the Union and PMA would be subject to the requirements of § 15. Under § 15, filed agreements must be approved unless they operate to the detriment of commerce, are contrary to the public interest, or otherwise fail to satisfy the specified standards. Under these standards, it would be difficult to conclude that ordinary collective-bargaining agreements establishing wages, hours, and working conditions in a bargaining unit could or would be disapproved as contrary to the public interest or detrimental to commerce. Such contracts are the product of bargaining compelled by the labor laws, which themselves were enacted pursuant to the power of Congress to regulate commerce in the public interest. They are also the kind of contracts that the courts, because of the collective-bargaining regime established by the labor laws, in the main have declared to be beyond the reach of the antitrust laws, the statutes specifically designed to protect the commerce of the United States from anticompetitive restraints.
19
The Commission has recognized that the vast majority of collective-bargaining arrangements cannot be deemed candidates for disapproval under § 15 and that they would be routinely approved even if filed. Consistent with its power under § 35 of the Shipping Act, 39 Stat. 738, as added, 80 Stat. 1358, 46 U.S.C. § 833a, in appropriate circumstances to exempt from § 15 filing requirements "any class of agreements between persons subject to this chapter or any specified activity of such persons,"17 the Commission, by adjudication, has determined that it will recognize a "labor exemption" from the filing requirements of § 15 for collective-bargaining contracts falling within the boundaries of the exemption defined by its announced criteria.18 In doing so, the Commission has been guided by its understanding of our cases, and those of other courts, that recognize and define an exemption from the antitrust laws for certain contracts between management and labor. It appears to be the intention of the Commission to exercise jurisdiction over only those collective-bargaining contracts that in its view would not be exempt from examination under antitrust laws and that should be reviewed under Shipping Act standards. We therefore doubt that the Commission's decision will have a broad impact on labor-management relations. At least, it has not been demonstrated at this juncture that the collective-bargaining concerns cited by the Court of Appeals are sufficient to require complete exemption for labor agreements and the consequent partial emasculation of the statutory scheme for administrative review of anticompetitive agreements. Second, the Commission, in any event, claims the authority, which it has exercised, see New York Shipping Assn.—NYSA—ILA Man-Hour/Tonnage Method of Assessment, 16 F.M.C. 381 (1973), aff'd, New York Shipping Ass'n, Inc. v. Federal Maritime Commission, 495 F.2d 1215 (CA2), cert. denied, 419 U.S. 964, 95 S.Ct. 224, 42 L.Ed.2d 178 (1974), to issue conditional approval of filed agreements pending final decision as to their legality; and it is not clear why this mechanism is not amply responsive to the fears of undue delay or why its adequacy should now be debated since the parties could have, but did not, request early, conditional approval. The Court of Appeals did not deny that the Commission could permit implementation of filed agreements prior to a final decision, but it thought the mechanism only a partial alleviation of the problem since the parties still would face the "specter" of a later administrative invalidation of perhaps a crucial part of a collective-bargaining contract. But it is not immediately obvious why provisions of a collective-bargaining contract that appear obviously illegal to the Commission should be immediately implemented pending final decision. Furthermore, if a collective-bargaining contract having serious anticompetitive aspects is not subject to filing under § 15, as the Court of Appeals would have it, the parties would in any event face the uncertainty of possible invalidation and of treble damages after long and difficult litigation in an antitrust court. At least under § 15, it would be possible that an anticompetitive collective-bargaining contract that would not survive scrutiny under the antitrust laws could be approved by the Commission, if it served important regulatory goals, and hence would be insulated from antitrust attack. Indeed, a critical aspect of the regulatory plan devised by Congress is the requirement of administrative judgment with respect to all of the specified contracts required to be filed. It was therefore error for the Court of Appeals to hold that the legality of collective-bargaining contracts, challenged as anticompetitive and nonexempt, must be judicially determined under the antitrust laws without interposition of the administrative judgment and without regard for Shipping Act considerations.
III
20
The Court of Appeals also ruled that even absent a blanket exemption from § 15 for collective-bargaining agreements, the Commission should not have exercised § 15 jurisdiction in this case but should have exempted the nonmember participation agreement from filing. In doing so, the court appeared to disagree with the Commission's weighing of the impact on shipping interests of holding the agreement exempt against the impact on collective-bargaining interests of requiring filing and approval under § 15. Perhaps because under the Act this kind of comparison must be the business of the Commission if all collective agreements are not exempt, the Court of Appeals offered little to support this alternative judgment. It suggested that the Commission had failed to realize that the nonmember participation agreement in the last analysis was merely an effort to force the public ports into a multiemployer bargaining unit against their will, an issue clearly within the National Labo Relations Board's authority and one in which the Commission should not intermeddle. The argument is wide of the mark. The Commission has not challenged the power of the Board to determine bargaining units; neither the Commission nor the parties have authority to change a unit certified by the Board. Rather than relying on the Board to resolve any bargaining-unit problem, if there was one, PMA and the Union agreed to impose bargaining-unit terms on employers outside the unit.
21
Furthermore, the Court of Appeals recognized that the "Supreme Court has ruled against primary jurisdiction in the NLRB for anticompetitive agreements," 177 U.S.App.D.C., at 263, 543 F.2d, at 410, but went on to conclude that we had removed from all primary administrative cognizance the entire question of accommodating collective-bargaining considerations and the public interest in competition. We doubt that our opinions should be so broadly read. Congress has not authorized the NLRB to police, modify, or invalidate collective-bargaining contracts aimed at regulating competition or to insulate bargaining agreements from antitrust attack. But here, as we have said, Congress took the different course of committing to the Commission the initial task of approving or disapproving all agreements that control, regulate, prevent, or destroy competition. However much the courts might consider this to be a judicial function, particularly when it is necessary to accommodate the possibly conflicting policies of the labor and shipping laws, we have no warrant to ignore congressional preferences written into § 15 of the Shipping Act.
IV
22
Although the Court of Appeals did not otherwise challenge the content or application of the Commission's guidelines for resolving issues as to its jurisdiction over collective-bargaining agreements, the respondents urge that the Commission has misread the relevant cases. In particular, they fault the Commission's findings with respect to the competitive impact of the nonmember participation agreement and the failure to find that the terms under challenge constituted serious antitrust violations. These submissions are unsound. It is plain from our cases that an antitrust case need not be tried and a violation found before a determination can be made that a collective-bargaining agreement is not within the labor exemption, just as it is clear that denying the exemption does not mean that there is an antitrust violation.19 Insofar as the asserted exemption for collective-bargaining contracts is concerned, the Commission found all it needed to find to assume jurisdiction and proceed with the case under § 15 when it concluded that PMA and the Union had undertaken to impose employment terms and conditions on employers outside the bargaining unit. As we have previously observed:
23
"[T]here is nothing in the labor policy indicating that the union and the employers in one bargaining unit are free to bargain about the wages, hours and working conditions of other bargaining units or to attempt to settle these matters for the entire industry."
24
"[A] union forfeits its exemption from the antitrust laws when it is clearly shown that it has agreed with one set of employers to impose a certain wage scale on other bargaining units." United Mine Workers of America v. Pennington, 381 U.S., at 665-666, 85 S.Ct., at 1591.
25
Here, both the Commission and the Court of Appeals understood the nonmember participation agreement to req ire nonmembers to participate in all fringe-benefit plans agreed upon between the PMA and the Union, to observe PMA-determined labor policies in the event of a work stoppage, and to observe the same work rules with respect to the hiring-hall work force. The result, the Commission found, would be higher costs for nonmembers and the elimination of what the PMA considered to be "a competitive disadvantage" to its members.20 Accordingly, the Commission was warranted in finding that "the purpose of the supplemental agreement [was] . . . to place nonmembers on the same 'competitive' basis as members of the PMA." 18 F.M.C., at 201.
26
We are thus unpersuaded that the Commission did not make the requisite findings to sustain its view. Nor are we impressed with other arguments that in one guise or another are contentions that the Commission, for lack of ability and experience, should not purport to deal with any collective-bargaining agreement but should leave the entire matter of anticompetitive labor-management contracts to the courts and the antitrust laws. As we have said, Congress has made the Commission the arbiter of competition in the shipping industry; and if there are labor agreements so anticompetitive that they are vulnerable under the antitrust laws, it is difficult to explain why the Commission should not deal with them in the first instance and either approve or disapprove them under the standards specified in § 15.
27
In summary, we think the Commission was true to § 15 and that it has also demonstrated its sensitivity to the national labor policy by exempting from the filing requirements all collective-bargaining contracts that in its view would also be exempt from the antitrust laws. Because the Commission also has the power to approve filed agreements, even though anticompetitive, the Commission may also take into account any special needs of labor-management relationships in the shipping industry. We should add that since the Shipping Act contains its own standards for exempting and for approving and disapproving agreements between carriers, and because the ultimate issue in cases such as this is the accommodation of the Shipping Act and the labor laws, rather than the labor laws and the antitrust laws, it will not necessarily be a misapplication of the statutes if the exemption for collective-bargaining contracts from Shipping Act requirements is not always exactly congruent with the so-called labor exemption from the antitrust laws as understood by the courts.
28
The judgment of the Court of Appeals is reversed.
29
It is so ordered.
30
Mr. Justice BLACKMUN took no part in the consideration or decision of this case.
31
Mr. Justice POWELL, with whom Mr. Justice BRENNAN and Mr. Justice MARSHALL join, dissenting.
32
The Court today holds that collective-bargaining agreements in the maritime industry are subject to the filing and prior approval requirements of § 15 of the Shipping Act 1916 (Act), 46 U.S.C. § 814. Neither statutory language nor legislative history offers specific support for this result. For well over a half a century, the agency responsible for enforcing the Act did not consider § 15 previews of maritime labor contracts to be within its mission,1 even though collective bargaining is hardly a recent development in the major ports of the Nation.2 No intervening legislation explains the Court's willingness to recognize this belated assertion of jurisdiction.3
33
This decision would be debatable but unexceptional were it not for the presence of a competing statute. The task confronting the Court is one of reconciling the broad language of § 15 with the distinct policy of federal labor law embodied in the Labor Management Relations Act, 1947, 29 U.S.C. §§ 141 et seq. It seems to me that today's ruling undercuts federal labor policy, imposing undue burdens on collective bargaining, without advancing significantly any Shipping Act objective. I therefore dissent.
34
* The sweeping generality of § 15 arguably would enable the statute to be applied to almost any agreement involving a party subject to the Act. But this merely accents the importance of construing its general language in light of the Act's purposes and the policies of other pertinent statutes. Section 15 has not been interpreted as reaching all agreements related to maritim transportation. See FMC v. Seatrain Lines, Inc., 411 U.S. 726, 731-734, 93 S.Ct. 1773, 1777-1779, 36 L.Ed.2d 620 (1973). Although Volkswagenwerk v. FMC, 390 U.S. 261, 88 S.Ct. 929, 19 L.Ed.2d 1090 (1968), referred to today, ante, at 55-56, emphasized the breadth of the statutory language, the Court was careful to limit its holding to avoid any suggestion that collective-bargaining agreements must comply with the requirements of § 15.
35
In subjecting collective-bargaining agreements to prior clearance by the Commission under § 15, the Court goes well beyond the limits established in Volkswagenwerk. There, an earlier agreement between respondent Pacific Maritime Association (PMA) and respondent International Longshoremen's and Warehousemen's Union (Union) provided for the introduction of labor-saving devices and the elimination of certain work practices. The agreement required the creation of a "Mechanization and Modernization Fund" (Mech Fund) of $29 million to be used to mitigate the impact of technological unemployment upon employees. It reserved to the PMA alone the right to determine how to raise the fund from its members. The question before the Court was whether § 15 applied to a subsequent agreement among members of the PMA setting forth various formulas for collecting the Mech Fund. The Court held that the employers' "side agreement" would have a substantial impact on stevedoring and terminal charges, and required the prior approval of the Commission. Following the suggestion of the United States,4 the Court restricted its holding to the "side agreement," explicitly disclaiming any intention to reach the underlying collective-bargaining agreement.
36
"It is to be emphasized that the only agreement involved in this case is the one among members of the Association allocating the impact of the Mech Fund levy. We are not concerned here with the agreement creating the Association or with the collective bargaining agreement between the Association and the ILWU. No claim has been made in this case that either of those agreements was subject to the filing requirements of § 15. Those agreements, reflecting the national labor policy of free collective bargaining by representatives of the parties' own unfettered choice, fall in an area of concern to the National Labor Relations Board, and nothing we have said in this opinion is to be understood as questioning their continuing validity. But in negotiating with the ILWU, the Association insisted that its members were to have the exclusive right to determine how the Mech Fund was to be assessed, and a clause to that effect was included in the collective bargaining agreement. That assessment arrangement, affecting only relationships among Association members and their customers, is all that is before us in this case." 390 U.S., at 278 (emphasis supplied).
37
¢sThe italicized language makes clear that the Volkswagenwerk Court perceived a distinction, material to Commission authority under § 15, between a collective-bargaining agreement, and implementing agreements among carriers, stevedoring contractors, and marine terminal operators.
38
In this case, I would follow what seems to have been the lead of the Court in Volkswagenwerk. A proper accommodation of the conflicting signals of the Shipping Act and federal labor policy requires that bona fide collective-bargaining agreements, arrived through arm's-length negotiations,5 do not fall within § 15. As in other collective-bargaining contexts, labor and management in the maritime industry would be free to reach agreement without prior Government approval or control over the substantive terms of the bargain, while the agreement itself or its implementation would be subject to scrutiny under the antitrust laws and the specific prohibitions of §§ 166 and 177 of the Act.
II
39
The prospects for peaceful resolution of labor disputes in an industry marked by a history of industrial strife, see C. Larrowe, Shape Up and Hiring Hall 1-48, 83-138 (1955); Volkswagenwerk v. FMC, 390 U.S., at 296-299, 88 S.Ct., at 948-949 (Douglas, J., dissenting in part), are not enhanced by the Court's imposition of a system of administrative prior restraints. Collective bargaining works best when the parties are free to arrive at negotiated solutions to problems without first having to secure the approval of Government regulators. The legal consequences of a bargain may be assessed after the fact, but the parties should be free to negotiate an agreement within the framework of procedures prescribed by the National Labor Relations Board (Board). Often negotiations are conducted under substantial constraints of time, and agreement is reached at the eleventh hour. If there is no agreement by the expiration date of the previous contract, or if an accord may not be executed because of a requirement of prior governmental approval, labor's "no contract, no work" tradition suggests the likelihood of a disruptive work stoppage. Moreover, the bargaining process itself may suffer where the parties know that any agreement is simply a tentative accord, subject to pre-implementation review by an administrative agency. As the Board noted in New York Shipping Assn. v. FMC, 495 F.2d 1215 (CA ), cert. denied, 419 U.S. 964, 95 S.Ct. 224, 42 L.Ed.2d 178 (1974):
40
"It is extremely difficult for the parties to make a meaningful judgment as to the kind of bargain they are negotiating if one or more of the key provisions on which agreement turns is subject to invalidation by the Com mission. This kind of administrative supervision will impede the process of collective bargaining and could inhibit negotiators' attempts to arrive at novel solutions to troublesome labor problems. The superimposition of the approval of the FMC over [matters that are] crucial to the agreement is likely to disrupt the process of collective bargaining and deter the speedy resolution of industrial disputes in the maritime industry." Brief for National Labor Relations Board as Amicus Curiae in Nos. 73-1919 and 73-1991 (CA2), p. 14.
41
Section 15 jurisdiction also entails recognition of a revisory power in the Commission over the substantive terms of collective-bargaining agreements. The Commission is empowered, after notice and hearing, to "disapprove, cancel or modify any agreement" that it finds to be "unjustly discriminatory or unfair," detrimental to commerce, contrary to the public interest, or otherwise violative of the Act. If—as the Court holds—this power is applicable to collective-bargaining agreements, it would exceed even the broad remedial authority of the Board itself, which falls short of any substantial interference with the "freedom of contract" of the parties. In H. K. Porter Co. v. NLRB, 397 U.S. 99, 90 S.Ct. 821, 25 L.Ed.2d 146 (1970), the Court held that the Board could not order an employer to grant the union a contract checkoff clause as a remedy for an acknowledged violation of the statutory duty to bargain in good faith.
42
"It is implicit in the entire structure of the Act that the Board acts to oversee and referee the process of collective bargaining, leaving the results of the contest to the bargaining strengths of the parties. . . . The Board's remedial powers under § 10 of the Act are broad, but they are limited to carrying out the policies of the Act itself. One of these fundamental policies is freedom of contract. While the parties' freedom of contract is not absolute under the Act, allowing the Board to compel agreement when the parties themselves are unable to agree would violate the fundamental premise on which the Act is based—private bargaining under governmental supervision of the procedure alone, without any official compulsion over the actual terms of the contract." Id., at 107-108, 90 S.Ct., at 825.
43
The parties cannot agree to terms that violate the law, but the remedy that is generally applied is post-execution invalidation and assessment of damages, rather than "official compulsion over the actual terms of the contract."8 Hence, the Court's recognition of such a power reposing in the Commission is fundamentally at odds with national labor policy.
44
The Court insists that concern over "the possible impact of the Commission's decision on the collective-bargaining process [is] exaggerated and [does] not justify the major surgery performed on § 15 by the decision below." Ante, at 57. It is suggested that few labor agreements will have to be filed, because § 15 does not apply to contracts between a union and a single employer, and the Commission has foresworn jurisdiction over agreements falling within the uncertain contours of a "labor exemption" to be developed in the course of agency a judications. Ante., at 57-58.
45
It is by no means clear to me that the Court's optimism is justified. Labor unions and management groups, following the course of caution, are likely to respond to today's decision by filing all labor agreements with the Commission. Respondents can take little comfort in the assertion that "routine," Brief for Petitioners 28, or "ordinary collective-bargaining agreements" will not "be subject to the requirements of § 15," ante, at 57.9 Few agreements negotiated between a union and a multiemployer bargaining association for the purpose of governing working relations at a major port are likely to be so "routine" that the parties safely may assume that they enjoy an exemption from § 15. A degree of uncertainty and delay, then, would seem an inevitable byproduct of § 15 jurisdiction over maritime labor relations.
46
Similarly, the possibility that the Commission may find that a particular agreement qualifies for a "labor exemption" does not offer a realistic palliative for the probable impact of the Court's decision on free collective bargaining. The Court suggests that the Commission may apply its special understanding of the requirements of anticompetitive policy,10 but there is no well-developed corpus of maritime labor-antitrust decisions to guide the formulation of labor agreements in the industry. The Commission has identified four nonexclusive, nondeterminative criteria to inform its "labor exemption" rulings.11 The brief history of the Commission's entry into the maritime labor field, however, see n. 1, supra, offers little basis for hope that its assertion of § 15 jurisdiction will not impair the collective-bargaining process. In the final analysis, the substantial penalties provided by the Act12 for "guessing wrong" make it unlikely that the disruption and uncertainty inherent in this prior-restraint scheme will be allayed significantly by the rulings of a federal agency inexpert in labor and labor-antitrust matters.13
III
47
I cannot agree that either the statutory language or the legislative history14 of § 15 requires that it be made applicable to collective-bargaining agreements. Neither contains any reference to labor agreements. Although § 15 reaches a broad spectrum of arrangements, its terms apply only to agreements among "common carriers by water" or "other persons subject to this chapter."15 Unions are not persons subject to the Act. One would have thought that if Congress had wished to include collective-bargaining agreements within the scope of § 15, it would have done so specifically or, at least, it would have provided for jurisdiction over the indispensable party to such an agreement—the labor union.16
48
The terms of § 15 must be construed in light of the considerations that led to federal regulation of the maritime industry17 and encouraged Congress to empower the Commission to immunize restrictive agreements among shippers and others subject to the Act from all antitrust scrutiny.18 The Court's ruling abstracts this power of approval from the particular context that prompted Congress to accord certain agreements an immunity premised on Shipping Act policies which did not necessarily reflect antitrust principles.19 InVolkswagenwerk, the Court recognized § 15 jurisdiction over an agreement among members of respondent Association, to which a grant of immunity, after Commission study and approval, would have been understandable. That agreement presented only Shipping Act considerations. As the Government pointed out in that case, the assessment formula was "not a part of [the labor] contract, involve[d] no question of labor relations, and [was] not subject to the jurisdiction of the Labor Board." See n. 4, supra. I find it difficult to believe, however, that Congress in 1916 intended to empower the Commission to approve, and thereby immunize from the reach of the antitrust laws, the varied terms of collective-bargaining agreements.
49
The Commission in this case found that the agreement fell within the third category of § 15—which concerns agreements "controlling, regulating, preventing, or destroying competition." Pacific Maritime Assn.—Cooperative Working Arrangements, 18 F.M.C. 196 (1975). Undoubtedly, some maritime labor agreements will pose antitrust problems. But we must recognize, as we did in FMC v. Seatrain Lines, Inc., that a broad "reading of the Commission's jurisdiction would increase the number of cases subject to potential antitrust immunity," and "conflict with our frequently expressed view that exemptions from antitrust laws are strictly construed, see, e. g., United States v. McKesson & Robbins, Inc., 351 U.S. 305, 316, 76 S.Ct. 937, 100 L.Ed. 1209 (1956) . . . ." 411 U.S., at 733, and n. 8, 93 S.Ct., at 1778. Plenary review by the Commission of all maritime labor agreements that now will have to be filed in their entirety may be avoided only by retroactive, piecemeal grants of a "labor exemption."20 The better course would be to recognize that bona fide collective-bargaining agreements, as a class, do not come within § 15.
IV
50
An exemption from the filing and prior-clearance regime of § 15 would not shield collective-bargaining agreements from all scrutiny under the Shipping Act. It would remain open to the Commission to determine that a particular agreement was not the product of arm's-length negotiations, but rather was an effort to circumvent § 15 by clothing a restrictive arrangement otherwise subject to the filing requirement with the trappings of a labor accord. Moreover, even a bona fide collective-bargaining agreement, or at least action taken in its implementation, may be reviewed under §§ 16 and 17. Petitioners have not demonstrated that vindication of Shipping Act policies requires the application of § 15, in the first instance, to genuine collective-bargaining agreements. Indeed, the Commission's recognition of a "labor exemption" and its unreviewed assertion of power to accord "interim approval" to labor agreements, see n. 13, supra, suggest that the proposed remedy for an occasional evasion of the Shipping Act through the device of the collective-bargaining agreement may be likened to using "a sledge hammer to fix a watch." Volkswagenwerk v. FMC, 390 U.S., at 296, 88 S.Ct., at 948 (Douglas, J., dissenting in part).21
51
I respectfully dissent.
1
Section 15, as set forth in 46 U.S.C. § 814, provides as follows:
"Every common carrier by water, or other person subject to this chapter, shall file immediately with the Commission a true copy, or, if oral, a true and complete memorandum, of every agreement with another such carrier or other person subject to this chapter, or modification or cancellation thereof, to which it may be a party or conform in whole or in part, fixing or regulating transportation rates or fares; giving or receiving special rates, accommodations, or other special privileges or advantages; controlling, regulating, preventing, or destroying com-
petition; pooling or apportioning earnings, losses, or traffic; allotting ports or restricting or otherwise regulating the number and character of sailings between ports; limiting or regulating in any way the volume or character of freight or passenger traffic to be carried; or in any manner providing for an exclusive, preferential, or cooperative working arrangement. The term 'agreement' in this section includes understandings, conferences, and other arrangements.
"The Commission shall by order, after notice and hearing, disapprove, cancel or modify any agreement, or any modification or cancellation thereof, whether or not previously approved by it, that it finds to be unjustly discriminatory or unfair as between carriers, shippers, exporters, importers, or ports, or between exporters from the United States and their foreign competitors, or to operate to the detriment of the commerce of the United States, or to be contrary to the public interest, or to be in violation of this chapter, and shall approve all other agreements, modifications, or cancellations. No such agreement shall be approved, nor shall continued approval be permitted for any agreement (1) between carriers not members of the same conference or conferences of carriers serving different trades that would otherwise be naturally competitive, unless in the case of agreements between carriers, each carrier, or in the case of agreement between conferences, each conference, retains the right of independent action, or (2) in respect to any conference agreement, which fails to provide reasonable and equal terms and conditions for admission and readmission to conference membership of other qualified carriers in the trade, or fails to provide that any member may withdraw from membership upon reasonable notice without penalty for such withdrawal.
"The Commission shall disapprove any such agreement, after notice and hearing, on a finding of inadequate policing of the obligations under it, or of failure or refusal to adopt and maintain reasonable procedures for promptly and fairly hearing and considering shippers' requests and complaints.
"Any agreement and any modification or cancellation of any agreement not approved, or disapproved, by the Commission shall be unlawful, and agreements, modifications, and cancellations shall be lawful only when and as long as approved by the Commission; before approval or after disapproval it shall be unlawf l to carry out in whole or in part, directly
or indirectly, any such agreement, modification, or cancellation; except that tariff rates, fares, and charges, and classifications, rules, and regulations explanatory thereof (including changes in special rates and charges covered by section 813a of this title which do not involve a change in the spread between such rates and charges and the rates and charges applicable to noncontract shippers) agreed upon by approved conferences, and changes and amendments thereto, if otherwise in accordance with law, shall be permitted to take effect without prior approval upon compliance with the publication and filing requirements of section 817(b) of this title and with the provisions of any regulations the Commission may adopt.
"Every agreement, modification, or cancellation lawful under this section, or permitted under section 813a of this title, shall be excepted from the provisions of sections 1 to 11 and 15 of Title 15, and amendments and Acts supplementary thereto.
"Whoever violates any provision of this section or of section 813a of this title shall be liable to a penalty of not more than $1,000 for each day such violation continues, to be recovered by the United States in a civil action. Provided, however, That the penalty provisions of this section shall not apply to leases, licenses, assignments, or other agreements of similar character for the use of terminal property or facilities which were entered into before the date of enactment of this Act, and, if continued in effect beyond said date, submitted to the Federal Maritime Commission for approval prior to or within ninety days after the enactment of this Act, unless such leases, licenses, assignments, or other agreements for the use of terminal facilities are disapproved, modified, or canceled by the Commission and are continued in operation without regard to the Commission's action thereon. The Commission shall promptly approve, disapprove, cancel, or modify each such agreement in accordance with the provisions of this section."
2
Section 1 of the Act, as set forth in 46 U.S.C. § 801, defines the term "other person subject to this chapter" as "any person not included in the term 'common carrier by water,' carrying on the business of forwarding or furnishing wharfage, dock, warehouse, or other terminal facilities in connection with a common carrier by water."
3
There are exceptions to this rule, see n. 1, supra, not relevant to this case.
4
PMA's membership includes steamship lines, steamship agents, stevedoring companies, and marine terminal companies operating at Pacific coast ports of the United States.
5
The complaining public ports were Anacortes, Bellingham, Everett, Grays Harbor, Olympia, Port Angeles, Portland, and Tacoma. The Port of Seattle subsequently intervened on their side.
6
Section 16, 39 Stat. 734, as amended, 46 U.S.C. § 815, forbids discriminatory or preferential rates or other acts; and § 17, 39 Stat. 734, as amended, 46 U.S.C. § 816, empowers the Commission to prescribe reasonable nondiscriminatory rates.
7
For present purposes, the term "fringe benefits" refers to bargained-for plans for vacation pay, pay guarantees, pensions, welfare, and holidays.
8
The Union favors the centralized, rotational hiring system, because such a system equalizes job opportunities by insuring that available work is spread among the registered work force. Employers, however, prefer to use steady gangs, believing that system to be more efficient since new workers are not constantly having to be familiarized with the employer's operations.
9
Since 1935, PMA employers have been required to hire exclusively from hiring halls jointly financed by PMA and the Union. This hiring-hall system was created in an effort to reconcile the fluctuating demand for labor in the Pacific coast longshore industry with the need for stable employment. Union members register for jobs at the halls and from there are dispatched to work assignments. Despite the rotational hiring method used within the industry, registered Union workers receive a single paycheck from PMA. This requires PMA to maintain a central payroll and recordkeeping system for these longshoremen.
10
The ports paid a participation fee for this privilege. In PMA's view, allowing nonmembers to participate in the fringe-benefit plans was a great benefit to the nonmembers, for it permitted them to participate in programs funded for thousands of employees, rather than having to establish their own plans for very few employees. On the other hand, PMA thought that having nonmembers participate in some, but not necessarily all, of the benefit plans created additional administrative burdens for it.
11
When contract negotiations began in late 1970, the Union proposed that the contract provide that PMA would accept all fringe-benefit contributions from any employer, whether or not a PMA member. In response PMA proposed that all nonmember participation under the collective-bargaining agreement be eliminated except as applied to those employers who were not permitted by law to become members of PMA.
12
To support this description, the Court of Appeals quoted the following paragraphs from a revision of the Supplemental Memorandum of
Understanding, to be mentioned in the text, which the Commission found was substantially the same as the Supplemental Memorandum of Understanding, 177 U.S.App.D.C., at 250-251, nn. 6-9, 543 F.2d, at 397-398, nn. 6-9:
"6. 7. The nonmember participant shall participate in the ILWU-PMA Pension Plan, the ILWU-PMA Welfare Plan, the PMA Vacation Plans (longshoremen and clerks, and walking bosses/foremen) and the ILWU-PMA Guarantee Plans (longshoremen and clerks/ and walking bosses/foremen) in accordance with the terms applicable to such participation. Such nonmember shall make payments into these Plans at the same rates and at the same times as members of PMA are to make the respective payments, attached are statements of terms and conditions currently in effect with respect to such participation. Non-member Participants shall be subject to the same audits as members of PMA."
"7. 9. Each nonmember participant shall pay to the PMA an amount equal to the dues and assessments on the same basis that a PMA member would pay. Payments shall be made at the same time the member would pay."
"8. 5. A nonmember participant may obtain and employ a man in the joint work force on a steady basis in the same way a member may do so. When such participant employs a man to work on a steady basis, it shall notify PMA immediately. On request from PMA, each such participant shall furnish to PMA a list of men it is using on a steady basis. Steady men shall participate in the Pay Guarantee Plan in accordance with the rules that are adopted by PMA and ILWU."
"9. 3. A nonmember participant will share in the use of the joint work force upon the same terms as apply to members of PMA. For example
"a) the nonmember participant shall obtain men on the same basis as a PMA member from the dispatch hall operated by ILWU and PMA through the allocation system operated by PMA,
"b) if a work stoppage by ILWU shuts off the dispatch of men from the dispatch hall to PMA members, nonmember participants shall not obtain men from the dispatch hall,
"c) if during a work stoppage by ILWU, PMA and ILWU agree on limited dispatch of men from the dispatch hall for PMA members, such limited dispatch shall be available to nonmember participants.
"The essence of b) and c) of this section is the acceptance by nonmem-
ber participants of the principle that a work stoppage by ILWU against PMA members is a work stoppage against nonmember participants."
The Court of Appeals went on to point out:
"The Revised Agreement also required uniform terms regarding selection of men in the joint work force, continuance of obligation to pay PMA assessments, and use of uniform payment and record forms." Id., at 251 n. 9, 543 F.2d, at 398 n. 9.
13
The Commission noted that the complaint before it alleged, not that PMA or the Union had refused to bargain, but rather that they had entered into an agreement in violation of the shipping and antitrust laws. The Commission concluded that the NLRB would be without available procedure to investigate the legality of the nonmember participation agreement.
The suggestion that it defer the matter to the courts was also deemed unmeritorious, since the Commission had already intervened in a counterpart antitrust case brought by the ports and had requested a stay of those proceedings, which had been granted pending the Commission's resolution of the Shipping Act questions.
14
The Commission's view is that, although the Union is neither a carrier nor "other person," the agreement nevertheless constitutes an agreement among the contracting carriers—in this case as to how the public ports were to be dealt with—and is therefore a § 15 contract insofar as the identity of the parties is concerned. The Court of Appeals for the Second Circuit agrees with the Commission. New York Shipping Assn. v. FMC, 495 F.2d 1215, 1220-1221, cert. denied, 419 U.S. 964, 95 S.Ct. 224, 42 L.Ed.2d 178 (1974). Nor did the Court of Appeals in this case disagree; it simply noted the approach of the Commission and suggested that this Court might have approved it in Volkswagenwerk Aktiengesellschaft v. FMC, 390 U.S. 261, 88 S.Ct. 929, 19 L.Ed.2d 1090 (1968). 177 U.S.App.D.C., at 261 n. 31, 543 F.2d, at 408 n. 31.
15
The Commission said, 16 F.M.C., at 12-13:
"Hence, from these cases have evolved the various criteria for determining the labor exemption from the antitrust laws and which we herewith adopt for purposes of assisting us in determining the labor exemption from the shipping laws with this caveat. These criteria are by no means meant to be exclusive nor are they determinative in each and every case. Just as in the accommodation of the labor laws and the antitrust laws the courts have resolved each case on an ad hoc basis, so too will we. Each of the following criteria deserves consideration, but it is obvious that each element is not in and of itself controlling. They are rather guidelines or ' ules of thumb' for each factual situation. These criteria are as follows:
"1. The collective bargaining which gives rise to the activity in question must be in good faith. Other expressions used to characterize this element are 'arms-length' or 'eyeball to eyeball.'
"2. The matter is a mandatory subject of bargaining, e. g. wages, hours or working conditions. The matter must be a proper subject of union concern, i. e., it is intimately related or primarily and commonly associated with a bona fide labor purpose.
"3. The result of the collective bargaining does not impose terms on entities outside of the collective bargaining group.
"4. The union is not acting at the behest of or in combination with nonlabor groups, i. e., there is no conspiracy with management.
"In the final analysis, the nature of the activity must be scrutinized to determine whether it is the type of activity which attempts to affect competition under the antitrust laws or the Shipping Act. The impact upon business which this activity has must then be examined to determine the extent of its possible effect upon competition, and whether any such effect is a direct and probable result of the activity or only remote. Ultimately, the relief requested or the sanction imposed by law must then be weighed against its effect upon the collective bargaining agreement. In balancing the equities, the above criteria will no doubt be of value. We cannot, however, subscribe to the view that collective bargaining agreements be granted a blanket labor exemption from the Shipping Act."
16
The Commission concluded that the agreement in question did not affect "outsiders" because there was no express agreement among the PMA members to pass on all or a portion of the assessments to the carriers and shippers served by the terminal operators. Volkswagenwerk Aktiengesellschaft v. Marine Terminals Corp., 9 F.M.C. 77, 82-83 (1965).
17
Section 35, as set forth in 46 U.S.C. § 833a, provides:
"The Federal Maritime Commissi n, upon application or on its own motion, may by order or rule exempt for the future any class of agreements between persons subject to this chapter or any specified activity of such persons from any requirement of this chapter, or Intercoastal Shipping Act, 1933, where it finds that such exemption will not substantially impair effective regulation by the Federal Maritime Commission, be unjustly discriminatory, or be detrimental to commerce.
"The Commission may attach conditions to any such exemptions and may, by order, revoke any such exemption.
"No order or rule of exemption or revocation of exemption shall be issued unless opportunity for hearing has been afforded interested persons."
18
See, n. 15, supra.
19
In Connell Construction Co. v. Plumbers & Steamfitters Local Union No. 100, 421 U.S. 616, 95 S.Ct. 1830, 44 L.Ed.2d 418 (1975), for example, the Court, after concluding that the agreement in question was not entitled to the nonstatutory labor exemption from the antitrust laws, remanded for consideration whether the agreement violated the Sherman Act. See also, Local 189, Amalgamated Meat Cutters v. Jewel Tea Co., 381 U.S. 676, 688-689, 85 S.Ct. 1596, 1601-1602, 14 L.Ed.2d 640 (1965) (opinion of White, J.).
20
The PMA thought that the nonmembers enjoyed an advantage in that they were able to "pick and choose fringe benefits on a piecemeal basis . . . [and could] get favored treatment in regard to the utilization of the workforce, the employment of steady men, the privilege of working when members [could not], and [that the nonmembers] even [went] so far as to take advantage of that latter situation and handle cargo which would otherwise be handled by members during strike or stoppage periods." App. 102.
1
Prior to 1968, th Federal Maritime Commission (Commission) and its predecessors resisted the idea that § 15 reached agreements affecting employer-employee relationships. Three years after this Court's ruling in Volkswagenwerk v. FMC, 390 U.S. 261, 88 S.Ct. 929, 19 L.Ed.2d 1090 (1968), however, the Commission held that § 15 applied to work-gang allocation and employee-recall provisions developed among members of a multiemployer association. The recall provision had been embodied in a collective-bargaining agreement. United Stevedoring Corp. v. Boston Shipping Assn., 15 F.M.C. 33 (1971). On appeal, the United States, as statutory respondent, incorporating the positions of the Department of Labor and the National Labor Relations Board, objected to the Commission's decision. The opposition of the United States prompted the Commission to move for a remand for further consideration. The Court of Appeals granted the motion, expressing "astonishment" at the Commission's failure to recognize the difference "between attaching a separate, Section 15, agreement, in which the union had little interest, to a collective bargaining agreement, and making a multi-employer agreement with a union, eyeball to eyeball, but which, by the very fact that it is multi-employer, has some effect on employer competition." Boston Shipping Assn. v. United States, 8 SRR 20,828, 20,830 (CA1 1972). On remand, the Commission found that both provisions were entitled to a "labor exemption" derived, by analogy, from this Court's labor-antitrust decisions. United Stevedoring Corp. v. Boston Shipping Assn., 16 F.M.C. 7, 14-15 (1972).
Aside from the present controversy, the Commission's only other foray into the labor arena involved an assessment formula for funding a fringe-benefit program that was incorporated in a collective-bargaining agreement. New York Shipping Assn.—NYSA—ILA Man-Hour/Tonnage Method of Assessment, 16 F.M.C. 381 (1973). On appeal, the United States supported the Commission, while the Department of Labor and the National Labor Relations Board urged reversal. The Court of Appeals upheld the decision. New York Shipping Assn. v. FMC, 495 F.2d 1215 (CA2), cert. denied, 419 U.S. 964, 95 S.Ct. 224, 42 L.Ed.2d 178 (1974).
2
New York longshoremen were sufficiently organized by 1874 to conduct a five-week strike for higher wages. By 1914, New York locals formed the International Longshoremen's Association (ILA) and, by 1916, the union secured a portwide agreement. On the west coast, District Council 38 of the ILA, in 1915, entered into an agreement providing for wage increases with all employers in the Puget Sound-British Columbia area. C. Larrowe, Shape-Up and Hiring Hall 7-9, 87-89 (1955).
3
The Court notes that the Shipping Act, including § 15, was extensively revised in 1961, Pub.L. 87-346, 75 Stat. 763, see ante, at 54, but offers no evidence that this re-examination of "the entire gamut of antitrust problems in the ocean freight industry," H.R.Rep. No. 1419, 87th Cong., 2d Sess., 2 (1962), touched upon the possibility of § 15's application to collective-bargaining agreements.
4
"For purposes of deciding this case, we may assume that agreements which relate solely to collective bargaining or labor relations are excepted from the scope of Section 15 of the Shipping Act. Cf. Kennedy v. Long Island R. Co., 211 F.Supp. 478 (S.D.N.Y.), affirmed, 319 F.2d 366 (CA2), certiorari denied, 375 U.S. 830, 84 S.Ct. 75, 11 L.Ed.2d 61. The basic agreement to provide a mechanization fund in a certain amount for the benefit of the longshoremen would appear to be of this character. And after the Association agreed to create the fund it had an ancillary obligation to collect it somehow. But at issue here is only the side agreement among the Association's members prescribing a special assessment on the cargo handled by them. Such an agreement among employers apportioning the cost of the labor contract is not a part of that contract, involves no question of labor relations, and is not subject to the jurisdiction of the Labor Board." Brief for United States in Volkswagenwerk v. FMC, O.T.1967, No. 69, pp. 31-32 (emphasis supplied); see Memorandum for United States in Volkswagenwerk, pp. 7-8.
5
Petitioners do not challenge the bona fides of the agreement in question. Indeed, they concede that the Union has a legitimate interest in the integrity and work opportunities of the registered work force and in the fringe benefits covered by the agreement. Reply Brief for Petitioners 6.
6
Section 16 of the Act, as set forth in 46 U.S.C. § 815, provides in relevant part:
"It shall be unlawful for any common carrier by water, or other person subject to this chapter, either alone or in conjunction with any other person, directly or indirectly—
"First. To make or give any undue or unreasonable preference or advantage to any particular person, locality, or description of traffic in any respect whatsoever, or to subject any particular person, locality, or description of traffic to any undue or unreasonable prejudice or disadvantage in any respect whatsoever . . . ."
See n. 16, infra.
7
Section 17 of the Act, as set forth in 46 U.S.C. § 816, provides in relevant part:
"Every such carrier and every other person subject to this chapter shall establish, observe, and enforce just and reasonable regulations and practices relating to or connected with the receiving, handling, storing, or delivering of property. Whenever the Commission finds that any such regulation or practice is unjust or unreasonable it may determine, prescribe, and order enforced a just and reasonable regulation or practice."
This provision may not reach the collective-bargaining agreement, but it would appear to be applicable to the implementation of the agreement by persons subject to the Act.
8
For example, although § 8(e) of the National Labor Relations Act, 29 U.S.C. § 158(e) (1970 ed., Supp. V), prohibits entering into a "hot cargo" agreement, there is no requirement that the parties submit a proposed agreement to the Board for prior clearance. The Board's remedial authority is limited to the obtaining of a preliminary injunction under § 10(l ), 29 U.S.C. § 160(l ), and the ultimate issuance of a cease-and-desist order, requiring enforcement by a court of appeals.
9
The Court's discussion on this point is somewhat unclear. The argument appears to be, as observed in the text, that "ordinary collective-bargaining agreements" would not "be subject to the requirements of § 15," ante, at 57, apparently because their conformity with antitrust and Shipping Act policies may be presumed. If the Court is simply saying, however, that such agreements are likely to be "routinely approved even if filed," ibid., this is no answer to respondents' contention that compliance with § 15 prevents the prompt implementation of compromise agreements worked out in eleventh-hour bargaining sessions that often is necessary to the preservation of labor peace.
10
"We should add that since the Shipping Act contains its own standards for exempting and for approving and disapproving agreements between carriers, and because the ultimate issue in cases such as this is the accommodation of the Shipping Act and the labor laws, rather than the labor laws and the antitrust laws, it will not necessarily be a misapplication of the statutes if the exemption for collective-bargaining contracts from Shipping Act requirements is not always exactly congruent with the so-called labor exemption from the antitrust laws as understood by the courts." Ante, at 63.
11
"These criteria are by no means meant to be exclusive nor are they determinative in each and every case. Just as in the accommodation of the labor laws and the antitrust laws the courts have resolved each case on an ad hoc basis, so too will we. Each of the following criteria deserves consideration, but it is obvious that each element is not in and of itself controlling. They are rather guidelines or 'rules of thumb' for each factual situation." United Stevedoring Corp. v. Boston Shipping Assn., 16 F.M.C., at 12.
Although the Commission has promised to undertake a rulemaking proceeding to promulgate more precise standards for its "labor exemption," id., at 15, no regulations have been forthcoming.
12
Noncompliance with § 15 exposes the offending party to a civil penalty of not more than $1,000 for each day of violation. If the agreement, or its implementation, is ultimately held to violate § 16 as well, the party also may be guilty of a misdemeanor punishable by a fine of not more than $5,000 for each offense.
13
The power of the Commission to grant temporary approvals under § 15, e. g., New York Shipping Assn. v. FMC, 495 F.2d, at 1218, has not been passed on by a federal court, see Marine Cooks & Stewards v. FMC, No. 75-2013 (CADC Feb. 4, 1977) (dismissing appeal). In any event, this dispensation is a matter of administrative grace. The problems of uncertainty and delays are not likely to disappear because there is a chance that the Commission may be persuaded to issue a temporary approval. And, as the Court of Appeals recognized, even if such a power and its frequent exercise are assumed, interim approval "does not remove the possibility of later unilateral modification by the Commission . . . ." 177 U.S.App.D.C. 248, 260, 543 F.2d 395, 407 (1976).
14
Petitioners concede that "[t]he legislative history of the Shipping Act is unilluminating concerning Congress' specific intent where a labor union is a signatory to an agreement otherwise subject to the Act . . . ." Brief for Petitioners 24 n. 25.
Legislative developments after the passage of the Shipping Act highlight the improbability of § 15 jurisdiction over labor agreements. In 1938, Congress created a Maritime Labor Board (MLB) for the purpose of encouraging collective bargaining and assisting in the peaceful settlement of disputes through mediation. A provision of the 1938 measure, § 1005, 52 Stat. 967, required every maritime employer to file with the MLB a copy of every contract with any group of its employees covering wages, hours, and working conditions. A 1941 House Committee Report on a bill providing for a two-year extension of the 1938 machinery noted:
"This is the only Government agency with which copies of all labor agreements are required to be filed and these have been studied by the Board with a view to promoting stable labor relations in the maritime industry.
"One of the most unique provisions . . . requires the filing with the Board of all maritime labor agreements. The 4,303 collective agreements filed with the Maritime Labor Board represent the most complete file of collective agreements in the maritime industry, as employers are not required to file agreements, covering their maritime employees, with any other Federal agency." H.R.Rep. No. 354, 77th Cong., 1st Sess., 5 (1941) (emphasis supplied).
The MLB ultimately was discontinued.
15
The term "other person subject to this chapter" "means any person not included in the term "common carrier by water," carrying on the business or forwarding or furnishing wharfage, dock, warehouse, or other terminal facilities in connection with a common carrier by water." 46 U.S.C. § 801.
16
By contrast, § 16 bars certain discriminatory acts engaged in by "any common carrier by water, or other person subject to this chapter, either alone or in conjunction with any other person . . . ." The t rm "person" "includes corporations, partnerships, and associations, existing under or authorized by the laws of the United States, or any State, Territory, District or possession thereof, or of any foreign country." 46 U.S.C. § 801.
17
The guiding force in the development of the Shipping Act was the House Committee that issued the "Alexander Report." House Committee on Merchant Marine and Fisheries, Report on Steamship Agreements and Affiliations, H.R.Doc.No.805, 63d Cong., 2d Sess. (1914). See Federal Maritime Board v. Isbrandtsen Co., 356 U.S. 481, 490, 78 S.Ct. 851, 857, 2 L.Ed.2d 926 (1958). The Alexander Committee principally addressed the methods for control of competition employed by steamship lines and water carriers that had cartelized much of the industry. Alexander Report 409-412, 415, 421-422. To ensure Government surveillance of these practices, the Committee recommended that all carriers engaged in the foreign and domestic trade of the United States file with the Government all agreements entered into with any other carrier, shipper, railroad, or other transportation agencies. Id., at 419-420, 422-423.
18
Concluding that outright prohibition of steamship agreements and conference arrangements would result only in rate wars and anticompetitive mergers, the Alexander Committee "chose to permit continuation of the conference system, but to curb its abuses by requiring government approval of conference agreements." FMC v. Seatrain Lines, Inc., 411 U.S. 726, 738, 93 S.Ct. 1773, 1781, 36 L.Ed.2d 620 (1973).
19
At least until 1961, it was an open question whether the Commission could take antitrust policies into account when ruling on proposed agreements. Id., at 739, 93 S.Ct., at 1782. Apparently, the approval of an agreement, premised on a consideration of Shipping Act policies alone, was sufficient to confer an immunity from the antitrust laws.
20
The Commission's assertion of power to accord a "labor exemption" after filing to particular collective-bargaining agreements, or portions thereof, does not fit neatly within the authorization of § 35 of the Act, 46 U.S.C. § 833a. That provision contemplates action "for the future," after opportunity for a hearing, exempting "any class of agreements between persons subject to this chapter or any specified activity of such persons . . . ."
21
Because of my conclusion that § 15, properly read, does not apply to bona fide collective-bargaining agreements, I do not reach the question of whether the Commission interpreted correctly United Mine Workers v. Pennington, 381 U.S. 657, 85 S.Ct. 1585, 14 L.Ed.2d 626 (1965), to deny a "labor exemption" from the Shipping Act to the agreement in question.
| 67
|
435 U.S. 151
98 S.Ct. 988
55 L.Ed.2d 179
Dixy Lee RAY, Governor of Washington, et al., Appellants,v.ATLANTIC RICHFIELD COMPANY and Seatrain Lines, I corporated.
No. 76-930.
Argued Oct. 31, 1977.
Decided March 6, 1978.
Syllabus
Appellees challenge the constitutionality of the Washington Tanker Law, which regulates the design, size, and movement of oil tankers in Puget Sound, both enrolled (those engaged in domestic or coastwise trade) and registered (those engaged in foreign trade). Three operative provisions are involved: (1) a requirement (§ 88.16.180) that both enrolled and registered oil tankers of at least 50,000 deadweight tons (DWT) carry a Washington-licensed pilot while navigating the Sound; (2) a requirement (§ 88.16.190(2)) that enrolled and registered oil tankers of from 40,000 to 125,000 DWT satisfy certain design or safety standards, or else use tug escorts while operating in the Sound; and (3) a ban on the operation in the Sound of any tanker exceeding 125,000 DWT (§ 88.16.190(1)). A three-judge District Court adjudged the statute void in its entirety, upholding appellees' contentions that all the Tanker Law's operative provisions were pre-empted by federal law particularly the Ports and Waterways Safety Act of 1972 (PWSA), which is designed to insure vessel safety and the protection of navigable waters and adjacent shore areas from tanker oil spillage. Title I of the PWSA empowers the Secretary of Transportation to establish, operate, and require compliance with "vessel traffic services and systems" for ports subject to congested traffic and to control vessel traffic in especially hazardous areas by, among other things, establishing vessel size limitations. Pursuant to this Title, the Secretary, through his delegate, has promulgated the Puget Sound Vessel Traffic System, which contains general and communication rules, vessel movement reporting requirements, a traffic separation scheme, special ship movement rules applying to Rosario Strait (where under a local Coast Guard rule the passage of more than one 70,000 DWT vessel—in bad weather, 40,000 DWT—in either direction at a given time is prohibited), and other requirements. A State, though permitted to impose higher equipment or safety standards, may do so "for structures only." Title II, whose goals are to provide vessel safety and protect the marine environment, provides that the Secretary shall issue such rules and regulations as may be necessary with respect to the design, construction, and operation of oil tankers; provides for inspection of vessels for compliance with the Secretary's safety and environmental regulations; and prohibits the carrying of specified cargoes absent issuance of a certificate of inspection evidencing compliance with the regulations. Title 46 U.S.C. § 364 provides that every coastwise seagoing steam vessel subject to federal navigation laws not sailing under register shall, when under way, be under the control and direction of pilots licensed by the Coast Guard. Title 46 U.S.C. § 215 adds that no state government shall impose upon steam vessel pilots any obligation to procure a state license in addition to the federal license, though it is specified that the provision does not affect state requirements for carrying pilots on other than coastwise vessels. Held :
1. To the extent that § 88.16.180 requires enrolled tankers to carry state-licensed pilots, the State is precluded by 46 U.S.C. §§ 215, 364 from imposing its own pilotage requirements and to that extent the state law is invalid. The District Court's judgment was overly broad, however, in invalidating the pilot provision in its entirety, since under both 46 U.S.C. § 215 and the PWSA States are free to impose pilotage requirements on registered vessels entering and leaving their ports. Pp. 158-160.
2. Congress in Title II intended uniform national standards for design and construction of tankers that would foreclose the imposition of different or more stringent state requirements, and since the federal scheme aims at precisely the same ends as § 88.16.190(2) of the Tanker Law, the different and higher design requirements of that provision, standing alone, are invalid under the Supremacy Clause. Huron Portland Cement Co. v. Detroit, 362 U.S. 440, 80 S.Ct. 813, 4 L.Ed.2d 852; Kelly v. Washington, 302 U.S. 1, 58 S.Ct. 87, 82 L.Ed. 3, distinguished. Pp. 160-168.
3. The District Court erred in holding that the alternative tug requirement of § 88.16.190(2) was invalid as conflicting with the PWSA, for the Secretary has not as yet promulgated his own tug requirement for Puget Sound tanker navigation or decided that there should be no such requirement. Unless and until he issues such rules, the State's tug-escort requirement is not pre-empted by the federal scheme. Pp. 168-173.
4. The exclusion from Puget Sound of any tanker exceeding 125,000 DWT pursuant to § 88.16.190(1) is invalid under the Supremacy Clause in light of Title I and the Secretary's actions thereunder, a conclusion confirmed by the legislative history of Title I which shows that Congress intended that there be a single federal decisionmaker to promulgate limitations on tanker size. Pp. 173-178.
5. The tug-escort requirement does not violate the Commerce Clause. This requirement, like a local pilotage requirement, is not the type of regulation demanding a uniform national rule, see Cooley v. Board of Wardens, 12 How. 299, 13 L.Ed. 996, nor does it impede the free flow of interstate and foreign commerce, the tug-escort charges not being large enough to interfere with the production of oil. Pp. 179-180.
6. Nor does the tug-escort provision, which does not interfere with the Government's attempt to achieve international agreement on the regulation of tanker design, interfere with the Government's authority to conduct foreign affairs. P. 180.
Slade Gorton, Atty. Gen., Olympia, Wash., for appellants.
Richard E. Sherwood, Los Angeles, Cal., for appellees.
[Amicus Curiae Information from pages 153-154 intentionally omitted]
Mr. Justice WHITE delivered the opinion of the Court.
1
Pursuant to the Ports and Waterways Safety Act of 1972 (PWSA), 86 Stat. 424, 33 U.S.C. § 1221 et seq. (1970 ed., Supp. V), and 46 U.S.C. § 391a (1970 ed., Supp. V), navigation in Puget Sound, a body of inland water lying along the northwest coast of the State of Washington,1 is controlled in major respects by federal law. The PWSA also subjects to federal rule the design and operating characteristics of oil tankers.
2
This case arose when ch. 125, 1975 Wash.Laws, 1st Extr. Sess., Wash.Rev.Code § 88.16.170 et seq. (Supp.1975) (Tanker Law), was adopted with the aim of regulating in particular respects the design, size, and movement of oil tankers in Puget Sound. In response to the constitutional challenge to the law brought by the appellees herein, the District Court held that under the Supremacy Clause, Art. VI, cl. 2, of the Constitution, which declares that the federal law "shall be the supreme Law of the Land," the Tanker Law could not coexist with the PWSA and was totally invalid. Atlantic Richfield Co. v. Evans, No. C-75-648-M (WD Wash. Sept. 24, 1976).
A. I
3
Located adjacent to Puget Sound are six oil refineries having a total combined processing capacity of 359,500 barrels of oil per day. In 1971, appellee Atlantic Richfield Co. (ARCO) began operating an oil refinery at Cherry Point, situated in the northern part of the Sound. Since then, the crude oil processed at that refinery has been delivered principally by pipeline from Canada2 and by tankers from the Persian Gulf; tankers will also be used to transport oil there from the terminus of the Trans-Alaska Pipeline at Valdez, Alaska. Of the 105 tanker deliveries of crude oil to the Cherry Point refinery from 1972 through 1975, 95 were by means of tankers in excess of 40,000 deadweight tons (DWT),3 and, prior to the effective date of the Tanker Law, 15 of them were by means of tankers in excess of 125,000 DWT.
4
Appellee Seatrain Lines, Inc. (Seatrain), owns or charters 12 tanker vessels in domestic and foreign commerce, of which four exceed 125,000 DWT. Seatrain also operates through a wholly owned subsidiary corporation a shipbuilding facility in New York City, where it has recently constructed or is constructing four tankers, each with a 225,000 DWT capacity.
5
On the day the Tanker Law became effective, ARCO brought suit in the United States District Court for the Western District of Washington, seeking a judgment declaring the statute unconstitutional and enjoining its enforcement. Seatrain was later permitted to intervene as a plaintiff. Named as defendants were the state and local officials responsible for the enforcement of the Tanker Law.4 The complaint alleged that the statute was pre-empted by federal law, in particular the PWSA, and that it was thus invalid under the Supremacy Clause. It was also alleged that the law imposed an undue burden on interstate commerce in violation of the Commerce Clause, Art. I, § 8, cl. 3, and that it interfered with the federal regulation of foreign affairs. Pursuant to 28 U.S.C. §§ 2281, 2284, a three-judge court was convened to determine the case.
6
The case was briefed and argued before the District Court on the basis of a detailed stipulation of facts. Also before the court was the brief of the United States as amicus curiae, which contended that the Tanker Law was pre-empted in its entirety by the PWSA and other federal legislation.5 The three-judge court agreed with the plaintiffs and the United States, ruling that all of the operative provisions of the Tanker Law were pre-empted, and enjoining appellants and their successors from enforcing the chapter.6 We noted probable jurisdiction of the State's appeal, 430 U.S. 905, 97 S.Ct. 1172, 51 L.Ed.2d 580 (1977), meanwhile having stayed the injunction. 429 U.S. 1035, 97 S.Ct. 729, 50 L.Ed.2d 747 (1977).
II
7
The Court's prior cases indicate that when a State's exercise of its police power is challenged under the Supremacy Clause, "we start with the assumption that the historic police powers of the States were not to be superseded by the Federal Act unless that was the clear and manifest purpose of Congress." Rice v. Santa Fe Elevator Corp., 331 U.S. 218, 230, 67 S.Ct. 1146, 1152, 91 L.Ed. 1447 (1947); Jones v. Rath Packing Co., 430 U.S. 519, 525, 97 S.Ct. 1305, 1309, 51 L.Ed.2d 604 (1977). Under the relevant cases, one of the legitimate inquiries is whether Congress has either explicitly or implicitly declared that the States are prohibited from regulating the various aspects of oil-tanker operations and design with which the Tanker Law is concerned. As the Court noted in Rice, supra, 331 U.S. at 230, 67 S.Ct. at 1152:
8
"[The congressional] purpose may be evidenced in several ways. The scheme of federal regulation may be so pervasive as to make reasonable the inference that Congress left no room for the States to supplement it. Pennsylvania R. Co. v. Public Service Comm'n, 250 U.S. 566, 569, 40 S.Ct. 36, 37, 63 L.Ed. 1142; Cloverleaf Butter Co. v. Patterson, 315 U.S. 148, 786, 62 S.Ct. 491, 86 L.Ed. 754. Or the Act of Congress may touch a field in which the federal interest is so dominant that the federal system will be assumed to preclude enforcement of state laws on the same subject. Hines v. Davidowitz, 312 U.S. 52, 61 S.Ct. 399, 85 L.Ed. 581. Likewise, the object sought to be obtained by the federal law and the character of obligations imposed by it may reveal the same purpose. Southern R. Co. v. Railroad Commission, 236 U.S. 439, 35 S.Ct. 304, 59 L.Ed. 661; Charleston & W. C. R. Co. v. Varnville Co., 237 U.S. 597, 35 S.Ct. 715, 59 L.Ed. 1137, Ann.Cas.1916D, 333; New York Central R. Co. v. Winfield, 244 U.S. 147, 37 S.Ct. 546, 61 L.Ed. 1045, L.R.A.1918C, 439, Ann.Cas.1917D, 1139; Napier v. Atlantic Coast Line R. Co. [272 U.S. 605, 611, 47 S.Ct. 207, 209, 71 L.Ed. 432], supra."
9
Accord, City of Burbank v. Lockheed Air Terminal, Inc., 411 U.S. 624, 633, 93 S.Ct. 1854, 1859, 36 L.Ed.2d 547 (1973).
10
Even if Congress has not completely foreclosed state legislation in a particular area, a state statute is void to the extent that it actually conflicts with a valid federal statute. A conflict will be found "where compliance with both federal and state regulations is a physical impossibility . . .," Florida Lime & Avocado Growers, Inc. v. Paul, 373 U.S. 132, 142-143, 83 S.Ct. 1210, 1217, 10 L.Ed.2d 248 (1963), or where the state "law stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress." Hines v. Davidowitz, 312 U.S. 52, 67, 61 S.Ct. 399, 404, 85 L.Ed. 581 (1941); Jones v. Rath Packing Co., supra, 430 U.S. at 526, 540-541, 97 S.Ct. at 1310, 1316-1317. Accord, De Canas v. Bica, 424 U.S. 351, 363, 96 S.Ct. 933, 940, 47 L.Ed.2d 43 (1976).
III
11
With these principles in mind, we turn to an examination of each of the three operative provisions of the Tanker Law. We address first Wash.Rev.Code § 88.16.180 (Supp.1975), which requires both enrolled and registered7 oil tankers of at least 50,000 DWT to take on a pilot licensed by the State of Washington while navigating Puget Sound. The District Court held that insofar as the law required a tanker "enrolled in the coastwise trade" to have a local pilot on board, it was in direct conflict with 46 U.S.C. §§ 215, 364. We agree.
12
Section 64 provides that "every coastwise seagoing steam vessel subject to the navigation laws of the United States, . . . not sailing under register, shall, when under way, . . . be under the control and direction of pilots licensed by the Coast Guard."8 Section 215 adds that "[n]o State or municipal government shall impose upon pilots of steam vessels any obligation to procure a State or other license in addition to that issued by the United States . . .." It goes on to explain that the statute shall not be construed to "affect any regulation established by the laws of any State, requiring vessels entering or leaving a port of any such State, other than coastwise steam vessels, to take a pilot duly licensed or authorized by the laws of such State . . . ." (Emphasis added.) The Court has long held that these two statutes read together give the Federal Government exclusive authority to regulate pilots on enrolled vessels and that they preclude a State from imposing its own pilotage requirements upon them. See Anderson v. Pacific Coast S. S. Co., 225 U.S. 187, 32 S.Ct. 626, 56 L.Ed. 1047 (1912); Spraigue v. Thompson, 118 U.S. 90, 6 S.Ct. 988, 30 L.Ed. 115 (1886). Thus, to the extent that the Tanker Law requires enrolled tankers to take on state-licensed pilots, the District Court correctly concluded, as the State now concedes, that it was in conflict with federal law and was therefore invalid.
13
While the opinion of the court below indicated that the pilot provision of the Tanker Law was void only to the extent that it applied to tankers enrolled in the coastwise trade, the judgment itself declared the statute null and void in its entirety. No part of the statute was excepted from the scope of the injunctive relief. The judgment was overly broad, for just as it is clear that States may not regulate the pilots of enrolled vessels, it is equally clear that they are free to impose pilotage requirements on registered vessels entering and leaving their ports. Not only does 46 U.S.C. § 215 so provide, as was noted above, but so also does § 101(5) of the PWSA, 33 U.S.C. § 1221(5) (1970 ed., Supp. V), which authorizes the Secretary of Transportation to "require pilots on self-propelled vessels engaged in the foreign trades in areas and under circumstances where a pilot is not otherwise required by State law to be on board until the State having jurisdiction of an area involved establishes a requirement for a pilot in that area or under the circumstances involved . . . ." Accordingly, as appellees now agree, the State was free to require registered tankers in excess of 50,000 DWT to take on a state-licensed pilot upon entering Puget Sound.
IV
14
We next deal with § 88.16.190(2) of the Tanker Law, which requires enrolled and registered oil tankers of from 40,000 to 125,000 DWT to possess all of the following "standard safety features":
15
"(a) Shaft horsepower in the ration of one horsepower to each two and one-half deadweight tons; and
16
"(b) Twin screws; and
17
"(c) Double bottoms, underneath all oil and liquid cargo compartments; and
18
"(d) Two radars in working order and operating, one of which must be collision avoidance radar; and
19
"(e) Such other navigational position location systems as may be prescribed from time to time by the board of pilotage commissioners . . . ."
20
This section contains a proviso, however, stating that if the "tanker is in ballast or is under escort of a tug or tugs with an aggregate shaft horsepower equivalent to five percent of the deadweight tons of that tanker . . .," the design requirements are not applicable. The District Court held invalid this alternative design/tug requirement of the Tanker Law. We agree insofar as we hold that the foregoing design requirements, tanding alone, are invalid in the light of the PWSA and its regulatory implementation.
21
The PWSA contains two Titles representing somewhat overlapping provisions designed to insure vessel safety and the protection of the navigable waters, their resources, and shore areas from tanker cargo spillage. The focus of Title I, 33 U.S.C. §§ 1221-1227 (1970 ed., Supp. V), is traffic control at local ports; Title II's principal concern is tanker design and construction.9 For present purposes the relevant part is Title II, 46 U.S.C. § 391a (1970 ed., Supp. V), which amended the Tank Vessel Act of 1936, Rev.Stat. § 4417a, as added, 49 Stat. 1889.
22
Title II begins by declaring that the protection of life, property, and the marine environment from harm requires the promulgation of "comprehensive minimum standards of design, construction, alteration, repair, maintenance, and operation" for vessels carrying certain cargoes in bulk, primarily oil and fuel tankers. § 391a(1). To implement the twin goals of providing for vessel safety and protecting the marine environment, it is provided that the Secretary of the Department in which the Coast Guard is located10 "shall establish" such rules and regulations as may be necessary with respect to the design, construction, and operation of the covered vessels and with respect to a variety of related matters. § 391a(3). In issuing regulations, the Secretary is to consider the kinds and grades of cargo permitted to be on board such vessels, to consult with other federal agencies, and to identify separately the regulations established for vessel safety and those to protect marine environment. Ibid. Section 391a(5) provides for inspection of vessels for compliance with the Secretary's safety regulations.11 No vessel subject to Title II may have on board any of the specified cargoes until a certificate of inspection has been issued to the vessel and a permit endorsed thereon "indicating that such vessel is in compliance with the provisions of this section and the rules and regulations for vessel safety established hereunder, and showing the kinds and grades of such cargo that such vessel may have on board or transport." It is provided that in lieu of inspection under this section the Secretary is to accept from vessels of foreign nations valid certificates of inspection "recognized under law or treaty by the United States."
23
Title II also directs the Secretary to inspect tank vessels for compliance with the regulations which he is required to issue for the protection of the marine environment. § 391a(6).12 Compliance with these separate regulations, which must satisfy specified standards,13 and he consequent privilege of having on board the relevant cargo are evidenced by certificates of compliance issued by the Secretary or by appropriate endorsements on the vessels' certificates of inspection. Certificates are valid for the period specified by the Secretary and are subject to revocation when it is found that the vessel does not comply with the conditions upon which the certificate was issued.14 In lieu of a certificate of compliance with his own environmental regulations relating to vessel design, construction, alteration, and repair, the Secretary may, but need not, accept valid certificates from foreign vessels evidencing compliance with rules and regulations issued under a treaty, convention, or agreement providing for reciprocity of recognition of certificates or similar documents. § 391a(7)(D).
24
This statutory pattern shows that Congress, insofar as design characteristics are concerned, has entrusted to the Secretary the duty of determining which oil tankers are sufficiently safe to be allowed to proceed in the navigable waters of the United States. This indicates to us that Congress intended uniform national standards for design and construction of tankers that would foreclose the imposition of different or more stringent state requirements. In particular, as we see it, Congress did not anticipate that a vessel found to be in compliance with the Secretary's design and construction regulations and holding a Secretary's permit, or its equivalent, to carry the relevant cargo would nevertheless be barred by state law from operating in the navigable waters of the United States on the ground that its design characteristics constitute an undue hazard.
25
We do not question in the slightest the prior cases holding that enrolled and registered vessels must conform to "reasonable, nondiscriminatory conservation and environmental protection measures . . ." imposed by a State. Douglas v. Seacoast Products, Inc., 431 U.S. 265, 277, 97 S.Ct. 1740, 1748, 52 L.Ed.2d 304 (1977), citing Smith v. Maryland, 18 How. 71, 15 L.Ed. 269 (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). Similarly, the mere fact that a vessel has been inspected and found o comply with the Secretary's vessel safety regulations does not prevent a State or city from enforcing local laws having other purposes, such as a local smoke abatement law. Ibid. But in none of the relevant cases sustaining the application of state laws to federally licensed or inspected vessels did the federal licensing or inspection procedure implement a substantive rule of federal law addressed to the object also sought to be achieved by the challenged state regulation. Huron Portland Cement Co. v. Detroit, for example, made it plain that there was "no overlap between the scope of the federal ship inspection laws and that of the municipal ordinance . . ." there involved. Id., at 446, 80 S.Ct., at 817. The purpose of the "federal inspection statutes [was] to insure the seagoing safety of vessels . . . to affor[d] protection from the perils of maritime navigation," while "[b]y contrast, the sole aim of the Detroit ordinance [was] the elimination of air pollution to protect the health and enhance the cleanliness of the local community." Id., at 445, 80 S.Ct., at 817.
26
Kelly v. Washington, 302 U.S. 1, 58 S.Ct. 87, 82 L.Ed. 3 (1937), involved a similar situation. There, the Court concluded that the Federal Motor Boat Act, although applicable to the vessels in question, was of limited scope and did not include provision for "the inspection of the hull and machinery of respondents' motor-driven tugs in order to insure safety or determine seaworthiness . . .," as long as the tugs did not carry passengers, freight, or inflammable liquid cargo. Id., at 8, 58 S.Ct., at 91. It followed that state inspection to insure safety was not in conflict with federal law, the Court also holding that the limited federal regulations did not imply an intent to exclude state regulation of those matters not touched by the federal statute.
27
Here, we have the very situation that Huron Portland Cement Co. v. Detroit and Kelly v. Washington put aside. Title II aims at insuring vessel safety and protecting the marine environment; and the Secretary must issue all design and construction regulations that he deems necessary for these ends, after considering the specified statutory standards. The federal scheme thus aims precisely at the same ends as does § 88.16.190(2) of the Tanker Law. Furthermore, under the PWSA, after considering the statutory standards and issuing all design requirements that in his judgment are necessary, the Secretary inspects and certifies each vessel as sufficiently safe to protect the marine environment and issues a permit or its equivalent to carry tank-vessel cargoes. Refusing to accept the federal judgment, however, the State now seeks to exclude from Puget Sound vessels certified by the Secretary as having acceptable design characteristics, unless they satisfy the different and higher design requirements imposed by state law. The Supremacy Clause dictates that the federal judgment that a vessel is safe to navigate United States waters prevail over the contrary state judgment.
28
Enforcement of the state requirements would at least frustrate what seems to us to be the evident congressional intention to establish a uniform federal regime controlling the design of oil tankers. The original Tank Vessel Act, amended by Title II, sought to effect a "reasonable and uniform set of rules and regulations concerning ship construction . . .," H.R.Rep.No.2962, 74th Cong., 2d Sess., 2 (1936); and far from evincing a different purpose, the Title II amendments strongly indicate that insofar as tanker design is concerned, Congress anticipated the enforcement of federal standards that would pre-empt state efforts to mandate different or higher design requirements.15
29
That the Nation was to speak with one voice with respect to tanker-design standards is supported by the legislative history of Title II, particularly as it reveals a decided congressional preference for arriving at international standards for building tank vessels. The Senate Report recognizes that vessel design "has traditionally been an area for international rather than national action," and that "international solutions in this area are preferable since the problem of marine pollution is world-wide."16 Senate Report 23. Congress did provide that the Secretary's safety regulations would not apply to foreign ships holding compliance certificates under regulations arrived at by international agreement; but, in the end, the environmental protection regulations were made applicable to foreign as well as to American vessels since it was thought to be necessary for the achievement of the Act's purposes.17
30
Although not acceding to the request of those who thought that foreign vessels should be completely exempt from regulation under Title II,18 Congress did not abandon the effort to achieve international agreement on what the proper design standards should be. It wrote into Title II a deferral procedure, requiring the Secretary at the outset to transmit his proposed environmental protection rules and regulations with respect to vessel design to the appropriate international forums for consideration as international standards. § 391a(7)(B). In order to facilitate the international consideration of these design requirements, Title II specified that the rules and regulations governing foreign vessels and United States vessels engaged in foreign trade could not become effective before January 1, 1974, unless they were consonant with an international agreement. § 391a(7)(C). As noted by the Senate Report, this requirement demonstrated the "committee's strong intention that standards for the protection of the marine environment be adopted, multilaterally if possible, but adopted in any event." Senate Report 28.
31
Congress expressed a preference for international action and expressly anticipated that foreign vessels would or could be considered sufficiently safe for certification by the Secretary if they satisfied the requirements arrived at by treaty or convention; it is therefore clear that Title II leaves no room for the States to impose different or stricter design requirements than those which Congress has enacted with the hope of having them internationally adopted or has accepted as the result of international accord. A state law in this area, such as the first part of § 88.16.190(2), would frustrate the congressional desire of achieving uniform, international standards and is thus at odds with "the object sought to be obtained by [Title II] and the character of obligations imposed by it . . . ." Rice v. Santa Fe Elevator Corp., 331 U.S., at 230, 67 S.Ct., at 1152. In this respect, the District Court was quite correct.19
V
32
Of course, that a tanker is certified under federal law as a safe vessel insofar as its design and construction characteristics are concerned does not mean that it is free to ignore otherwise valid state or federal rules or regulations that do not constitute design or construction specifications. Registered vessels, for example, as we have already indicated, must observe Washington's pilotage requirement. In our view, both enrolled and registered vessels must also comply with the provision of the Tanker Law that requires tug escorts for tankers over 40,000 DWT that do not satisfy the design provisions specified in § 88.16.190(2). This conclusion requires analysis of Title I of the PWSA, 33 U.S.C. §§ 1221-1227 (1970 ed., Supp. V).
A.
33
In order to prevent damage to vessels, structures, and shore areas, as well as environmental harm to navigable waters and the resources therein that might result from vessel or structure damage, Title I authorizes the Secretary to establish and operate "vessel traffic services and systems" for ports subject to congested traffic,20 as well as to require ships to comply with the systems and to have the equipment necessary to do so. §§ 1221(1) and (2). The Secretary may "control vessel traffic" under various hazardous conditions by specifying the times for vessel movement, by establishing size and speed limitations and vessel operating conditions, and by restricting vessel operation to those vessels having the particular operating characteristics which he considers necessary for safe operation under the circumstances. § 1221(3). In addition, the Secretary may require vessels engaged in foreign trade to carry pilots until the State having jurisdiction establishes a pilot requirement, § 1221(5); he may establish minimum safety equipment requirements for shore structures, § 1221(7); and he may establish waterfront safety zones or other measures for limited, controlled, or conditional access when nece sary for the protection of vessels, structures, waters, or shore areas, § 1221(8).
34
In carrying out his responsibilities under the Act, the Secretary may issue rules and regulations. § 1224. In doing so, he is directed to consider a wide variety of interests that might affect the exercise of his authority, such as possible environmental impact, the scope and degree of the hazards involved, and "vessel traffic characteristics including minimum interference with the flow of commercial traffic, traffic volume, the sizes and types of vessels, the usual nature of local cargoes, and similar factors." § 1222(e). Section 1222(b) provides that nothing in Title I is to "prevent a State or political subdivision thereof from prescribing for structures only higher safety equipment requirements or safety standards than those which may be prescribed pursuant to this chapter."
35
Exercising this authority, the Secretary, through his delegate, the Coast Guard, has issued Navigation Safety Regulations, 33 CFR Part 164 (adopted at 42 Fed.Reg. 5956 (1977)). Of particular importance to this case, he has promulgated the Puget Sound Vessel Traffic System containing general rules, communication rules, vessel movement reporting requirements, a traffic separation scheme, special rules for ship movement in Rosario Strait, descriptions and geographic coordinates of the separation zones and traffic lanes, and a specification for precautionary areas and reporting points.21 33 CFR Part 161, Subpart B (1976), as amended, 42 Fed.Reg. 29480 (1977). There is also delegated to Coast Guard district commanders and captains of ports the authority to exercise the Secretary's powers under § 1221(3) to direct the anchoring, mooring, and movements of vessels; temporarily to establish traffic routing schemes; and to specify vessel size and speed limitations and operating conditions. 33 CFR § 160.35 (1976). Traffic in Rosario Strait is subject to a local Coast Guard rule prohibiting "the passage of more than one 70,000 DWT vessel through Rosario Strait in either direction at any given time." During the periods of bad weather, the size limitation is reduced to approximately 40,000 DWT. App. 65.
B
36
A tug-escort provision is not a design requirement, such as is promulgated under Title II. It is more akin to an operating rule arising from the peculiarities of local waters that call for special precautionary measures, and, as such, is a safety measure clearly within the reach of the Secretary's authority under §§ 1221(3)(iii) and (iv) to establish "vessel size and speed limitations and vessel operating conditions" and to restrict vessel operation to those with "particular operating characteristics and capabilities . . . ." Title I, however, merely authorizes and does not require the Secretary to issue regulations to implemen the provisions of the Title; and assuming that § 1222(b) prevents a State from issuing "higher safety equipment requirements or safety standards," see infra, at 174, it does so only with respect to those requirements or standards "which may be prescribed pursuant to this chapter."
37
The relevant inquiry under Title I with respect to the State's power to impose a tug-escort rule is thus whether the Secretary has either promulgated his own tug requirement for Puget Sound tanker navigation or has decided that no such requirement should be imposed at all. It does not appear to us that he has yet taken either course. He has, however, issued an advance notice of proposed rulemaking, 41 Fed.Reg. 18770 (1976), to amend his Navigation Safety Regulations issued under Title I, 33 CFR Part 164 (1977), so as to require tug escorts for certain vessels operating in confined waters.22 The notice says that these rules, if adopted, "are intended to provide uniform guidance for the maritime industry and Captains of the Port." 41 Fed.Reg. 18771 (1976). It may be that rules will be forthcoming that will pre-empt the State's present tug-escort rule, but until that occurs, the State's requirement need not give way under the Supremacy Clause.23
38
Nor for constitutional purposes does it make substantial difference that under the Tanker Law those vessels that satisfy the State's design requirements are in effect exempted from the tug-escort requirement.24 Given the validity of a general rule prescribing tug escorts for all tankers, Washington is also privileged, insofar as the Supremacy Clause is concerned, to waive the rule for tankers having specified design characteristics.25 For this reason, we conclude that the District Court erred in holding that the alternative tug requirement of § 88.16.190(2) was invalid because of its conflict with the PWSA.
VI
39
We cannot arrive at the same conclusion with respect to the remaining provision of the Tanker Law at issue here. Section 88.16.190(1) excludes from Puget Sound under any circumstances any tanker in excess of 125,000 DWT. In our view, this provision is invalid in light of Title I and the Secretary's actions taken thereunder.
40
We begin with the premise that the Secretary has the authority to establish "vessel size and speed limitations," § 1221(3)(iii), and that local Coast Guard officers have been authorized to exercise this power on his behalf. Furthermore, § 1222(b), by permitting the State to impose higher equipment or safety standards "for structures only," impliedly forbids higher state standards for vessels. The implication is strongly supported by the legislative history of the PWSA. The House Report explains that the original wording of the bill did "not make it absolutely clear that the Coast Guard regulation of vessels preempts state action in this field" and says that § 1222(b) was amended to provide "a positive statement retaining State jurisdiction over structures and making clear that State regulation of vessels is not contemplated." House Report 15.
41
Relying on the legislative history, the appellants argue that the preclusive effect of § 1222(b) is restricted to vessel equipment requirements. The statute, however, belies this argument, for it expressly reaches vessel "safety standards" as well as equipment. A limitation on vessel size would seem to fall squarely within the category of safety standards, since the Secretary's authority to impose size limits on vessels navigating Puget Sound is designed to prevent damage to vessels and to the navigable waters and is couched in terms of controlling vessel traffic in areas "which he determines to be especially hazardous."
42
The pertinent inquiry at this point thus becomes whether the Secretary, through his delegate, has addressed and acted upon the question of size limitations. Appellees and the United States insist that he has done so by his local navigation rule with respect to Rosario Strait: The rule prohibits the passage of more than one 70,000 DWT vessel through Rosario Strait in either direction at any given time, and in periods of bad weather, the "size limitation" is reduced to approximately 40,000 DWT. On the record before us, it appears sufficiently clear that federal authorities have indeed dealt with the issue of size and have determined whether and in what circumstances tanker size is to limit navigation in Puget Sound. The Tanker Law purports to impose a general ban on large tankers, but the Secretary's response has been a much more limited one. Because under § 1222(b) the State may not impose higher safety standards than those prescribed by the Secretary under Title I, the size limitation of § 88.16.190(1) may not be enforced.
43
There is also orce to the position of appellees and the United States that the size regulation imposed by the Tanker Law, if not pre-empted under Title I, is similar to or indistinguishable from a design requirement which Title II reserves to the federal regime. This may be true if the size limit represents a state judgment that, as a matter of safety and environmental protection generally, tankers should not exceed 125,000 DWT. In that event, the State should not be permitted to prevail over a contrary design judgment made by federal authorities in pursuit of uniform national and international goals. On the other hand, if Washington's exclusion of large tankers from Puget Sound is in reality based on water depth in Puget Sound or on other local peculiarities, the Tanker Law in this respect would appear to be within the scope of Title I, in which event also state and federal law would represent contrary judgments, and the state limitation would have to give way.26
44
Our conclusion as to the State's ban on large tankers is consistent with the legislative history of Title I. In exercising his authority under the Title, the Secretary is directed to consult with other agencies in order "to assure consistency of regulations . . .," § 1222(c), and also to "consider fully the wide variety of interests which may be affected . . .." § 1222(e). These twin themes—consistency of regulation and thoroughness of consideration—reflect the substance of the Committee Reports. The House Report indicates that a good number of the witnesses who testified before the House subcommittee stated that one of the strong points of Title I was "the imposition of federal control in the areas envisioned by the bill which will insure regulatory and enforcement uniformity throughout all the covered areas." House Report 8.27 Such a view was expressed by the Commandant of the Coast Guard, Admiral Bender, who pointed out that with a federally operated traffic system, the necessary research and development could be carried out by a single authority and then utilized around the country "with differences APPLIED . . . TO THE PARTICULAR PORTS . . .." ibid. he added that the same agency of the Federal Government that developed the traffic systems should then be responsible for enforcing them. Ibid.
45
While the House Report notes the importance of uniformity of regulation and enforcement, the Senate Report stresses the careful consideration that the Secretary must give to various factors before exercising his authority under Title I. It states that the Secretary "is required to balance a number of considerations including the scope and degree of hazard, vessel traffic characteristics, conditions peculiar to a particular port or waterway, environmental factors, economic impact, and so forth." Senate Report 34. It was also "anticipated that the exercise of the authority provided . . . regarding the establishment of vessels size and speed limitations [would] not be imposed universally, but rather [would] be exercised with due consideration to the factors" set forth above and with due regard for "such matters as combinations of horsepower, drafts of vessels, rivers, depth and width of channels, design types of vessels involved, and other relevant circumstances." Id., at 33.
46
We read these statements by Congress as indicating that it desired someone with an overview of all the possible ramifications of the regulation of oil tankers to promulgate limitations on tanker size and that he should act only after balancing all of the competing interests. While it was not anticipated that the final product of this deliberation would be the promulgation of traffic safety systems applicable across the board to all United States ports, it was anticipated that there would be a single decisionmaker, rather than a different one in each State.
47
Against this background, we think the pre-emptive impact of § 1222(b) is an understandable expression of congressional intent. Furthermore, even without § 1222(b), we would be reluctant to sustain the Tanker Law's absolute ban on tankers larger than 125,000 DWT. The Court has previously recognized that "where failure of . . . federal officials affirmatively to exercise their full authority takes on the character of a ruling that no such regulation is appropriate or approved pursuant to the policy of the statute," States are not permitted to use their police power to enact such a regulation. Bethlehem Steel Co. v. New York State Labor Relations Board, 330 U.S. 767, 774, 67 S.Ct. 1026, 1030, 91 L.Ed. 1234 (1947); Napier v. Atlantic Coast Line R. Co., 272 U.S. 605, 47 S.Ct. 207, 71 L.Ed. 432 (1926). We think that in this case the Secretary's failure to promulgate a ban on the operations of oil tankers in excess of 125,000 DWT in Puget Sound takes on such a character. As noted above, a clear policy of the statute is that the Secretary shall carefully consider "the wide variety of interests which may be affected by the exercise of his authority," § 1222(e), and that he shall restrict the application of vessel size limitations to those areas where they are particularly necessary. In the case of Puget Sound, the Secretary has exercised his authority in accordance with the statutory directives and has promulgated a vessel-traffic-control system which contains only a narrow limitation on the operation of supertankers. This being the case, we conclude that Washington is precluded from enforcing the size limitation contained in the Tanker Law.28
VII
48
We also reject appellees' additional constitutional challenges to the State's tug-escort requirement for vessels not satisfying its design standards.29 Appellees contend that this provision, even if not pre-empted by the PWSA, violates the Commerce Clause because it is an indirect attempt to regulate the design and equipment of tankers, an area of regulation that appellees contend necessitates a uniform national rule. We have previously rejected this claim, concluding that the provision may be viewed as simply a tug-escort requirement since it does not have the effect of forcing compliance with the design specifications set forth in the provision. See n. 25, supra. So viewed, it becomes apparent that the Commerce Clause does not prevent a State from enacting a regulation of this type. Similar in its nature to a local pilotage requirement, a requirement that a vessel take on a tug escort when entering a particular body of water is not the type of regulation that demands a uniform national rule. See Cooley v. Board of Wardens, 12 How. 299, 13 L.Ed. 996 (1852). Nor does it appear from the record that the requirement impedes the free and efficient flow of interstate and foreign commerce, for the cost of the tug escort for a 120,000 DWT tanker is less than one cent per barrel of oil and the amount of oil processed at Puget Sound refineries has not declined as a result of the provision's enforcement. App. 68. Accordingly, we hold that § 88.16.190(2) of the Tanker Law is not invalid under the Commerce Clause.
49
Similarly, we cannot agree with the additional claim that the tug-escort provision interferes with the Federal Government's authority to conduct foreign affairs. Again, appellees' argument is based on the contention that the overall effect of § 88.16.190(2) is to coerce tanker owners into outfitting their vessels with the specified design requirements. Were that so, we might agree that the provision constituted an invalid interference with the Federal Government's attempt to achieve international agreement on the regulation of tanker design. The provision as we view it, however, does no more than require the use of tug escorts within Puget Sound, a requirement with insignificant international consequences. We, therefore, decline to declare § 88.16.190(2) invalid for either of the additional reasons urged by appellees.
50
Accordingly, the judgment of the three-judge District Court is affirmed in part and reversed in part, and the case is remanded for further proceedings consistent with this opinion.
51
It is so ordered.
52
Mr. Justice MAR HALL, with whom Mr. Justice BRENNAN and Mr. Justice REHNQUIST join, concurring in part and dissenting in part.
53
The Washington Tanker Law at issue here has three operative provisions: (1) a requirement that every oil tanker of 50,000 deadweight tons (DWT) or larger employ a pilot licensed by the State of Washington while navigating Puget Sound and adjacent waters, Wash. Rev. Code § 88.16.180 (Supp.1975); (2) a requirement that every oil tanker of from 40,000 to 125,000 DWT either possess certain safety features or utilize tug escorts while operating in Puget Sound, § 88.16.190(2); and (3) a size limitation, barring tankers in excess of 125,000 DWT from the Sound, § 88.16.190(1).
54
I agree with the Court that the pilotage requirement is pre-empted only with respect to enrolled vessels. I also agree that the tug-escort requirement is fully valid, at least until such time as the Secretary of Transportation or his delegate promulgates a federal tug-escort rule or decides, after full consideration, that no such rule is necessary. I therefore join Parts I, II, III, V, and VII of the Court's opinion.
55
In the current posture of this case, however, I see no need to speculate, as the Court does, on the validity of the safety features alternative to the tug requirement. Since the effective date of the Tanker Law, all tankers—including those owned or chartered by appellees—have employed tug escorts rather than attempting to satisfy the alternative safety requirements. The relative expense of compliance, moreover, makes it extremely unlikely, at least for the foreseeable future, that any tankers will be constructed or redesigned to meet the law's requirements.1 Indeed, the Court itself concludes that § 88.16.190(2) "may be viewed as simply a tug-escort requirement since it does not have the effect of forcing compliance with the design specifications set forth in the provision." Ante, at 179; see ante, at 173 n. 25, and 180. Accordingly, I cannot join Part IV of the Court's opinion.
56
I also cannot agree with the Court's conclusion in Part VI of its opinion that the size limitation contained in the Tanker Law is invalid under the Supremacy Clause. To reach this conclusion, the Court relies primarily on an analysis of Title I of the PWSA and the Secretary of Transportation's actions thereunder. I agree with the Court that the Secretary has authority to establish vessel size limitations based on the characteristics of particular waters,2 and that a State is not free to impose more stringent requirements once the Secretary has exercised that authority or has decided, after balancing all of the relevant factors, that a size limitation would not be appropriate. On the other hand, Title I does not by its own force pre-empt all state regulation of vessel size, since it "merely authorizes and does not require the Secretary to issue regulations to implement the provisions of the Title." Ante, at 171. Thus, as the Court notes, "[t]he pertinent inquiry at this point . . . [is] whether the Secretary, through his delegate, has addressed and acted upon the question of size limitations." Ante, at 174.
57
The Court concludes that the Secretary's delegate, the Coast Guard, has in fact considered the issue of size limitations for Puget Sound and reached a judgment contrary to the one embodied in the Tanker Law. Under well-established principles, however, state law should be displaced " 'only to the extent necessary to protect the achievement of the aims of' " federal law; whenever possible, we should "reconcile 'the operation of both statutory schemes with one another rather than holding [the state scheme] completely ousted.' " Merrill Lynch, Pierce, Fenner & Smith, Inc. v. Ware, 414 U.S. 117, 127, 94 S.Ct. 383, 390, 38 L.Ed.2d 348 (1973), quoting Silver v. New York Stock Exchange, 373 U.S. 341, 357, 361, 83 S.Ct. 1246, 1257-1259, 10 L.Ed.2d 389 (1963); accord, De Canas v. Bica, 424 U.S. 351, 357-358, n. 5, 96 S.Ct. 933, 937, 47 L.Ed.2d 43 (1976). Viewed in light of these principles, the record simply does not support the Court's finding of conflict between state and federal law.
58
The Coast Guard's unwritten "local navigation rule," which prohibits passage of more than one 70,000 DWT vessel through Rosario Strait at any given time, is the sole evidence cited by the Court to show that size limitations for Puget Sound have been considered by federal authorities. Ante, at 174-175. On this record, however, the rule cannot be said to reflect a determination that the size limitations set forth in the Tanker Law are inappropriate or unnecessary. First, there is no indication that in establishing the vessel traffic rule for Rosario Strait the Coast Guard considered the need for promulgating size limitations for the entire Sound.3 Second, even assuming that the Rosario Strait rule resulted from consideration of the size issue with respect to the entire area, appellees have not demonstrated that the rule evinces a judgment contrary to the provisions of the Tanker Law. Under the express terms of the PWSA, the existence of local vessel-traffic-control schemes must be weighed in the balance in determining whether, and to what extent, federal size limitations should be imposed.4 There is no evidence in the record that the Rosario Strait "size limitation" was in existence or even under consideration prior to passage of the Tanker Law.5 Thus appellees have left unrebutted the inference that the Coast Guard's own limited rule was built upon, and is therefore entirely consistent with, the framework already created by the Tanker Law's restrictions.
59
Perhaps in recognition of the tenuousness of its finding of conflict with federal regulation under Title I, the Court suggests that the size limitation imposed by the Tanker Law might also be pre-empted under Title II of the PWSA. Ante, at 175. In particular, the Court theorizes that the state rule might be pre-empted if it "represents a state judgment that, as a matter of safety and environmental protection generally, tankers should not exceed 125,000 DWT." Ibid. (emphasis added). It is clear, however, that the Tanker Law was not merely a reaction to the problems arising out of tanker operations in general, but instead was a measure tailored to respond to unique local conditions—in particular, the unusual susceptibility of Puget Sound to damage from large oil spills and the peculiar navigational problems associated with tanker operations in the Sound.6 Thus, there is no basis for pre-emption under Title II.7
60
For similar reasons, I would hold that Washington's size regulation does not violate the Commerce Clause. Since water depth and other navigational conditions vary from port to port, local regulation of tanker access—like pilotage and tug requirements, and other harbor and river regulation—is certainly appropriate, and perhaps even necessary, in the absence of determinative federal action. See, e. g., Cooley v. Board of Wardens, 12 How. 299, 319, 13 L.Ed. 996 (1852); Packet Co. v. Catlettsburg, 105 U.S. 559, 562-563, 26 L.Ed. 1169 (1882). Appellees have not demonstrated that the Tanker Law's size limit is an irrational or ineffective means of promoting safety and environmental protection,8 or have they shown that the provision imposes any substantial burden on interstate or foreign commerce.9 Consequently, it is clear that appellees have not carried their burden of showing that the provision's impact on interstate or foreign commerce "is clearly excessive in relation to the putative local benefits." Pike v. Bruce Church, Inc., 397 U.S. 137, 142, 90 S.Ct. 844, 847, 25 L.Ed.2d 174 (1970).
61
I do not find any of appellees' other arguments persuasive. I would therefore sustain the size limitation imposed by the Tanker Law.
62
Mr. Justice STEVENS, with whom Mr. Justice POWELL joins, concurring in part and dissenting in part.
63
The federal interest in uniform regulation of commerce on the high seas, reinforced by the Supremacy Clause, "dictates that the federal judgment that a vessel is safe to navigate United States waters prevail over the contrary state judgment." Ante, at 165. For that reason, as the Court explains in Part IV of its opinion, we must reject the judgment expressed by the Legislature of the State of Washington that an oil tanker of 40,000 to 125,000 deadweight tons cannot safely navigate in Puget Sound unless it possesses the "standard safety features" prescribed by § 88.16.190(2) of the Washington Code.1 As the Court holds, the state statute imposing those design requirements is invalid. It follows, I believe, that the State may not impose any special restrictions on vessels which do not satisfy these invalid criteria.
64
The Court correctly holds that the State may not exclude vessels in that category from Puget Sound but it inconsistently allows the State to impose a costly tug-escort requirement on those vessels and no others. This tug-escort requirement is not, by its terms, a general safety rule from which tankers are exempt if they possess the invalid design features.2 Quite the contrary, the tug-escort requirement is merely a proviso in § 88.16.190(2)—the section of the Washington Tanker Law that prescribes the design requirements; it is imposed only on tankers that do not comply with those requirements. The federal interest that prohibits state enforcement of those requirements should also prohibit state enforcement of a special penalty for failure to comply with them.
65
If the federal interest in uniformity is to be vindicated, the magnitude of the special burden imposed by any one State's attempt to penalize noncompliance with its invalid rules is of no consequence. The tug-escort penalty imposed by Washington will cost appellee ARCO approximately $277,500 per year. The significance of that cost cannot be determined simply by comparison with the capital investment which would be involved in complying with Washington's invalid design specifications. Rather, it should be recognized that this initial burden is subject to addition and multiplication by similar action in other States.3 Moreover, whether or not so multiplied, the imposition of any special restriction impairs the congressional determination to provide uniform standards for vessel design and construction.4
66
Since I am persuaded that the tug-escort requirement is an inseparable appendage to the invalid design requirements, the invalidity of one necessarily infects the other. I therefore respectfully dissent from Parts V and VII of the Court's opinion.5
1
Puget Sound is an estuary consisting of 2,500 square miles of inlets, bays, and channels in the northwestern part of Washington. More than 200 islands are located within the Sound, and numerous marshes, tidal flats, wetlands, and beaches are found along the 2,000 miles of shoreline. The Sound's waters and shorelines provide recreational, scientific, and educational opportunities, as well as navigational and commercial uses, for Washington citizens and others. The Sound, which is connected to the Pacific Ocean by the Strait of Juan de Fuca, is constantly navigated by commercial and recreational vessels and is a water resource of great value to the State, as well as to the United States.
2
We were informed during oral argument by the Attorney General of Washington that the pipeline from Canada to Cherry Point is no longer in service. Tr. of Oral Arg. 6.
3
The term "deadweight tons" is defined for purposes of the Tanker Law as the cargo-carrying capacity of a vessel, including necessary fuel oils, stores, and potable waters, as expressed in long tons (2,240 pounds per long ton).
4
Four environmental groups—Coalition Against Oil Pollution, National Wildlife Federation, Sierra Club, and Environmental Defense Fund, Inc.—and the prosecuting attorney for King County, Wash., intervened as defendants.
5
The United States has since modified its views and no longer contends that the Tanker Law is in all respects pre-empted by federal law.
6
The state defendants challenged the District Court's jurisdiction over them, asserting sovereign immunity under the Eleventh Amendment. They
recognized that in Ex parte Young, 209 U.S. 123, 28 S.Ct. 441, 52 L.Ed. 714 (1908), the Court held that the Eleventh Amendment does not bar suit in federal court against a state official for the purpose of obtaining an injunction against his enforcement of a state law alleged to be unconstitutional, but urged the District Court to overrule that decision or to restrict its application. The District Court declined to do so. The request is repeated here, and we reject it.
7
Enrolled vessels are those "engaged in domestic or coastwide trade or used for fishing," whereas registered vessels are those engaged in trade with foreign countries. Douglas v. Seacoast Products, Inc., 431 U.S. 265, 272-273, 97 S.Ct. 1740, 1745, 52 L.Ed.2d 304 (1977).
8
Included within the definition of steam vessels are "[a]ll vessels, regardless of tonnage size, or manner of propulsion, and whether self-propelled or not, and whether carrying freight or passengers for hire or not, . . . that shall have on board liquid cargo in bulk which is—(A) inflammable or combustible, or (B) oil, of any kind or in any form, . . . or (C) designated as a hazardous polluting substance . . . ." 46 U.S.C. § 391a(2) (1970 ed., Supp. V).
9
The Senate Report compares Title I to "providing safer surface highways and traffic controls for automobiles," while Title II is likened to "providing safer automobiles to transit those highways." S.Rep. No. 92-724, pp. 9-10 (1972) (Senate Report), U.S.Code Cong. & Admin.News 1972, pp. 2766, 2769.
10
The Coast Guard is located in the Department of Transportation. Thus references to the "Secretary" are to the Secretary of that Department.
11
The Secretary's current safety regulations with respect to the design and equipment of tank vessels appear at 46 CFR Parts 30-40 (1976). Section 31.05-1 of the regulations provides for the issuance of certificates of inspection to covered vessels complying with the applicable law and regulations and for endorsement thereon showing approval for the carriage of the particular cargoes specified. The regulation provides that "such endorsement shall serve as a permit for such vessel to operate."
12
As directed by Title II, the Secretary, through his delegate, the Coast Guard, see 49 C.F.R. § 1.46(n)(4) (1976), has issued rules and regulations for protection of the marine environment relating to United States tank vessels carrying oil in domestic trade. 33 CFR Part 157 (1977). These regulations were initially designed to conform to the standards specified in a 1973 international convention, but have since been supplemented by additional requirements for new vessels going beyond the convention. 41 Fed.Reg. 54177 (1976). They have also been extended to vessels in the foreign trade, including foreign-flag vessels. Ibid. It appears that the Coast Guard is now engaged in a rulemaking proceeding which looks toward the imposition of still more stringent design and construction standards. 42 Fed.Reg. 24868 (1977).
13
Title II in relevant part, 46 U.S.C. § 391a(7)(A) (1970 ed., Supp. V), provides:
"Such rules and regulations shall, to the extent possible, include but not be limited to standards to improve vessel maneuvering and stopping ability and otherwise reduce the possibility of collision, grounding, or other accident, and to reduce damage to the marine environment by normal vessel operations such as ballasting and deballasting, cargo handling, and other activities."
14
It should also be noted that the Secretary has authority under Title II to insure that adequately trained personnel are in charge of tankers. He is authorized to certify "tankermen" and to state the kinds of cargo that the holder of such certificate is, in the judgment of the Secretary, qualified to handle aboard vessels with safety. 46 U.S.C. § 391a(9) (1970 ed., Supp. V).
15
The Court has previously observed that ship design and construction standards are matters for national attention. In Kelly v. Washington, 302 U.S. 1, 58 S.Ct. 87, 82 L.Ed. 3 (1937), in the course of upholding state inspection of the particul r vessels there involved, the Court stated that the state law was "a comprehensive code" and that
"it has provisions which may be deemed to fall within the class of regulations which Congress alone can provide. For example, Congress may establish standards and designs for the structure and equipment of vessels, and may prescribe rules for their operation, which could not properly be left to the diverse action of the States. The State of Washington might prescribe standards, designs, equipment and rules of one sort, Oregon another, California another, and so on." Id., at 14-15, 58 S.Ct., at 94.
Here, Congress has taken unto itself the matter of tanker-design standards, and the Tanker Law's design provisions are unenforceable.
16
Elsewhere in the Senate Report it is stated: "The committee fully concurs that multilateral action with respect to comprehensive standards for the design, construction, maintenance and operation of tankers for the protection of the marine environment would be far preferable to unilateral imposition of standards." Senate Report 23.
17
The Senate Report notes that eliminating foreign vessels from Title II would be "ineffective, and possibly self-defeating," because approximately 85% of the vessels in the navigable waters of the United States are of foreign registry. Id., at 22. The Report adds that making the Secretary's regulations applicable only to American ships would put them at a competitive disadvantage with foreign-flag ships. Ibid.
18
The Department of State and the Department of Transportation, as well as 12 foreign nations, expressed concern about Title II's authorization of the unilateral imposition of design standards on foreign vessels. Id., at 23.
19
We are unconvinced that because Title II speaks of the establishment of comprehensive "minimum standards" Florida Lime & Avocado Growers, Inc. v. Paul, 373 U.S. 132, 83 S.Ct. 1210, 10 L.Ed.2d 248 (1963), requires recognition of state authority to impose higher standards than the Secretary has prescribed. In that case, we sustained the state regulation against claims of pre-emption, but we did not rely solely on the statutory reference to "minimum standards" or indicate that it furnished a litmus-paper test for resolving issues of pre-emption. Indeed, there were other provisions in the Federal Act in question that "militate[d] even more strongly against federal displacement of [the] state regulations." Id., at 148, 83 S.Ct., at 1220. Furthermore, the federal regulations claimed to pre-empt state law were drafted and administered by local organizations and were "designed to do no more than promote orderly competition among the South Florida [avocado] growers." Id., at 151, 83 S.Ct., at 1222. Here it is sufficiently clear that Congress directed the promulgation of standards on the national level, as well as national enforcement, with vessels having design characteristics satisfying federal law being privileged to carry tank-vessel cargoes in United States waters.
20
From 1950 until the PWSA was enacted, the Coast Guard carried out its port safety program pursuant to a delegation from the President of his authority under the Magnuson Act, 50 U.S.C. § 191. That Act based the President's authority to promulgate rules governing the operation and inspection of vessels upon his determination that the country's national security was endangered. H.R.Rep.No.92-563, p. 2 (1971) (House Report). The House Committee that considered Title I of the PWSA intended it to broaden the Coast Guard's authority to establish rules for port safety and protection of the environment. The Committee Report states:
"The enactment of H.R.8140 would serve an important dual purpose. First, it would bolster the Coast Guard's authority and capability to handle adequately the serious problems of marine safety and water pollution that confront us today. Second, it would remedy the long-standing problem concerning the statutory basis for the Coast Guard's port safety program." Ibid.
21
Local Coast Guard authorities have published an operating manual containing the vessel traffic system for Puget Sound and explanatory materials. App. 155.
22
The advance notice of proposed rulemaking states: "The Coast Guard is considering amending Part 164 of Title 33, Code of Federal Regulations to require minimum standards for tug assistance for vessels operating in confined waters to reduce the potential for collisions, rammings, and groundings in these areas." 41 Fed.Reg. 18770 (1976). It states that the following factors will be considered in developing the rules: size of vessel, displacement, propulsion, availability of multiple screws or bow thrusters, controllability, type of cargo, availability of safety standards, and actual or predicted adverse weather conditions. Id., at 18771.
23
Appellees insist that the Secretary through his Coast Guard delegates has already exercised his authority to require tugs in Puget Sound to the extent he deems necessary and that the State should therefore not be permitted to impose stricter provisions. Appellees submit letters or other evidence indicating that the local Coast Guard authorities have required tug escorts for carriers of liquefied petroleum gas and on one occasion for another type of vessel. This evidence is not part of the record before us; but even accepting it, we cannot say that federal authorities have settled upon whether and in what circumstances tug escorts for oil tankers in Puget Sound should be required. The entire subject of tug escorts has been placed on the Secretary's agenda, seemingly for definitive action, by the notice of proposed rulemaking referred to in the text.
24
In fact, at the time of trial all tankers entering Puget Sound were required to have a tug escort, for no tanker then afloat had all of the design features required by the Tanker Law. App. 66.
25
We do not agree with appellees' assertion that the tug-escort provision, which is an alternative to the design requirements of the Tanker Law, will exert pressure on tanker owners to comply with the design standards and hence is an indirect method of achieving what they submit is beyond state power under Title II. The cost of tug escorts for all of appellee ARCO's tankers in Puget Sound is estimated at 277,500 per year. While not a negligible amount, it is only a fraction of the estimated cost of outfitting a single tanker with the safety features required by § 88.16.190(2). The Office of Technology Assessment of Congress has estimated that constructing a new tanker with a double bottom and twin screws, just two of the required features, would add roughly $8.8 million to the cost of a 150,000 DWT tanker. Thus, contrary to the appellees' contention, it is very doubtful that the provision will pressure tanker operators into complying with the design standards specified in § 88.16.190(2). While the tug provision may be viewed as a penalty for noncompliance with the State's design requirements, it does not "stan[d] as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress." Hines v. Davidowitz, 312 U.S. 52, 67, 61 S.Ct. 399, 404, 85 L.Ed. 581 (1941). The overall effect of § 88.16.190(2) is to require tankers of over 40,000 DWT to have a tug escort while they navigate Puget Sound, a result in no way inconsistent with the PWSA as it is currently being implemented.
26
It appears that the minimum water depth in Rosario Strait is 60 feet, App. 65, which according to the design standards used by the United States at the 1973 International Conference on Marine Pollution would accommodate vessels well in excess of 120,000 DWT. Id., at 80.
27
During the hearings in the House, for example, Representative Keith expressed concern that States might on their own enact regulations restricting the size of vessels, noting that Delaware had already done so. He stated that "[w]e do not want the States to resort to individual actions that adversely affect our national interest." Hearings on H.R.867, H.R.3635, H.R.8140 before the Subcommittee on Coast Guard, Coast and Geodetic Survey, and Navigation of the House Committee on Merchant Marine and Fisheries, 92d Cong., 1st Sess., 30 (1971). The Commandant of the Coast Guard, Admiral Bender, responded that the Coast Guard "believe[s] it is preferable for the approach to the problem of the giant tankers in particular to be resolved on an international basis." Ibid.
A representative of the Sierra Club testified before the Senate committee considering the PWSA and suggested the advisability of regulations limiting the size of vessels. Hearings on S. 2074 before the Senate Committee on Commerce, 92d Cong., 1st Sess., 78 (1971). In response to this suggestion, Senator Inouye questioned whether the necessary result of such a regulation would not be an increase in the number of tankers, so as to meet the Nation's requirements for oil. The Sierra Club witness acknowledged that there was "some controversy even among the oil company people as to which would be the most hazardous more smaller ships or fewer bigger ships." Id., at 81. This statement is consistent with the stipulation of facts, App. 84, which states:
"Experts differ and there is good faith dispute as to whether the movement of oil by a smaller number of tankers in excess of 125,000 DWT in Puget Sound poses an increased risk of oil spillage compared to the risk from movement of a similar amount of oil by a larger number of smaller tankers in Puget Sound."
28
We find no support for the appellants' position in the other federal environmental legislation they cite, i. e., the Federal Water Pollution Control Act Amendments of 1972, 86 Stat. 816, 33 U.S.C. § 1251 et seq. (1970 ed., Supp. V); the Coastal Zone Management Act of 1972, 86 Stat. 1280, 16 U.S.C. 1451 et seq. (1976 ed.); and the Deepwater Port Act of 1974, 88 Stat. 2126, 33 U.S.C. § 1501 et seq. (1970 ed., Supp. V). While those statutes contemplate cooperative state-federal regulatory efforts, they expressly state that intent, in contrast to the PWSA. Furthermore, none of them concerns the regulation of the design or size of oil tankers, an area in which there is a compelling need for uniformity of decisionmaking.
Appellees and the United States as amicus curiae urge that the Tanker Law's size limit also conflicts with the policy of the Merchant Marine Act, 1936, 49 Stat. 1985, as amended, 46 U.S.C. § 1101 et seq. (1970 ed. and Supp. V), and the tanker construction program established thereunder by the Maritime Administration in implementation of its duty under the Act to develop an adequate and well-balanced merchant fleet. Under this program the construction of tankers of various sizes is subsidized, including tankers far in excess of 125,000 DWT. The Maritime Administration has rejected suggestions that no subsidies be offered for the building of the larger tankers. There is some force to the argument, but we need not rely on it.
29
Although the District Court did not reach these additional grounds, the issues involved are legal questions, and the record seems sufficiently complete to warrant their resolution here without a remand to the District Court.
1
According to the record, no tanker currently afloat has all the design features prescribed by the Tanker Law. Neither Atlantic Richfield nor Seatrain has plans to modify any tankers currently in operation to satisfy the design standards, "because such retrofit is not economically feasible under current and anticipated market conditions." App. 67. Moreover, the vessels being constructed by Seatrain will not meet the majority of the design requirements, and, as the Court convincingly demonstrates, ante, at 173, n. 25, the Tanker Law is not likely to induce tanker owners to incorporate the specified design features into new tankers.
2
The relevant provision of Title I states:
"In order to prevent damage to, or the destruction or loss of any vessel, bridge, or other structure on or in the navigable waters of the Uni ed States, or any land structure or shore area immediately adjacent to those waters; and to protect the navigable waters and the resources therein from environmental harms resulting from vessel or structure damage, destruction, or loss, the Secretary of the department in which the Coast Guard is operating may—
* * * * *
"(3) control vessel traffic in areas which he determines to be especially hazardous, or under conditions of reduced visibility, adverse weather, vessel congestion, or other hazardous circumstances by—
* * * * *
"(iii) establishing vessel size and speed limitations and vessel operating conditions . . . ." 33 U.S.C. § 1221(3)(iii) (1970 ed., Supp. V).
3
The Rosario Strait "size limitation" is not contained in any written rule or regulation, and the record does not indicate how it came into existence. The only reference in the record is the following statement in the stipulation of facts:
"The Coast Guard prohibits the passage of more than one 70,000 DWT vessel through Rosario Strait in either direction at any given time. During periods of bad weather, the size limitation is reduced to approximately 40,000 DWT." App. 65.
The Puget Sound Vessel Traffic System, 33 CFR Part 161, Subpart B (1976), as amended, 42 Fed.Reg. 29480 (1977), does not contain any size limitation, and the necessity for such a limitation apparently was never considered during the rulemaking process. See 38 Fed.Reg. 21228 (1973) (notice of proposed rulemaking); 39 Fed.Reg. 25430 (1974 (summary of comments received during rulemaking).
4
Title I provides in relevant part:
"In determining the need for, and the substance of, any rule or regulation or the exercise of other authority hereunder the Secretary shall, among other things, consider—
* * * * *
"(6) existing vessel traffic control systems, services, and schemes; and
"(7) local practices and customs . . . ." 33 U.S.C. § 1222(e) (1970 ed., Supp. V).
5
The stipulation of facts does not specify when the size rule for Rosario Strait was established. The rule apparently was in force at the time the stipulation was entered, see n. 3, supra, but the Tanker Law had gone into effect prior to that time.
6
The Tanker Law contains the following statement of intent and purpose:
"Because of the danger of spills, the legislature finds that the transportation of crude oil and refined petroleum products by tankers on Puget Sound and adjacent waters creates a great potential hazard to important natural resources of the state and to jobs and incomes dependent on these resources.
"The legislature also recognizes Puget Sound and adjacent waters are a relatively confined salt water environment with irregular shorelines and therefore there is a greater than usual likelihood of long-term damage from any large oil spill.
"The legislature further recognizes that certain areas of Puget Sound and adjacent waters have limited space for maneuvering a large oil tanker and that these waters contain many natural navigational obstacles as well as a high density of commercial and pleasure boat traffic." Wash. Rev. Code § 88.16.170 (Supp.1975).
The natural navigational hazards in the Sound are compounded by fog, tidal currents, and wind conditions, in addition to the high density of vehicle traffic. App. 69.
Among the "areas . . . [with] limited space for maneuvering a large oil tanker," referred to by the Washington Legislature, is undoubtedly Rosario Strait. The Strait is less than one-half mile wide at its narrowest point, Exh. G, and portions of the shipping route through the Strait have a depth of only 60 feet. App. 65. (A 190,000-DWT tanker has a draft of approximately 61 feet, and a 120,000-DWT tanker has a draft of approximately 52 feet. Id., at 80.)
7
In addition to finding the Tanker Law's size limit to be inconsistent with the PWSA and federal actions thereunder, the Court suggests that "[t]here is some force to the argument" that the size limit conflicts with the tanker construction program established by the Maritime Administration pursuant to the Merchant Marine Act, 1936. Ante, at 179 n. 28. The Court does not rely on this argument, however, and it is totally lacking in factual basis. While it is true that construction of tankers larger than 125,000 DWT has been subsidized under the program, almost two-thirds of the tankers that have been or are being constructed have been smaller than 125,000 DWT, App. 60; of the remainder, the smallest
are 225,000 DWT vessels with drafts well in excess of 60 feet—too large to pass through osario Strait, see n. 6, supra, or dock at any of the refineries on Puget Sound (Atlantic Richfield's refinery at Cherry Point has a dockside depth of 55 feet; none of the other five refineries on Puget Sound has sufficient dockside depth even to accommodate tankers as large as 125,000 DWT. App. 47-48, 80).
Appellees advance one final argument for invalidating the 125,000 DWT size limit under the Supremacy Clause. Relying on the well-established proposition that federal enrollment and licensing of a vessel give it authority to engage in coastwise trade and to navigate in state waters, Douglas v. Seacoast Products, Inc., 431 U.S. 265, 276, 280-281, 97 S.Ct. 1740, 1747, 1749-1750 (1977); Gibbons v. Ogden, 9 Wheat. 1, 212-214, 5 L.Ed. 302 (1824), appellees assert that Washington may not exclude from any of its waters tankers that have been enrolled and licensed, or registered, pursuant to the federal vessel registration, enrollment, and licensing laws, 46 U.S.C. §§ 221, 251, 263. Even assuming that registration of a vessel carries with it the same privileges as enrollment and licensing, this argument ignores a proposition as well established as the one relied on by appellees: Notwithstanding the privileges conferred by the federal vessel license, "States may impose upon federal licensees reasonable, nondiscriminatory conservation and environmental protection measures otherwise within their police power." Douglas v. Seacoast Products, Inc., supra, 431 U.S. at 277, 97 S.Ct. at 1747; see, e. g., Huron Portland Cement Co. v. Detroit, 362 U.S. 440, 80 S.Ct. 813, 4 L.Ed.2d 852 (1960); Manchester v. Massachusetts, 139 U.S. 240, 11 S.Ct. 559, 35 L.Ed. 159 (1891); Smith v. Maryland, 18 How. 71, 15 L.Ed. 269 (1855). The Tanker Law's size limitation appears to be a reasonable environmental protection measure, see n. 8, infra, and it is imposed evenhandedly against both residents and nonresidents of the State.
8
The stipulation quoted by the Court, ante, at 176 n. 27, merely establishes that there is good-faith dispute as to whether exclusion of large tankers will in fact reduce the risk of oil spillage in Puget Sound. A showing that there is conflicting evidence is not sufficient to undercut the presumption that a State's police power has been exercised in a rational manner. See, e. g., Brotherhood of Locomotive Firemen & Enginemen v. Chicago, R. I. & P. R. Co., 393 U.S. 129, 138-139, 89 S.Ct. 323, 327-328, 21 L.Ed.2d 289 (1968).
9
Exclusion of tankers larger than 125,000 DWT has not resulted in any reduction in the amount of oil processed at the Puget Sound refineries. App. 68. Moreover, according to the record, use of a 120,000 DWT tanker rather than a 150,000 DWT tanker increases the cost of shipping oil from Valdez, Alaska, to Cherry Point by a mere $.02 to $.04 per barrel, id., at 64; and the re ord does not specify the relevant cost data for the Persian Gulf-Cherry Point route. Finally, appellees offered no concrete evidence of any significant disruption in their tanker operations, or of any decrease in the market value of the tankers that they own, as a result of the Tanker Law's provisions.
1
Washington Rev.Code § 88.16.190(2) (Supp.1975) reads as follows:
"(2) An oil tanker, whether enrolled or registered, of forty to one hundred and twenty-five thousand deadweight tons may proceed beyond the points enumerated in subsection (1) if such tanker possesses all of the following standard safety features:
"(a) Shaft horsepower in the ration of one horsepower to each two and one-half deadweight tons; and
"(b) Twin screws; and
"(c) Double bottoms, underneath all oil and liquid cargo compartments; and
"(d) Two radars in working order and operating, one of which must be collision avoidance radar; and
"(e) Such other navigational position location systems as may be prescribed from time to time by the board of pilotage commissioners:
"PROVIDED, That, if such forty to one hundred and twenty-five thousand deadweight ton tanker is in ballast or is under escort of a tug or tugs with an aggregate shaft horsepower equivalent to five percent of the deadweight tons of that tanker, subsection (2) of this section shall not apply:
PROVIDED further, That additional tug shaft horsepower equivalencies may be required under certain conditions as established by rule and regulation of the Washington utilities and transportation commission pursuant to chapter 34.04 RCW: PROVIDED further, That a tanker of less than forty thousand deadweight tons is not subject to the provisions of [this Act]."
2
The Court, ante, at 173, seems to characterize the tug-escort requirement as such a "general rule."
3
The possibility of States' enacting legislation similar to Washington's is not remote. Alaska has enacted legislation requiring payment of a "risk charge" by vessels that do not conform to state design requirements, Alaska Stat.Ann. § 30.20.010 et seq. (Sept. 1977), and California is considering comparable legislation. See Brief for State of California et al. as Amici Curiae, 3 n. 2.
4
No matter how small the cost in the individual case, the State's effort here to enforce its general determinations on vessel safety must be viewed as an "obstacle" to the attainment of Congress' objective of providing comprehensive standards for vessel design. See Hines v. Davidowitz, 312 U.S. 52, 67, 61 S.Ct. 399, 404, 85 L.Ed. 581. This does not mean that the State cannot adopt any general rules imposing tug-escort requirements, but it does mean that it cannot condition those requirements on safety determinations that are pre-empted by federal law, thus "impos[ing] additional burdens not contemplated by Congress." De Canas v. Bica, 424 U.S. 351, 358 n. 6, 96 S.Ct. 933, 938, 47 L.Ed.2d 43.
5
The validity of Washington's tug-escort provision may be short lived, despite today's opinion. The Secretary is now contemplating regulations in this area, and even the majority concedes that they may pre-empt the State's regulation. Ante, at 172. While this lessens the impact of the State's regulation and the threat it poses to the federal scheme, the legal issue is not affected by the imminence of agency action.
| 910
|
435 U.S. 191
98 S.Ct. 1011
55 L.Ed.2d 209
Mark David OLIPHANT and Daniel B. Belgarde, Petitioners,v.The SUQUAMISH INDIAN TRIBE et al.
No. 76-5729.
Argued Jan. 9, 1978.
Decided March 6, 1978.*
Syllabus by the Court
Indian tribal courts do not have inherent criminal jurisdiction to try and to punish non-Indians, and hence may not assume such jurisdiction unless specifically authorized to do so by Congress. Pp. 195-212.
(a) From the earliest treaties with Indian tribes, it was assumed that the tribes, few of which maintained any semblance of a formal court system, did not have such jurisdiction absent a congressional statute or treaty provision to that effect, and at least one court held that such jurisdiction did not exist. Pp. 196-201.
(b) Congress' actions during the 19th century reflected that body's belief that Indian tribes do not have inherent criminal jurisdiction over non-Indians. Pp. 201-206.
(c) The presumption, commonly shared by Congress, the Executive Branch, and lower federal courts, that tribal courts have no power to try non-Indians, carries considerable weight. P. 206.
(d) By submitting to the overriding sovereignty of the United States, Indian tribes necessarily yield the power to try non-Indians except in a manner acceptable to Congress, a fact which seems to be recognized by the Treaty of Point Elliott, signed by the Suquamish Indian Tribe. Pp. 206-211.
544 F.2d 1007 (Oliphant judgment), and Belgarde judgment, reversed.
Philip P. Malone, Poulsbo, Wash., for the petitioners.
Slade Gorton, Atty. Gen., Olympia, Wash., for the State of Washington, as amicus curiae, by special leave of Court.
Barry D. Ernstoff, Seattle, Wash., for respondents.
H. Bartow Farr, III, for the United States, as amicus curiae, by special leave of Court.
Mr. Justice REHNQUIST delivered the opinion of the Court.
1
Two hundred years ago, the area bordering Puget Sound consisted of a large number of politically autonomous Indian villages, each occupied by from a few dozen to over 100 Indians. These loosely related villages were aggregated into a series of Indian tribes, one of which, the Suquamish, has become the focal point of this litigation. By the 1855 Treaty of Point Elliott, 12 Stat. 927, the Suquamish Indian Tribe relinquished all rights that it might have had in the lands of the State of Washington and agreed to settle on a 7,276-acre reservation near Port Madison, Wash. Located on Puget Sound across from the city of Seattle, the Port Madison Reservation is a checkerboard of tribal community land, allotted Indian lands, property held in fee simple by non-Indians, and various roads and public highways maintained by Kitsap County.1
2
The Suquamish Indians are governed by a tribal government which in 1973 adopted a Law and Order Code. The Code, which covers a variety of offenses from theft to rape, purports to extend the Tribe's criminal jurisdiction over both Indians and non-Indians.2 Proceedings are held in the Suquamish Indian Provisional Court. Pursuant to the Indian Civil Rights Act of 1968, 82 Stat. 77, 25 U.S.C. § 1302, defendants are entitled to many of the due process protections accorded to defendants in federal or state criminal proceedings.3 However, the guarantees are not identical. Non-Indians, for example, are excluded from Suquamish tribal court juries.4
3
Both petitioners are non-Indian residents of the Port Madison Reservation. Petitioner Mark David Oliphant was arrested by tribal authorities during the Suquamish's annual Chief Seattle Days celebration and charged with assaulting a tribal officer and resisting arrest. After arraignment before the tribal court, Oliphant was released on his own recognizance. Petitioner Daniel B. Belgarde was arrested by tribal authorities after an alleged high-speed race along the Reservation highways that only ended when Belgarde collided with a tribal police vehicle. Belgarde posted bail and was released. Six days later he was arraigned and charged under the tribal Code with "recklessly endangering another person" and injuring tribal property. Tribal court proceedings against both petitioners have been stayed pending a decision in this case.
4
Both petitioners applied for a writ of habeas corpus to the United States District Court for the Western District of Washington. Petitioners argued that the Suquamish Indian Provisional Court does not have criminal jurisdiction over non-Indians. In separate proceedings, the District Court disagreed with petitioners' argument and denied the petitions. On August 24, 1976, the Court of Appeals for the Ninth Circuit affirmed the denial of habeas corpus in the case of petitioner Oliphant. Oliphant v. Schlie, 544 F.2d 1007. Petitioner Belgarde's appeal is still pending before the Court of Appeals.5 We granted certiorari, 431 U.S. 964, 97 S.Ct. 2919, 53 L.Ed.2d 1059, to decide whether Indian tribal courts have criminal jurisdiction over non-Indians. We decide that they do not.
5
* Respondents do not contend that their exercise of criminal jurisdiction over non-Indians stems from affirmative congressional authorization or treaty provision.6 Instead, respondents urge that such jurisdiction flows automatically from the "Tribe's retained inherent powers of government over the Port Madison Indian Reservation." Seizing on language in our opinions describing Indian tribes as "quasi-sovereign entities," see, e. g., Morton v. Mancari, 417 U.S. 535, 554, 94 S.Ct. 2474, 2484, 41 L.Ed.2d 290 (1974), the Court of Appeals agreed and held that Indian tribes, "though conquered and dependent, retain those powers of autonomous states that are neither inconsistent with their status nor expressly terminated by Congress." According to the Court of Appeals, criminal jurisdiction over anyone committing an offense on the reservation is a "sine qua non" of such powers.
6
The Suquamish Indian Tribe does not stand alone today in its assumption of criminal jurisdiction over non-Indians. Of the 127 reservation court systems that currently exercise criminal jurisdiction in the United States, 33 purport to extend that jurisdiction to non-Indians.7 Twelve other Indian tribes have enacted ordinances which would permit the assumption of criminal jurisdiction over non-Indians. Like the Suquamish these tribes claim authority to try non-Indians not on the basis of congressional statute or treaty provision but by reason of their retained national sovereignty.
7
The effort by Indian tribal courts to exercise criminal jurisdiction over non-Indians, however, is a relatively new phenomenon. And where the effort has been made in the past, it has been held that the jurisdiction did not exist. Until the middle of this century, few Indian tribes maintained any semblance of a formal court system. Offenses by one Indian against another were usually handled by social and religious pressure and not by formal judicial processes; emphasis was on restitution rather than on punishment. In 1834 the Commissioner of Indian Affairs described the then status of Indian criminal systems: "With the exception of two or three tribes, who have within a few years past attempted to establish some few laws and regulations among themselves, the Indian tribes are without laws, and the chiefs without much authority to exercise any restraint." H.R.Rep. No. 474, 23d Cong., 1st Sess., 91 (1834).
8
It is therefore not surprising to find no specific discussion of the problem before us in the volumes of the United States Reports. But the problem did not lie entirely dormant for two centuries. A few tribes during the 19th century did have formal criminal systems. From the earliest treaties with these tribes, it was apparently assumed that the tribes did not have criminal jurisdiction over non-Indians absent a congressional statute or treaty provision to that effect. For example, the 1830 T eaty with the Choctaw Indian Tribe, which had one of the most sophisticated of tribal structures, guaranteed to the Tribe "the jurisdiction and government of all the persons and property that may be within their limits." Despite the broad terms of this governmental guarantee, however, the Choctaws at the conclusion of this treaty provision "express a wish that Congress may grant to the Choctaws the right of punishing by their own laws any white man who shall come into their nation, and infringe any of their national regulations."8 Art. 4, 7 Stat. 333 (emphasis added). Such a request for affirmative congressional authority is inconsistent with respondents' belief that criminal jurisdiction over non-Indians is inherent in tribal sovereignty. Faced by attempts of the Choctaw Tribe to try non-Indian offenders in the early 1800's the United States Attorneys General also concluded that the Choctaws did not have criminal jurisdiction over non-Indians absent congressional authority. See 2 Op.Atty.Gen. 693 (1834); 7 Op.Atty.Gen. 174 (1855). According to the Attorney General in 1834, tribal criminal jurisdiction over non-Indians, is inter alia, inconsistent with treaty provisions recognizing the sovereignty of the United States over the territory assigned to the Indian nation and the dependence of the Indians on the United States.
9
At least one court has previously considered the power of Indian courts to try non-Indians and it also held against jurisdiction.9 In Ex parte Kenyon, 14 Fed.Cas. page 353, No. 7,720 (W.D.Ark.1878), Judge Isaac C. Parker, who as District Court Judge for the Western District of Arkansas was constantly exposed to the legal relationships between Indians and non-Indians,10 held that to give an Indian tribal court "jurisdiction of the person of an offender, such offender must be an Indian." Id., at 355. The conclusion of Judge Parker was reaffirmed only recently in a 1970 opinion of the Solicitor of the Department of the Interior. See Criminal Jurisdiction of Indian Tribes over Non-Indians, 77 I.D. 113.11
10
While Congress was concerned almost from its beginning with the special problems of law enforcement on the Indian reservations, it did not initially address itself to the problem of tribal jurisdiction over non-Indians. For the reasons previously stated, there was little reason to be concerned with assertions of tribal court jurisdiction over non-Indians because of the absence of formal tribal judicial systems. Instead, Congress' concern was with providing effective protection for the Indians "from the violences of the lawless part of our frontier inhabitants." Seventh Annual Address of President George Washington, 1 Messages and Papers of the Presidents, 1789-1897, pp. 181, 185 (J. Richardson, ed., 1897). Without such protection, it was felt that "all the exertions of the Government to prevent destructive retaliations by the Indians will prove fruitless and all our present agreeable prospects illusory." Ibid. Beginning with the Trade and Intercourse Act of 1790, 1 Stat. 137, therefore, Congress assumed federal jurisdiction over offenses by non-Indians against Indians which "would be punishable by the laws of [the] state or district . . . if the offense had been committed against a citizen or white inhabitant thereof." In 1817, Congress went one step further and extended federal enclave law to the Indian country; the only exception was for "any offence committed by one Indian against another." 3 Stat. 383, now codified, as amended, 18 U.S.C. § 1152.
11
It was in 1834 that Congress was first directly faced with the prospect of Indians trying non-Indians. In the Western Territory bill,12 Congress proposed to create an Indian territory beyond the western-directed destination of the settlers; the territory was to be governed by a confederation of Indian tribes and was expected ultimately to become a State of the Union. While the bill would have created a political territory with broad governing powers, Congress was careful not to give the tribes of the territory criminal jurisdiction over United States officials and citizens traveling through the area.13 The reasons were quite practical:
12
"Officers, and persons in the service of the United States, and persons required to reside in the Indian country by treaty stipulations, must necessarily be placed under the protection, and subject to the laws of the United States. To persons merely travelling in the Indian country the same protection is extended. The want of fixed laws, of competent tribunals of justice, which must for some time continue in the Indian country, absolutely requires for the peace of both sides that this protection should be extended." H.R.Rep. No. 474, 23d Cong., 1st Sess., 18 (1834).
13
Congress' concern over criminal jurisdiction in this proposed Indian Territory contrasts markedly with its total failure to address criminal jurisdiction over non-Indians on other reservations, which frequently bordered non-Indian settlements. The contrast suggests that Congress shared the view of the Executive Branch and lower federal courts that Indian tribal courts were without jurisdiction to try non-Indians.
14
This unspoken assumption was also evident in other congressional actions during the 19th century. In 1854, for example, Congress amended the Trade and Intercourse Act to proscribe the prosecution in federal court of an Indian who has already been tried in tribal court. § 3, 10 Stat. 270, now codified, as amended, 18 U.S.C. § 1152. No similar provision, such as would have been required by parallel logic if tribal courts had jurisdiction over non-Indians, was enacted barring retrial of non-Indians. Similarly, in the Major Crimes Act of 1885, Congress placed under the jurisdiction of federal courts Indian offenders who commit certain specified major offenses. Act of Mar. 3, 1885, § 9, 23 Stat. 385, now codified, as amended, 18 U.S.C. § 1153. If tribal courts may try non-Indians, however, as respondents contend, those tribal courts are free to try non-Indians even for such major offenses as Congress may well have given the federal courts exclusive jurisdiction to try members of their own tribe committing the exact same offenses.14
15
In 1891, this Court recognized that Congress' various actions and inactions in regulating criminal jurisdiction on Indian reservations demonstrated an intent to reserve jurisdiction over non-Indians for the federal courts. In In re Mayfield, 141 U.S. 107, 115-116, 11 S.Ct. 939, 941, 35 L.Ed. 635 (1891), the Court noted that the policy of Congress had been to allow the inhabitants of the Indian country "such power of self-government as was thought to be consistent with the safety of the white population with which they may have come in contact, and to encourage them as far as possible in raising themselves to our standard of civilization." The "general object" of the congressional statutes was to allow Indian nations criminal "jurisdiction of all controversies between Indians, or where a member of the nation is the only party to the proceeding, and to reserve to the courts of the United States jurisdiction of all actions to which its own citizens are parties on either side." Ibid. While Congress never expressly forbade Indian tribes to impose criminal penalties on non-Indians, we now make express our implicit conclusion of nearly a century ago that Congress consistently believed this to be the necessary result of its repeated legislative actions.
16
In a 1960 Senate Report, that body expressly confirmed its assumption that Indian tribal courts are without inherent jurisdiction to try non-Indians, and must depend on the Federal Government for protection from intruders.15 In considering a statute that would prohibit unauthorized entry upon Indian land for the purpose of hunting or fishing, the Senate Report noted:
17
"The problem confronting Indian tribes with sizable reservations is that the United States provides no protection against trespassers comparable to the protection it gives to Federal property as exemplified by title 18, United States Code, section 1863 [trespass on national forest lands]. Indian property owners should have the same protection as other property owners. For example, a private hunting club may keep nonmembers off its game lands or it may issue a permit for a fee. One who comes on such lands without permission may be prosecuted under State law but a non-Indian trespasser on an Indian reservation enjoys immunity. This is by reason of the fact that Indian tribal law is enforcible against Indians only; not against non-Indians.
18
* * * * *
19
"Non-Indians are not subject to the jurisdiction of Indian courts and cannot be tried in Indian courts on trespass charges. Further, there are no Federal laws which can be invoked against trespassers.
20
* * * * *
21
"The committee has considered this bill and believes that the legislation is meritorious. The legislation will give to the Indian tribes and to individual Indian owners certain rights that now exist as to others, and fills a gap in the present law for the protection of their property." S.Rep. No. 1686, 86th Cong., 2d Sess., 2-3 (1960) (emphasis added).
II
22
While not conclusive on the issue before us, the commonly shared presumption of Congress, the Executive Branch, and lower federal courts that tribal courts do not have the power to try non-Indians carries considerable weight. Cf. Draper v. United States, 164 U.S. 240, 245-247, 17 S.Ct. 107, 108-109, 41 L.Ed. 419 (1896); Morris v. Hitchcock, 194 U.S. 384, 391-393, 24 S.Ct. 712, 715, 48 L.Ed. 1030 (1904); Warren Trading Post Co. v. Arizona Tax Comm'n, 380 U.S. 685, 690, 85 S.Ct. 1242, 1245, 14 L.Ed.2d 165 (1965); DeCoteau v. District County Court, 420 U.S. 425, 444-445, 95 S.Ct. 1082, 1092-1093, 43 L.Ed.2d 300 (1965). "Indian law" draws principally upon the treaties drawn and executed by the Executive Branch and legislation passed by Congress. These instruments, which beyond their actual text form the backdrop for the intricate web of judicially made Indian law, cannot be interpreted in isolation but must be read in light of the common notions of the day and the assumptions of those who drafted them. Ibid.
23
While in isolation the Treaty of Point Elliott, 12 Stat. 927 (1855), would appear to be silent as to tribal criminal jurisdiction over non-Indians, the addition of historical perspective casts substantial doubt upon the existence of such jurisdiction.16 In the Ninth Article, for example, the Suquamish "acknowledge their dependence on the government of the United States." As Mr. Chief Justice Marshall explained in Worcester v. Georgia, 6 Pet. 515, 551-552, 554, 8 L.Ed. 483 (1832), such an acknowledgment is not a mere abstract recognition of the United States' sovereignty. "The Indian nations were, from their situation, necessarily dependent on [the United States] . . . for their protection from lawless and injurious intrusions into their country." Id., at 555. By acknowledging their dependence on the United States, in the Treaty of Point Elliott, the Suquamish were in all probability recognizing that the United States would arrest and try non-Indian intruders who came within their Reservation. Other provisions of the Treaty also point to the absence of tribal jurisdiction. Thus the Tribe "agree[s] not to shelter or conceal offenders against the laws of the United States, but to deliver them up to the authorities for trial." Read in conjunction with 18 U.S.C. § 1152, which extends federal enclave law to non-Indian offenses on Indian reservations, this provision implies that the Suquamish are to promptly deliver up any non-Indian offender, rather than try and punish him themselves.17
24
By themselves, these treaty provisions would probably not be sufficient to remove criminal jurisdiction over non-Indians if the Tribe otherwise retained such jurisdiction. But an examination of our earlier precedents satisfies us that, even ignoring treaty provisions and congressional policy, Indians do not have criminal jurisdiction over non-Indians absent affirmative delegation of such power by Congress. Indian tribes do retain elements of "quasi-sovereign" authority after ceding their lands to the United States and announcing their dependence on the Federal Government. See Cherokee Nation v. Georgia, 5 Pet. 1, 15, 8 L.Ed. 25 (1831). But the tribes' retained powers are not such that they are limited only by specific restrictions in treaties or congressional enactments. As the Court of Appeals recognized Indian tribes are prohibited from exercising both those powers of autonomous states that are expressly terminated by Congress and those powers "inconsistent with their status." Oliphant v. Schlie, 544 F.2d, at 1009 (emphasis added).
25
Indian reservations are "a part of the territory of the United States." United States v. Rogers, 4 How. 567, 571, 11 L.Ed. 1105 (1846). Indian tribes "hold and occupy [the reservations] with the assent of the United States, and under their authority." Id., at 572. Upon incorporation into the territory of the United States, the Indian tribes thereby come under the territorial sovereignty of the United States and their exercise of separate power is constrained so as not to conflict with the interests of this overriding sovereignty. "[T]heir rights to complete sovereignty, as independent nations, [are] necessarily diminished." Johnson v. M'Intosh, 8 Wheat. 543, 574, 5 L.Ed. 681 (1823).
26
We have already described some of the inherent limitations on tribal powers that stem from their incorporation into the United States. In Johnson v. M'Intosh, supra, we noted that the Indian tribes' "power to dis ose of the soil at their own will, to whomsoever they pleased," was inherently lost to the overriding sovereignty of the United States. And in Cherokee Nation v. Georgia, supra, the Chief Justice observed that since Indian tribes are "completely under the sovereignty and dominion of the United States, . . . any attempt [by foreign nations] to acquire their lands, or to form a political connexion with them, would be considered by all as an invasion of our territory, and an act of hostility." 5 Pet., at 17-18.
27
Nor are the intrinsic limitations on Indian tribal authority restricted to limitations on the tribes' power to transfer lands or exercise external political sovereignty. In the first case to reach this Court dealing with the status of Indian tribes, Mr. Justice Johnson in a separate concurrence summarized the nature of the limitations inherently flowing from the overriding sovereignty of the United States as follows: "[T]he restrictions upon the right of soil in the Indians, amount . . . to an exclusion of all competitors [to the United States] from their markets; and the limitation upon their sovereignty amounts to the right of governing every person within their limits except themselves." Fletcher v. Peck, 6 Cranch 87, 147, 3 L.Ed. 162 (1810) (emphasis added). Protection of territory within its external political boundaries is, of course, as central to the sovereign interests of the United States as it is to any other sovereign nation. But from the formation of the Union and the adoption of the Bill of Rights, the United States has manifested an equally great solicitude that its citizens be protected by the United States from unwarranted intrusions on their personal liberty. The power of the United States to try and criminally punish is an important manifestation of the power to restrict personal liberty. By submitting to the overriding sovereignty of the United States, Indian tribes therefore necessarily give up their power to try non-Indian citizens of the United States except in a manner acceptable to Congress. This principle would have been obvious a century ago when most Indian tribes were characterized by a "want of fixed laws [and] of competent tribunals of justice." H.R.Rep. No. 474, 23d Cong., 1st Sess., 18 (1834). It should be no less obvious today, even though present-day Indian tribal courts embody dramatic advances over their historical antecedents.
28
In Ex parte Crow Dog, 109 U.S. 556, 3 S.Ct. 396, 27 L.Ed. 1030 (1883), the Court was faced with almost the inverse of the issue before us here—whether, prior to the passage of the Major Crimes Act, federal courts had jurisdiction to try Indians who had offended against fellow Indians on reservation land. In concluding that criminal jurisdiction was exclusively in the tribe, it found particular guidance in the "nature and circumstances of the case." The United States was seeking to extend United States
29
"law, by argument and inference only, . . . over aliens and strangers; over the members of a community separated by race [and] tradition, . . . from the authority and power which seeks to impose upon them the restraints of an external and unknown code . . .; which judges them by a standard made by others and not for them . . . . It tries them, not by their peers, nor by the customs of their people, nor the law of their land, but by . . . a different race, according to the law of a social state of which they have an imperfect conception . . . ." Id., at 571, 3 S.Ct., at 406.
30
These considerations, applied here to the non-Indian rather than Indian offender, speak equally strongly against the validity of respondents' contention that Indian tribes, although fully subordinated to the sovereignty of the United States, retain the power to try non-Indians according to their own customs and procedure.
31
As previously noted, Congress extended the jurisdiction of federal courts, in the Trad and Intercourse Act of 1790, to offenses committed by non-Indians against Indians within Indian Country. In doing so, Congress was careful to extend to the non-Indian offender the basic criminal rights that would attach in non-Indian related cases. Under respondents' theory, however, Indian tribes would have been free to try the same non-Indians without these careful proceedings unless Congress affirmatively legislated to the contrary. Such an exercise of jurisdiction over non-Indian citizens of the United States would belie the tribes' forfeiture of full sovereignty in return for the protection of the United States.
32
In summary, respondents' position ignores that
33
"Indians are within the geographical limits of the United States. The soil and people within these limits are under the political control of the Government of the United States, or of the States of the Union. There exists in the broad domain of sovereignty but these two. There may be cities, counties, and other organized bodies with limited legislative functions, but they . . . exist in subordination to one or the other of these." United States v. Kagama, 118 U.S. 375, 379, 6 S.Ct. 1109, 1111, 30 L.Ed. 228 (1886).
34
We recognize that some Indian tribal court systems have become increasingly sophisticated and resemble in many respects their state counterparts. We also acknowledge that with the passage of the Indian Civil Rights Act of 1968, which extends certain basic procedural rights to anyone tried in Indian tribal court, many of the dangers that might have accompanied the exercise by tribal courts of criminal jurisdiction over non-Indians only a few decades ago have disappeared. Finally, we are not unaware of the prevalence of non-Indian crime on today's reservations which the tribes forcefully argue requires the ability to try non-Indians.18 But these are considerations for Congress to weigh in deciding whether Indian tribes should finally be authorized to try non-Indians. They have little relevance to the principles which lead us to conclude that Indian tribes do not have inherent jurisdiction to try and to punish non-Indians. The judgments below are therefore
35
Reversed.
36
Mr. Justice BRENNAN took no part in the consideration or decision of this case.
37
Mr. Justice MARSHALL, with whom THE CHIEF JUSTICE joins, dissenting.
38
I agree with the court below that the "power to preserve order on the reservation . . . is a sine qua non of the sovereignty that the Suquamish originally possessed." Oliphant v. Schlie, 544 F.2d 1007, 1009 (CA9 1976). In the absence of affirmative withdrawal by treaty or statute, I am of the view that Indian tribes enjoy as a necessary aspect of their retained sovereignty the right to try and punish all persons who commit offenses against tribal law within the reservation. Accordingly, I dissent.
*
Together with Belgarde v. Suquamish Indian Tribe et al., on certiorari before judgment to the same court (see this Court's Rule 23(5)).
1
According to the District Court's findings of fact "[The] Madison Indian Reservation consists of approximately 7276 acres of which approximately 63% thereof is owned in fee simple absolute by non-Indians and the remainder 37% is Indian-owned lands subject to the trust status of the United States, consisting mostly of unimproved acreage upon which no persons reside. Residing on the reservation is an estimated population of approximately 2928 non-Indians living in 976 dwelling units. There lives on the reservation approximately 50 members of the Suquamish Indian Tribe. Within the reservation are numerous public highways of the State of Washington, public schools, public utilities and other facilities in which neither the Suquamish Indian Tribe nor the United States has any ownership or interest." App. 75.
The Suquamish Indian Tribe, unlike many other Indian tribes, did not consent to non-Indian homesteading of unallotted or "surplus" lands within their reservation pursuant to 25 U.S.C. § 348 and 43 U.S.C. §§ 1195-1197. Instead, the substantial non-Indian population on the Port Madison Reservation is primarily the result of the sale of Indian allotments to non-Indians by the Secretary of the Interior. Congressional legislation has allowed such sales where the allotments were in heirship, fell to "incompetents," or were surrendered in lieu of other selections. The substantial non-Indian landholdings on the Reservation are also a result of the lifting of various trust restrictions, a factor which has enabled individual Indians to sell their allotments. See 25 U.S.C. §§ 349, 392.
2
Notices were placed in prominent places at the entrances to the Port Madison Reservation informing the public that entry onto the Reservation would be deemed implied consent to the criminal jurisdiction f the Suquamish tribal court.
3
In Talton v. Mayes, 163 U.S. 376 16 S.Ct. 986, 41 L.Ed. 196 (1896), this Court held that the Bill of Rights in the Federal Constitution does not apply to Indian tribal governments.
4
The Indian Civil Rights Act of 1968 provides for "a trial by jury of not less than six persons," 25 U.S.C. § 1302(10), but the tribal court is not explicitly prohibited from excluding non-Indians from the jury even where a non-Indian is being tried. In 1977, the Suquamish Tribe amended its Law and Order Code to provide that only Suquamish tribal members shall serve as jurors in tribal court.
5
Belgarde's petition for certiorari was granted while his appeal was still pending before the Court of Appeals for the Ninth Circuit. No further proceedings in that court have been held pending our decision.
6
Respondents do contend that Congress has "confirmed" the power of Indian tribes to try and to punish non-Indians through the Indian Reorganization Act of 1934, 48 Stat. 987, 25 U.S.C. § 476, and the Indian Civil Rights Act of 1968, 25 U.S.C. § 1302. Neither Act, however, addresses, let alone "confirms," tribal criminal jurisdiction over non-Indians. The Indian Reorganization Act merely gives each Indian Tribe the right "to organize for its common welfare" and to "adopt an appropriate constitution and bylaws." With certain specific additions not relevant here, the tribal council is to have such powers as are vested "by existi g law." The Indian Civil Rights Act merely extends to "any person" within the tribe's jurisdiction certain enumerated guarantees of the Bill of Rights of the Federal Constitution.
As respondents note, an early version of the Indian Civil Rights Act extended its guarantees only to "American Indians," rather than to "any person." The purpose of the later modification was to extend the Act's guarantees to "all persons who may be subject to the jurisdiction of tribal governments, whether Indians or non-Indians." Summary Report on the Constitutional Rights of American Indians, Subcommittee on Constitutional Rights of the Senate Committee on the Judiciary, 89th Cong., 2d Sess., 10 (1966). But this change was certainly not intended to give Indian tribes criminal jurisdiction over non-Indians. Nor can it be read to "confirm" respondents' argument that Indian tribes have inherent criminal jurisdiction over non-Indians. Instead, the modification merely demonstrates Congress' desire to extend the Act's guarantees to non-Indians if and where they come under a tribe's criminal or civil jurisdiction by either treaty provision or Act of Congress.
7
Of the 127 courts currently operating on Indian reservations, 71 (including the Suquamish Indian Provisional Court) are tribal courts, established and functioning pursuant to tribal legislative powers; 30 are "CFR Courts" operating under the Code of Federal Regulations, 25 CFR § 11.1 et seq. (1977); 16 are traditional courts of the New Mexico pueblos; and 10 are conservation courts. The CFR Courts are the offspring of the Courts of Indian Offenses, first provided for in the Indian Department Appropriations Act of 1888, 25 Stat. 217, 233. See W. Hagan, Indian Police and Judges (1966). By regulations issued in 1935, the jurisdiction of CFR Courts is restricted to offenses committed by Indians within the reservation. 25 CFR § 11.2(a)(1977). The case before us is concerned only with the criminal jurisdiction of tribal courts.
8
The history of Indian treaties in the United States is consistent with the principle that Indian tribes may not assume criminal jurisdiction
over non-Indians without the permission of Congress. The earliest treaties typically expressly provided that "any citizen of the United States, who shall do an injury to any Indian of the [tribal] nation, or to any other Indian or Indians residing in their towns, and under their protection, shall be punished according to the laws of the United States." See, e. g., Treaty with the Shawnees, Art. III, 7 Stat. 26 (1786). While, as elaborated further below, these provisions were not necessary to remove criminal jurisdiction over non-Indians from the Indian tribes, they would naturally have served an important function in the developing stage of United States-Indian relations by clarifying jurisdictional limits of the Indian tribes. The same treaties generally provided that "[i]f any citizen of the United States . . . shall attempt to settle on any of the lands hereby allotted to the Indians to live and hunt on, such person shall forfeit the protection of the United States of America, and the Indians may punish him or not as they please." See, e. g., Treaty with the Choctaws, Art. IV, 7 Stat. 22 (1786). Far from representing a recognition of any inherent Indian criminal jurisdiction over non-Indians settling on tribal lands, these provisions were instead intended as a means of discouraging non-Indian settlements on Indian territory, in contravention of treaty provisions to the contrary. See 5 Annals of Cong. 903-904 (1796). Later treaties dropped this provision and provided instead that non-Indian settlers would be removed by the United States upon complaint being lodged by the tribe. See, e. g., Treaty with the Sacs and Foxes, 7 Stat. 84 (1804).
As the relationship between Indian tribes and the United States developed through the passage of time, specific provisions for the punishment of non-Indians by the United States, rather than by the tribes, slowly disappeared from the treaties. Thus, for example, none of the treaties signed by Washington Indians in the 1850's explicitly proscribed criminal prosecution and punishment of non-Indians by the Indian tribes. As discussed below, however, several of the treaty provisions can be read as recognizing that criminal jurisdiction over non-Indians would be in the United States rather than in the tribes. The disappearance of provisions explicitly providing for the punishment of non-Indians by the United States, rather than by the Indian tribes, coincides with and is at least partly explained by the extension f federal enclave law over non-Indians in the Trade and Intercourse Acts and the general recognition by Attorneys General and lower federal courts that Indians did not have jurisdiction to try non-Indians. See infra, at 198-201. When it was felt necessary to expressly spell out respective jurisdictions, later treaties still provided that criminal jurisdiction over non-Indians would be in the United States. See, e. g., Treaty with the Utah-Tabeguache Band, Art. 6, 13 Stat. 674 (1863).
Only one treaty signed by the United States has ever provided for any form of tribal criminal jurisdiction over non-Indians (other than in the illegal-settler context noted above). The first treaty signed by the United States with an Indian tribe, the 1778 Treaty with the Delawares, provided that neither party to the treaty could "proceed to the infliction of punishments on the citizens of the other, otherwise than by securing the offender or offenders by imprisonment, or any other competent means, till a fair and impartial trial can be had by judges or juries of both parties, as near as can be to the laws, customs and usages of the contracting parties and natural justice: The mode of such tryals to be hereafter fixed by the wise men of the United States in Congress assembled, with the assistance of . . . deputies of the Delaware nation . . . ." Treaty with the Delawares, Art. IV, 7 Stat. 14 (emphasis added). While providing for Delaware participation in the trial of non-Indians, this treaty section established that non-Indians could only be tried under the auspices of the United States and in a manner fixed by the Continental Congress.
9
According to Felix Cohen's Handbook of Federal Indian Law 148 (U.S. Dept. of the Interior 1941) "attempts of tribes to exercise jurisdiction over non-Indians . . . have been generally condemned by the federal courts since the end of the treaty-making period, and the writ of habeas corpus has been used to discharge white defendants from tribal custody."
10
Judge Parker sat as the judge of the United States District Court for the Western District of Arkansas from 1875 until 1896. By reason of the laws of Congress in effect at the time, that particular court not only handled the normal docket of federal cases arising in the Western District of Arkansas, but also had criminal jurisdiction over what was then called the "Indian Territory." This area varied in size during Parker's tenure; at one time it extended as far west as the eastern border of Colorado, and always included substantial parts of what would later become the State of Oklahoma. In the exercise of this jurisdiction over the Indian Territory, the Court in which he sat was necessarily in constant contact with individual Indians, the tribes of which they were members, and the white men who dealt with them and often preyed upon them.
Judge Parker's views of the law were not always upheld by this Court. See 2 J. Wigmore, Evidence § 276, pp. 115-116, n. 3 (3d ed. 1940). A reading of Wigmore, however, indicates that he was as critical of the decisions of this Court there mentioned as this Court was of the evidentiary rulings of Judge Parker. Nothing in these long forgotten disputes detracts from the uni ersal esteem in which the Indian tribes which were subject to the jurisdiction of his court held Judge Parker. One of his biographers, describing the judge's funeral, states that after the grave was filled "[t]he principal chief of the Choctaws, Pleasant Porter, came forward and placed a wreath of wild flowers on the grave." H. Croy, He Hanged Them High 222 (1952).
It may be that Judge Parker's views as to the ultimate destiny of the Indian people are not in accord with current thinking on the subject, but we have observed in more than one of our cases that the views of the people on this issue as reflected in the judgments of Congress itself have changed from one era to the next. See Kake Village v. Egan, 369 U.S. 60, 71-74, 82 S.Ct. 562, 568-570, 7 L.Ed.2d 573 (1962). There cannot be the slightest doubt that Judge Parker was, by his own lights and by the lights of the time in which he lived, a judge who was thoroughly acquainted with and sympathetic to the Indians and Indian tribes which were subject to the jurisdiction of his court, as well as familiar with the law which governed them. See generally Hell on the Border (1971, J. Gregory & R. Strickland, eds.).
11
The 1970 opinion of the Solicitor was withdrawn in 1974 but has not been replaced. No reason was given for the withdrawal.
12
See H.R.Rep. No. 474, 23d Cong., 1st Sess., 36 (1834).
13
The Western Territory bill, like the early Indian treaties, see n. 6, supra, did not extend the protection of the United States to non-Indians who settled without Government business in Indian territory. See Western Territory bill, § 6, in H.R.Rep. No. 474, supra, at 35; id., at 18. This exception, like that in the early treaties, was presumably meant to discourage settlement on land that was reserved exclusively for the use of the various Indian tribes. Today, many reservations, including the P rt Madison Reservation, have extensive non-Indian populations. The percentage of non-Indian residents grew as a direct and intended result of congressional policies in the late 19th and early 20th centuries promoting the assimilation of the Indians into the non-Indian culture. Respondents point to no statute, in comparison to the Western Territory bill, where Congress has intended to give Indian tribes jurisdiction today over non-Indians residing within reservations.
Even as drafted, many Congressmen felt that the bill was too radical a shift in United States-Indian relations and the bill was tabled. See 10 Cong.Deb. 4779 (1834). While the Western Territory bill was resubmitted several times in revised form, it was never passed. See generally R. Gittinger, The Formation of the State of Oklahoma (1939).
14
The Major Crimes Act provides that Indians committing any of the enumerated offenses "shall be subject to the same laws and penalties as all other persons committing any of the above offenses, within the exclusive jurisdiction of the United States." (Emphasis added.) While the question has never been directly addressed by this Court, Courts of Appeals have read this language to exclude tribal jurisdiction over the Indian offender. See, e. g., Sam v. United States, 385 F.2d 213, 214 (CA10 1967); Felicia v. United States, 495 F.2d 353, 354 (CA8 1974). We have no reason to decide today whether jurisdiction under the Major Crimes Act is exclusive.
The legislative history of the original version of the Major Crimes Act, which was introduced as a House amendment to the Indian Appropriation Act of 1855, creates some confusion on the question of exclusive jurisdiction. As originally worded, the amendment would have provided for trial in the United States courts "and not otherwise." Apparently at the suggestion of Congressman Budd, who believed that concurrent jurisdiction in the courts of the United States was suff cient, the words "and not otherwise" were deleted when the amendment was later reintroduced. See 16 Cong.Rec. 934-935 (1885). However, as finally accepted by the Senate and passed by both Houses, the amendment did provide that the Indian offender would be punished as any other offender, "within the exclusive jurisdiction of the United States." The issue of exclusive jurisdiction over major crimes was mooted for all practical purposes by the passage of the Indian Civil Rights Act of 1968 which limits the punishment that can be imposed by Indian tribal courts to a term of 6 months or a fine of $500.
15
In 1977, a congressional Policy Review Commission, citing the lower court decisions in Oliphant and Belgarde, concluded that "[t]here is an established legal basis for tribes to exercise jurisdiction over non-Indians." 1 Final Report of the American Indian Policy Review Commission 114, 117, 152-154 (1977). However, the Commission's report does not deny that for almost 200 years before the lower courts decided Oliphant and Belgarde, the three branches of the Federal Government were in apparent agreement that Indian tribes do not have jurisdiction over non-Indians. As the Vice Chairman of the Commission, Congressman Lloyd Meeds, noted in dissent, "such jurisdiction has generally not been asserted and . . . the lack of legislation on this point reflects a congressional assumption that there was no such tribal jurisdiction." Final Report, supra, at 587.
16
When treaties with the Washington Tribes were first contemplated, the Commissioner of Indian Affairs sent instructions to the Commission to Hold Treaties with the Indian Tribes in Washington Territory and in the Blackfoot Country. Included with the instructions were copies of treaties
previously negotiated with the Omaha Indians, 10 Stat. 1043 (1854), and with the Ottoe and Missouria Indians, 10 Stat. 1038 (1854), which the Commissioner "regarded as exhibiting provisions proper on the part of the Government and advantages to the Indians" and which he felt would "afford valuable suggestions." The criminal provisions of the Treaty of Point Elliott are clearly patterned after the criminal provisions in these "exemplary" treaties, in most respects copying the provisions verbatim. Like the Treaty of Point Elliott, the treaties with the Omahas and with the Ottoes and Missourias did not § ecifically address the issue of tribal criminal jurisdiction over non-Indians.
Sometime after the receipt of these instructions, the Washington treaty Commission itself prepared and discussed a draft treaty which specifically provided that "[i]njuries committed by whites towards them [are] not to be revenged, but on complaint being made they shall be tried by the Laws of the United States and if convicted the offenders punished." For some unexplained reason, however, in negotiating a treaty with the Indians, the Commission went back to the language used in the two "exemplary" treaties sent by the Commissioner of Indian Affairs. Although respondents contend that the Commission returned to the original language because of tribal opposition to relinquishment of criminal jurisdiction over non-Indians, there is no evidence to support this view of the matter. Instead, it seems probable that the Commission preferred to use the language that had been recommended by the Office of Indian Affairs. As discussed below, the language ultimately used, wherein the Tribe acknowledged its dependence on the United States and promised to be "friendly with all citizens thereof," could well have been understood as acknowledging exclusive federal criminal jurisdiction over non-Indians.
17
In interpreting Indian treaties and statutes, " '[d]oubtful expressions are to be resolved in favor of the weak and defenseless people who are the wards of the nation, dependent upon its protection and good faith.' " McClanahan v. Arizona State Tax Comm'n, 411 U.S. 164, 174, 93 S.Ct. 1257, 1263, 36 L.Ed.2d 129 (1973), see Kansas Indians, 5 Wall. 737, 760, 18 L.Ed. 667 (1866); United States v. Nice, 241 U.S. 591, 599, 36 S.Ct. 696, 698, 60 L.Ed. 1192 (1916). But treaty and statutory provisions which are not clear on their face may "be clear from the surrounding circumstances and legislative history." Cf. DeCoteau v. District County Court, 420 U.S. 425, 444, 95 S.Ct. 1082, 1092, 43 L.Ed.2d 300 (1975).
18
See 4 National American Indian Court Judges Assn., Justice and the American Indian 51-52 (1974); Hearings on S. 1 and S. 1400 (reform of the Federal Criminal Laws) before the Subcommittee on Criminal Laws and Procedures of the Senate Committee on the Judiciary, 93d Cong., 1st Sess., 6469 et seq. (1973).
| 12
|
435 U.S. 110
98 S.Ct. 965
55 L.Ed.2d 148
UNITED STATES, Appellant,v.BOARD OF COMMISSIONERS OF SHEFFIELD, ALABAMA, et al., Appellees.
No. 76-1662.
Argued Oct. 11, 1977.
Decided March 6, 1978.
Syllabus
Section 5 of the Voting Rights Act of 1965 provides that whenever "a State or political subdivision with respect to which" § 4 of the Act is in effect shall enact any voting qualification or standard, practice, or procedure with respect to voting different from that in force on November 1, 1964, the change has no effect as law unless such State or subdivision obtains, as specified in the statute, a declaratory judgment that the change does not have a racially discriminatory purpose or effect. Alternatively, the change may be enforced if it is submitted to the Attorney General and he has interposed no objection to it within 60 days after the submission, or has advised that objection will not be made. The city of Sheffield, Ala., on November 1, 1964, had a commission form of government. Some months later it sought to put to a referendum the question whether the city should adopt a mayor-council form of government, and respondent Board of Commissioners for the city gave the Attorney General written notice of the referendum proposal, Alabama being a State covered under § 4 of the Act. The referendum was held and the voters approved the change. Thereafter, the Attorney General replied that he did not object to the holding of the referendum but that since the voters had elected to adopt the mayor-council form of government, "the change is also subject to the preclearance requirement of Section 5" and that detailed information should be submitted if preclearance was sought through the Attorney General. Following his receipt of such information, the Attorney General made objection to a phase of the change that involved the at-large election of city councilmen. After the city nevertheless scheduled an at-large council election, the United States brought this suit to enforce the § 5 objection. The District Court denied relief, holding that Sheffield was not covered by § 5 because it was not a "political subdivision" as that term is defined in § 14(c)(2) of the Act, which provides that " 'political subdivision' shall mean any county or parish, except that where registration for voting is not conducted under the supervision of a county or parish, the term shall include any other subdivision of a State which conducts registration for voting," and that therefore Sheffield was not a political subdivision because in Alabama registration is conducted by the counties. The court also held that by approving the referendum, the Attorney General had approv d the mayor-council form of government in which councilmen were elected at large, notwithstanding his statement regarding preclearance. Held:
1. Section 5 of the Act applies to all entities having power over any aspect of the electoral process within designated jurisdictions, not only to counties or other units of state government that perform the function of registering voters, and the District Court therefore erred in holding that Sheffield is not subject to § 5. Pp. 117-135.
(a) The District Court's interpretation of the Act does not comport with the Act's structure, makes § 5 coverage depend upon a factor completely irrelevant to the Act's purposes, and thereby permits precisely the kind of circumvention of congressional policy that § 5 was designed to prevent. Section 5 "was structured to assure the effectiveness of the dramatic step Congress [took] in § 4" and "is clearly designed to march in lock-step with § 4." Allen v. State Board of Elections, 393 U.S. 544, 584, 89 S.Ct. 817, 841, 22 L.Ed.2d 1 (Harlan, J., concurring and dissenting). Since jurisdictions may be designated under § 4(b) by reason of the actions of election officials who do not register voters and since § 4(a) imposes duties on all election officials, whether or not they are involved in voter registration, it follows from the very structure of the Act that § 5 must apply to all entities exercising control over the electoral process within the covered States or subdivisions. The Act's terms and decisions of this Court clearly indicate that § 5 was not intended to apply only to voting changes occurring within the registration process or only to the changes of specific entities. Pp. 118-125.
(b) The Act's language does not require such a crippling construction as that given by the District Court. In view of the explicit relationship between § 4 and § 5 and the critical role that § 5 is to play in securing the promise of § 4(a), it is wholly logical to interpret "State . . . with respect to which" § 4(a) is in effect as referring to all political units within it. Pp. 126-129.
(c) The contemporaneous administrative construction of § 5 by the Attorney General and the legislative history of the enactment and re-enactments of the Act compel the conclusion that Congress always understood that § 5 covers all political units within designated jurisdictions like Alabama. Pp. 129-135.
2. The Attorney General's failure to object to the holding of the referendum did not constitute clearance under § 5 of the method of electing city councilmen under the new government. Since Sheffield sought approval only for the holding of the referendum, not for preclearance of the change in the city's form of government, and the Attorney General had warned the city that the change itself required prior federal scrutiny and advised what detailed information would be necessary for that purpose, it is irrelevant that he might have been on notice that if the referendum passed, Sheffield would under state law have had to adopt an at-large system of councilmanic elections. Pp. 981-983.
430 F.Supp. 786, reversed.
Drew S. Days, III, Washington, D. C., for the appellant.
Vincent J. McAlister, Jr., Sheffield, Ala., for appellees.
Mr. Justice BRENNAN delivered the opinion of the Court.
1
Section 5 of the Voting Rights Act of 1965 (Act), 79 Stat. 439, as amended, 42 U.S.C. § 1973c (1970 ed., Supp. V),1 requires that States, like Alabama, which are covered under § 4 of the Act, 79 Stat. 438, as amended, 42 U.S.C. § 1973b (1970 ed., Supp. V),2 obtain prior federal approval before changing any voting practice or procedure that was in effect on November 1, 1964. The questions for decision in this case are (1) whether § 5 requires an Alabama city that has never conducted voter registration3 to obtain preclearance of a voting change and (2), if so, whether the failure of the Attorney General of the United States to object to the holding of a referendum election at which a change is adopted constitutes federal approval of that change.
2
* The city of Sheffield, Ala. (City or Sheffield), was incorporated in 1885 by the Alabama Legislature. As incorporated, the City was governed by a mayor and eight councilmen, two councilmen being elected directly from each of the City's four wards. Sheffield retained this mayor-council government until 1912 when it adopted a system in which three commissioners, elected by the City at large, ran the City. This commission form of government was in effect in Sheffield on November 1, 1964.
3
Sometime prior to March 20, 1975, Sheffield decided to put to a referendum the question whether the City should return to a mayor-council form of government.4 On that date the president of the Board of Commissioners of Sheffield wrote the Attorney General of the United States to "give notice of the proposal of submitting to the qualified voters of the City, whether the present commission form of government shall be abandoned in favor of the Mayor and Alderman form of government."5 On May 13, 1975, before the Attorney General replied, the referendum occurred, and the voters of Sheffield approved the change.
4
On May 23, the Attorney General formally responded to Sheffield that he did "not interpose an objection to the holding of the referendum," but that "[s]ince voters in the City of Sheffield elected to adopt the mayor-council form of government on May 13, 1975, the change is also subject to the preclearance requirements of Section 5." The Attorney General's letter also stated that in the event the City should elect to seek preclearance of the change from the Attorney General it should submit detailed information concerning the change, including a description of "the aldermanic form of government which existed in 1912 and the method by which it was elected, i. e., the number of aldermen, the terms and qualifications for the mayor and aldermen, whether the aldermen were elected at large or by wards, whether there were numbered post, residency, majority vote or staggered term requirements for the aldermanic seats, and whether single shot voting was prohibited."
5
Thereafter the City informed the Attorney General that the proposed change would divide the City into four wards of substantially equal population, that each ward would have two council seats, that councilmen from each ward would be elected at large, and that candidates would run for numbered places. Subsequently the City furnished a detailed map showing ward boundaries, data concerning the population distribution by race for each ward, and a history of black candidacy for city and county offices since 1965. The City's submission was completed on May 5, 1976.
6
On July 6, 1976, the Attorney General notified the City that while he did not "interpose any objection to the change to a mayor-council form of government . . . to the proposed district lines or to the at-large election of the mayor and the president of the council," he did object to the implementation of the proposed at-large method of electing city councilmen because he was "unable to conclude that the at-large election of councilmen required to reside in districts will not have a racially discriminatory effect."
7
Notwithstanding the Attorney General's objection, the City scheduled an at-large council election for August 10, 1976. On August 9, the United States instituted this suit in the District Court for the Northern District of Alabama to enforce its § 5 objection. A temporary restraining order was denied. After the election was held, a three-judge court was convened and that court dismissed the suit. 430 F.Supp. 786 (1977). The District Court unanimously held6 that Sheffield was not covered by § 5 because it is not a "political subdivision" as that term is defined in § 14(c)(2) of the Act, 79 Stat. 445, 42 U.S.C. § 1973l (c)(2), which provides that " 'political subdivision' shall mean any county or parish, except that where regist ation for voting is not conducted under the supervision of a county or parish, the term shall include any other subdivision of a State which conducts registration for voting." See 430 F.Supp., at 788-789 and 790-792. The court also held, one judge dissenting, that "by approving the referendum the Attorney General in fact approved the change to the Mayor-Council form of government [in which aldermen were elected at large] notwithstanding [his statement] to the City that the change was also subject to preclearance." Id., at 789. The court reasoned that the approval of the referendum constituted clearance of those aspects of the proposed change that the Attorney General knew or should have known would be implemented if the referendum passed and that he should have known that Sheffield would be obliged to follow Ala.Code § 11-43-40 (1975)—formerly Ala.Code, Tit. 37, § 426 (Supp.1973)—which requires the at-large election of aldermen in cities, like Sheffield, with populations of less than 20,000. 430 F.Supp., at 789-790. We noted probable jurisdiction. 433 U.S. 906, 97 S.Ct. 2970, 53 L.Ed.2d 1090 (1977). We reverse.
II
8
We first consider whether Congress intended to exclude from § 5 coverage political units, like Sheffield, which have never conducted voter registration. In concluding that Congress did, the District Court noted that § 5 applies to "a [designated] state or a [designated] political subdivision " and construed § 5 to provide that, where a State in its entirety has been designated for coverage, the only political units within it that are subject to § 5 are those that are "political subdivisions" within the meaning of § 14(c)(2). Because § 14(c)(2) refers only to counties and to the units of state government that register voters, the District Court held that political units like the City are not subject to the duties imposed by § 5.
9
There is abundant evidence that the District Court's interpretation of the Act is contrary to the congressional intent. First, and most significantly, the District Court's construction is inconsistent with the Act's structure, makes § 5 coverage depend upon a factor completely irrelevant to the Act's purposes, and thereby permits precisely the kind of circumvention of congressional policy that § 5 was designed to prevent. Second, the language of the Act does not require such a crippling interpretation, but rather is susceptible of a reading that will fully implement the congressional objectives. Finally, the District Court's construction is flatly inconsistent with the Attorney General's consistent interpretations of § 5 and with the legislative history of its enactment and re-enactments. The language, structure, history, and purposes of the Act persuade us that § 5, like the constitutional provisions it is designed to implement, applies to all entities having power over any aspect of the electoral process within designated jurisdictions, not only to counties or to whatever units of state government perform the function of registering voters.
A.
10
Although this Court has described the workings of the Voting Rights Act in prior cases, see, e. g., Allen v. State Board of Elections, 393 U.S. 544, 89 S.Ct. 817, 22 L.Ed.2d 1 (1969); South Carolina v. Katzenbach, 383 U.S. 301, 86 S.Ct. 803, 15 L.Ed.2d 769 (1966), it is appropriate again to summarize its purposes and structure and the special function of § 5. Congress adopted the Act in 1965 to implement the Fifteenth Amendment and erase the blight of racial discrimination in voting. See 383 U.S., at 308, 86 S.Ct., at 808. The core of the Act "is a complex scheme of § ringent remedies aimed at areas where voting discrimination has been the most flagrant." Id., at 315, 86 S.Ct., at 812. Congress resorted to these stern measures because experience had shown them to be necessary to eradicate the "insidious and pervasive evil of [racial discrimination in voting] that had been perpetuated in certain parts of the country." Id., at 309, 86 S.Ct., at 808. Earlier efforts to end this discrimination by facilitating case-by-case litigation had proved ineffective in large part because voting suits had been "unusually onerous to prepare" and "exceedingly slow" to produce results. And even when favorable decisions had been obtained, the affected jurisdictions often "merely switched to discriminatory devices not covered by the federal decrees." See id., at 313-314, 86 S.Ct., at 811.
11
The structure and operation of the Act are relatively simple. Sections 4(a)7 and 4(b)8 determine the jurisdictions that are subject to the Act's special measures. Congress having found that there was a high probability of pervasive racial discrimination in voting in areas that employed literacy tests or similar voting qualifications and that, in addition, had low voter turnouts or registration figures, provided that coverage in a State is "triggered" if it maintained any "test or device"9 on a specified date and if it had voter registration or voter turnout of less than 50% of those of voting age during specified Presidential elections. When this formula is not met in an entire State, coverage is triggered in any "political subdivision" within the State that satisfies the formula. Since § 4(c) of the Act defines "test or device" as a "prerequisite for voting or registration for voting," 79 Stat. 438, 42 U.S.C. § 1973b(c) (emphasis supplied), it is clear that the Attorney General, in making a coverage determination, is to consider not only the voter registration process within a jurisdiction, but also the procedures followed by the election officials at the polling places. A State or political subdivision which does not use literacy tests to determine who may register to vote but employs such tests at the polling places to determine who may cast a ballot may plainly be covered under § 4(b).
12
If designated under § 4(b), a jurisdiction will become subject to the Act's special remedies unless it establishes, in a judicial action, that no "test or device" was used to discriminate on the basis of race in voting. Section 4(a) is one of the Act's core remedial provisions. Because Congress determined that the continued employment of literacy tests and similar devices in covered areas would perpetuate racial discrimination, it suspended their use in § 4(a). Just as the actions of every political unit that conducts elections are relevant under § 4(b), so § 4(a) imposes a duty on every entity in the covered jurisdictions having power over the electoral process, whether or not the entity registers voters. That § 4(a) has this geographic reach is clear both from the fact that a "test or device" may be employed by any official with control over any aspect of an election and from § 4(a)'s provision that its suspension operates "in any [designated] State . . . or in any [designated] political subdivision." (Emphasis supplied.) The congressional objectives plainly required that § 4(a) apply throughout each designated jurisdiction.10 If it did not have this scope, the covered States, which in the past had been so ingenious in their defiance of the spirit of federal law, could have easily circumvented § 4(a) by, e. g., discontinuing the use of literacy tests to determine who may register but requiring that all citizens pass literacy tests at the polling places before voting.
13
Although § 4(a) is a potent weapon, Congress recognized that it alone would not ensure an end to racial discrimination in voting in covered areas. In the past, States and the political units within them had responded to federal decrees outlawing discriminatory practices by "resort[ing] to the extraordinary stratagem of contriving new rules of various kinds for the sole purpose of perpetuating voting discrimination . . . ." South Carolina v. Katzenbach, 383 U.S., at 335, 86 S.Ct., at 822. To prevent any future circumvention of constitutional policy, Congress adopted § 5 which provides that whenever a designated State or political subdivision wishes to change its voting laws, it must first demonstrate to a federal instrumentality that the change will be nondiscriminatory. By freezing each covered jurisdiction's election procedures, Congress shifted the advantages of time and inertia from the perpetrators of the evil to its victims.
14
The foregoing discussion of the key remedial provisions of the Act belies the District Court's conclusion that § 5 § ould apply only to counties and to the political units that conduct voter registration. As is apparent from the Act, § 5 "was structured to assure the effectiveness of the dramatic step that Congress had taken in § 4" and "is clearly designed to march in lock-step with § 4 . . . ." Allen v. State Board of Elections, 393 U.S., at 584, 89 S.Ct., at 841 (Harlan, J., concurring and dissenting). Since jurisdictions may be designated under § 4(b) by reason of the actions of election officials who do not register voters, and since § 4(a) imposes duties on all election officials whether or not they are involved in voter registration, it appears to follow necessarily that § 5 has to apply to all entities exercising control over the electoral processes within the covered States or subdivisions. In any case, in view of the structure of the Act, it would be unthinkable to adopt the District Court's construction unless there were persuasive evidence either that § 5 was intended to apply only to changes affecting the registration process or that Congress clearly manifested an intention to restrict § 5 coverage to counties or to the units of local government that register voters. But the Act supports neither conclusion.
15
The terms of the Act and decisions of this Court clearly indicate that § 5 was not intended to apply only to voting changes occurring within the registration process. Section 5 applies to "any voting qualification or prerequisite to voting, or standard, practice, or procedure with respect to voting . . . ." Since the statutory definition of "voting" includes "all action necessary to make a vote effective in any . . . election, including, but not limited to, registration, . . . casting a ballot, and having such ballot counted properly . . .," 79 Stat. 445, 42 U.S.C. § 1973l (c)(1), § 5's coverage of laws affecting voting is comprehensive.
16
The Court's decisions over the past 10 years have given § 5 the broad scope suggested by the language of the Act. We first construed it in Allen v. State Board of Elections, supra. There our examination of the Act's objectives and original legislative history led us to interpret § 5 to give it "the broadest possible scope," 393 U.S., at 567, 89 S.Ct., at 832, and to require prior federal scrutiny of "any state enactment which altered the election law in a covered State in even a minor way." Id., at 566, 89 S.Ct., at 832. In so construing § 5, we unanimously rejected11 —as the plain terms of the Act would themselves have seemingly required—the argument of an appellee that § 5 should apply only to enactments affecting who may register to vote. 393 U.S., at 564, 89 S.Ct., at 831. Our decisions have required federal preclearance of laws changing the location of polling places, see Perkins v. Matthews, 400 U.S. 379, 91 S.Ct. 431, 27 L.Ed.2d 476 (1971), laws adopting at-large systems of election, ibid.; Fairley v. Patterson (decided with Allen, supra ); laws providing for the appointment of previously elected officials,Bunton v. Patterson (decided with Allen, supra ); laws regulating candidacy,Whitley v. Williams (decided with Allen, supra ); laws changing voting procedures, Allen, supra ; annexations, City of Richmond v. United States, 422 U.S. 358, 95 S.Ct. 2296, 45 L.Ed.2d 245 (1975); 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 (DC 1972); Perkins v. Matthews, supra ; and reapportionment and redistricting, 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); see United Jewish Organizations v. Carey, 430 U.S. 144, 97 S.Ct. 996, 51 L.Ed.2d 229 (1977). In each case, federal scrutiny of the proposed change was required because the change had the potential to deny or dilute the rights conferred by § 4(a).
17
Significantly, in several of these cases, this Court decided that § 5's preclearance requirement applied to cities within designated States without ever inquiring whether the cities conducted voter registration. See Beer v. United States, supra; City of Richmond v. United States, supra; Perkins v. Matthews, supra. It is doubtful, moreover, that § 5 would have been held to be applicable in at least one of these cases if the District Court's interpretation of § 5 were the law.12 Although the assumption of these decisions—that cities are covered whether or not they conduct voter registration—perhaps has little stare decisis significance—the issue not having been raised, but see Brown Shoe Co. v. United States, 370 U.S. 294, 307, 82 S.Ct. 1502, 1513, 8 L.Ed.2d 510 (1962)—these decisions underscore the obvious fact that, whether or not they register voters, cities can enact measures with the potential to dilute or defeat the voting rights of minority group members, and they further illustrate that Congress could not have intended § 5's duties to apply only to those cities that register voters.
18
Because § 5 embodies a judgment that voting changes occurring outside the registration process have the potential to discriminate in voting on the basis of race, it would be irrational for § 5 coverage to turn on whether the political unit enacting or administering the change itself registers voters. But quite apart from the fact that this cramped construction cannot be squared with any reasonable set of objectives, the District Court's interpretation of § 5 would permit the precise evil that § 5 was designed to eliminate. Under it, local political entities like Sheffield would be free to respond to local pressure to limit the political power of minorities and take steps that would, temporarily at least, dilute or entirely defeat the voting rights of minorities, e. g., providing for the appointment of officials who previously had been elected, moving the polling places to areas of the city where minority group members could not safely travel, or even providing that election officials could not count the ballots of minority voters. The only recourse for the minority group members affected by such changes would be the one Congress implicitly found to be unsatisfactory: repeated litigation. See United Jewish Organizations v. Carey, supra, 430 U.S., at 156, 97 S.Ct., at 1005. The District Court's reading of § 5 would thus place the advantages of time and inertia back on the perpetrators of the discrimination as to all elections conducted by political units that do not register voters, and, equally seriously, it would invite States to circumvent the Act in all other elections by allowing local entities that do not conduct voter registration to control critical aspects of the electoral process. The clear consequence of this interpretation would be to nullify both § 5 and the Act in a large number of its potential applications.13
B
19
The terms of the Act do not require such an absurd result. In arriving at its interpretation of § 5, the District Court focused on its language "a State or political subdivision with respect to which the prohibitions set forth in [§ 4(a)] based upon determinations made under [§ 4(b)] are in effect." While § 5's failure to use the phrase "in a [designated] State or subdivision" arguably provides a basis for an inference that § 5 was not intended to have the territorial reach of § 4(a), the actual terms of § 5 suggest that its coverage is to be coterminous with § 4(a)'s. The coverage provision of § 5 specifically refers to both § 4(a) and § 4(b), a fact which itself implies that § 4—not § 14(c)(2)—is to determine the reach of § 5. And the content of § 5 supports this view. Section 5 provides that it is to apply to the jurisdictions "with respect to which" § 4(a)'s prohibitions are in effect. Since the States or political subdivisions "with respect to which" § 4(a)'s duties apply are entire territories and not just county governments or the units of local government that register voters, § 5 must, it would seem, apply territorially as well.
20
Quite apart from the fact the textual interrelationship between § 4(a) and § 5 affirmatively suggests that § 5 is to have a territorial reach, the operative language of the statute belies any suggestion that § 14(c)(2) limits the scope of § 5. Where, as here, a State has been designated for coverage, the meaning of the term "political subdivision" has no operative significance in determining the reach of § 5: the only question is the meaning of "[designated] State." There is no more basis in the statute or its history for treating § 14(c)(2) as limiting the reach of § 5 than there is for treating it as limiting § 4(a).
21
Broader considerations support this construction of § 5's terms. The Act, of course, is designed to implement the Fifteenth Amendment and, in some respects, the Fourteenth Amendment, see Katzenbach v. Morgan, 384 U.S. 641, 86 S.Ct. 1717, 16 L.Ed.2d 828 (1966); South Carolina v. Katzenbach, 383 U.S. 301, 86 S.Ct. 803, 15 L.Ed.2d 769 (1966). One would expect that the substantive duties imposed in the Act, as in the constituti nal provisions that it is designed to implement, would apply not only to governmental entities formally acting in the name of the State, but also to those political units that may exercise control over critical aspects of the voting process. Cf. Hunter v. Erickson, 393 U.S. 385, 89 S.Ct. 557, 21 L.Ed.2d 616 (1969); Terry v. Adams, 345 U.S. 461, 73 S.Ct. 809, 97 L.Ed. 1152 (1953). It is, of course, the case that the term "State" does not have this meaning throughout the Act. For example, the Attorney General may not designate a city for coverage under § 4(b) of the Act on the theory the city's actions are often "state action"; for purposes of designation, "State" refers to a specific geographic territory in its entirety. But it is clear that once a State is designated for coverage the Act's remedial provisions apply to actions that are not formally those of the State. Section 4(a), of course, applies to all state actors, and even the legislative history relied upon by the District Court reveals the congressional understanding that the reference to "State" in § 5 includes political units within it.14 This alone would appear sufficient reason to make § 5's preclearance requirement apply to all state action. So in view of the explicit textual relationship between § 4 and § 5, the irrelevance of § 14(c)(2) to the meaning of "[designated] State," and the critical role that § 5 is to play in securing the promise of § 4(a), it is wholly logical to interpret "State . . . with respect to which" § 4(a) is in effect as referring to all political units within it.
22
Because the designated jurisdiction in this case is a State, we need not consider the question of how § 5 applies when a political subdivision is the designated entity. But we observe that a similar argument can be made concerning § 5's reference to "[designated] political subdivision," and this fact plainly supports our interpretation of § 5's parallel reference to "[designated] State." The legislative background of § 14(c)(2)'s definition of "political subdivision" reflects that Congress intended to define "political subdivision" as areas of a nondesignated State,15 not only as functional units or levels of government. The conclusion clearly follows that this definition was intended to operate only for purposes of determining which political units in nondesignated States may be separately designated for coverage under § 4(b).16 Congress seemingly wished to ensure that, just as, for example, a school board could not be separately designated for coverage in the name of the State, so it could not be separately designated on the theory that it was a "political subdivision" of a State. By the same token, it is equally clear that Congress never intended the § 14(c)(2) definition to limit the substantive reach of the Act's core remedial provision once an area of a nondesignated State had been determined to be covered; all state actors within designated political subdivisions are subject to § 4(a). In view of the fact that "political subdivision" was understood as referring to an area of the Stat , the fact that the Act generally is aimed at all "state action" occurring within specified areas, and the textual interrelationship between § 4(a) and § 5, it logically follows that where a political subdivision has been separately designated for coverage under § 4, all political units within it are subject to the preclearance requirement.17
C
23
Finally, the legislative history and other related aids to ascertaining congressional intent leave little doubt but that Congress has always—and certainly by 1975—been of the view that § 5, like § 4(a), applies territorially and includes political units like Sheffield whether or not they conduct voter registration. The specific narrow question was not extensively discussed at the time of original enactment, but there is little, if anything, in the original legislative history that in any way supports the crippling construction of the District Court.18 At least one statement made in the course of the debate over § 5 strongly suggests that Congress never intended to draw a distinction between cities that do and do not register voters. In support of an amendment that would have stricken § 5 from the Act, Senator Talmadge of Georgia—minutes before the Senate voted to reject his amendment—argued that the section was "far-fetched" because it would require any city which sought to enact or administer a voting change to obtain federal preclearance. 111 Cong.Rec. 10729 (1965). While this statement was made by an opponent of the Act, its proponents, one of whom was on the floor defending § 5 at the time of Senator Talmadge's assertion, see 111 Cong.Rec. 10728 (1965) (remarks of Sen. Tydings), did not disagree with his assessment. Thus, whatever Senator Talmadge's intentions, his statement possesses significant pertinence. See Arizona v. California, 373 U.S. 546, 583 n. 85, 83 S.Ct. 1468, 1489, 10 L.Ed.2d 542 (1963).
24
What is perhaps a more compelling argument concerning the original, and subsequent, congressional understanding of the scope of § 5 is that the Attorney General has, since the Act was adopted in 1965, interpreted § 5 as requiring all political units in designated jurisdictions to preclear proposed voting changes.19 This contemporaneous administrative construction of the Act is persuasive evidence of the original understanding, especially in light of the extensive role the Attorney General played in drafting the statute and explaining its operation to Congress.20 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, 85 S.Ct. 792, 13 L.Ed.2d 616 (1965). In recognition of the Attorney General's key role in the formulation of the Act, this Court in the past has given great deference to his interpretations of it. See Perkins v. Matthews, 400 U.S., at 390-394, 91 S.Ct., at 437-439.21 Moreover, the Attorney General's longstanding construction of § 5 was reported to Congress by Justice Department officials in connection with the 1975 extension of the Act. See testimony of Assistant Attorney General J. Stanley Pottinger at the Hearings on H.R. 939, et al. before the Subcommittee on Civil and Constitutional Rights of the House Committee on the Judiciary, 94th Cong., 1st Sess., 166 (1975) (1975 House Hearings); exhibits to the testimony of Assistant Attorney General J. Stanley Pottinger at the Hearings on S. 407, et al. before the Subcommittee on Constitutional Rights of the Senate Committee on the Judiciary, 94th Cong., 1st Sess., 598-599 (1975) (1975 Senate Hearings).22
25
And the legislative history of the 1970 and 1975 re-enactments compellingly supports the conclusion that Congress shared the Attorney General's view. In 1970, Congress was clearly fully aware of this Court's interpretation of § 5 as reaching voter changes other than those affecting the registration process and plainly contemplated that the Act would continue to be so construed. See, e. g., Hearings on H.R. 4249 et al. before Subcommittee No. 5 of the House Committee on the Judiciary, 91st Cong., 1st Sess., 1, 4, 18, 83, 130-131, 133, 147-149, 154-155, 182-184, 402-454 (1969); Hearings on S. 818 et al. before the Subcommittee on Constitutional Rights of the Senate Committee on the Judiciary, 91st Cong., 1st and 2d Sess., 48, 195-196, 369-370, 397-398, 426-427, 469 (1970). The history further suggests that Congress assumed that, just as § 5 applies to changes that affect aspects of voting other than registration, so it also applies to entities other than those which conduct voter registration. One of the principal factual arguments advanced in favor of the renewal of § 5 was that Anniston, Ala.—which, like Sheffield, has never conducted voter registration—had failed to obtain preclearance of some highly significant voting changes. See Joint View of 10 Members of the Senate Judiciary Committee Relating to the Extension of the Voting Rights Act of 1965, 116 Cong.Rec. 5521 (1970).
26
The congressional history is even clearer with respect to the 1975 extension, which, of course, is the legislation that controls the case at bar. Both the House and Senate Hearings on the bill reflect that the assumption that the coverage of § 5 was unlimited was widely shared and unchallenged. In addition to the aforementioned testimony of the then Assistant Attorney General, which of course has special significance, numerous witnesses expressed this view, either directly or indirectly. See, e. g., 1975 Senate Hearings 75-76 (in covered jurisdictions § 5 requires preclearance of all voting changes, and objections have been entered concerning every stage of the electoral process), 112-114 (describing preclearance of changes in city of Montgomery, Ala.), 463-464 (stating that if Act were applied to Texas, § 5 would require preclearance of voting changes of cities and school districts, neither of which register voters23 ), and 568 (statement by Justice Department official that there is no need to clarify Act to make certain that city council redistricting is covered by § 5); 1975 House Hearings 332 (referring to city of Bessemer, Ala., as "covered jurisdiction") and 631-632 (describing lengthy § 5 preclearance process for Charleston, S.C.—a city which, like Sheffield, does not conduct voter regist ation).24 More significantly, both the House and Senate Committee Reports preclude the conclusion that § 5 was not understood to operate territorially. Not only do the reports state that § 5 applies "[i]n [designated] jurisdictions," see S.Rep. No. 94-295, p. 12 (1975) (1975 Senate Report); H.R.Rep. No. 94-196, p. 5 (1975) (1975 House Report); U.S.Code Cong. & Admin.News 1975, p. 774 (emphasis supplied), they also announce that one benefit of the proposed extension of the Act to portions of Texas would be that Texas cities and school districts—neither of which has ever registered voters—would be subject to the preclearance requirement. 1975 Senate Report 27-28; 1975 House Report 19-20. Finally, none of the opponents of the 1975 legislation took issue with the common assumption that § 5 applied to all voting changes within covered States. Indeed, they apparently shared this view. See 121 Cong.Rec. S13072 (July 21, 1975) (remarks of Sen. Stennis) ("[a]ny [voting changes] . . . made in precincts, county districts, school districts, municipalities, or State legislatures, or any other kind of officers, ha[ve] to be submitted . . . to the Attorney General"). See also id., at Cong.Rec. S13331 (July 22, 1975) (remarks of Sen. Allen).
27
Whatever one might think of the other arguments advanced, the legislative background of the 1975 re-enactment is conclusive of the question before us. When a Congress that re-enacts a statute voices its approval of an administrative or other interpretation thereof, Congress is treated as having adopted that interpretation, and this Court is bound thereby. See, e. g., Don E. Williams Co. v. Commissioner, 429 U.S. 569, 576-577, 97 S.Ct. 850, 855 (1977); Albemarle Paper Co. v. Moody, 422 U.S. 405, 414 n. 8, 95 S.Ct. 2362, 2370, 45 L.Ed.2d 280 (1975); H. Hart & A. Sacks, The Legal Process: Basic Problems in the Making and Application of Law 1404 (tent. ed. 1958); cf. Zenith Radio Corp. v. Hazeltine Research, Inc., 401 U.S. 321, 336 n. 7, 91 S.Ct. 795, 28 L.Ed.2d 77 (1971); Girouard v. United States, 328 U.S. 61, 69 -70, 66 S.Ct. 826, 829-830, 90 L.Ed. 1084 (1946). Don E. Williams Co. v. Commissioner, supra, is instructive. As here, there had been a longstanding administrative interpretation of a statute when Congress re-enacted it, and there, as here, the legislative history of the re-enactment showed that Congress agreed with that interpretation, leading this Court to conclude that Congress had ratified it. 429 U.S., at 574-577, 97 S.Ct., at 854-855. While we have no quarrel with our Brother STEVENS' view that it is impermissible to draw inferences of approval from the unexplained inaction of Congress, see post, at 149, citing Hodgson v. Lodge 851, Int'l Assn. of Mach. & Aerospace Workers, 454 F.2d 545, 562 (CA7 1971) (Stevens, J., dissenting), that principle has no applicability to this case. Here, the "slumbering army" of Congress was twice "aroused," and on each occasion it re-enacted the Voting Rights Act and manifested its view that § 5 covers all cities in designated jurisdictions.25
28
In short, the legislative background of the enactment and re-enactments compels the conclusion that, as the purposes of the Act and its terms suggest, § 5 of the Act covers all political units within designated jurisdictions like Alabama. Accordingly we hold that the District Court erred in concluding that § 5 oes not apply to Sheffield.
III
29
Having decided that Sheffield is subject to § 5 we must consider whether the District Court properly concluded that the Attorney General's failure to object to the holding of the referendum constituted clearance under § 5 of the method of electing city councilmen under the new government. Only a few words are needed to demonstrate that the District Court also erred on this point.
30
It bears re-emphasizing at the outset that the purpose of § 5 is to establish procedures in which voting changes can be scrutinized by a federal instrumentality before they become effective. The basic mechanism for preclearance is a declaratory judgment proceeding in the District Court for the District of Columbia, but the Act, of course, establishes an alternative procedure of submission to the Attorney General to give "covered State[s] a rapid method of rendering a new state election law enforceable." Allen v. State Board of Education, 393 U.S., at 549, 89 S.Ct., at 823. Under the statute's terms, the Attorney General will be treated as having approved a voting change if such change "has been submitted . . . to [him] and [he] has not interposed an objection within sixty days after such submission " or if the change has been submitted and "the Attorney General has affirmatively indicated that such objection will not be made." 42 U.S.C. § 1973c (1970 ed., Supp. V) (emphasis supplied). See also Georgia v. United States, 411 U.S., at 540, 93 S.Ct., at 1710. While the Act does provide that inaction by the Attorney General may, under certain circumstances, constitute federal preclearance of a change, the purposes of the Act would plainly be subverted if the Attorney General could ever be deemed to have approved a voting change when the proposal was neither properly submitted nor in fact evaluated by him. But the District Court held precisely that.
31
First, it is clear on this record—and the District Court did not find otherwise—that Sheffield did not, in its March 20, 1975, letter, submit to the Attorney General a request for preclearance of the change in the City's form of government. Sheffield's letter sought approval only for the holding of the referendum.26 Moreover, under the Attorney General's own regulation, the validity of which is not questioned, the City could not at that time have sought preclearance of the change in the form of government because, as the March 20, 1975, letter stated, see n. 4, supra, the details of the change had not yet been worked out. See 28 CFR § 51.7 (1976).27
32
And there is no question but that the Attorney General did not intend to approve the proposed change to a mayor-council government and could not be understood as having done so. When the Attorney General wrote the City and told it that he had decided not to interpose an objection to the holding of the referendum, he warned that the change itself required prior federal scrutiny, and he apprised it of the information it should supply f it wished to attempt to preclear the change in government with the Attorney General, rather than in federal district court.
33
Under the circumstances, it is irrelevant that the Attorney General might have been on notice that, if the referendum passed, Sheffield would have been required by state law to adopt an at-large system of councilmanic elections.28 Although the City could have easily placed the request for preclearance of the change in the form of government before the Attorney General i. e., by taking all action necessary for the completion of the change before submitting it, see 28 CFR § 51.7 (1976), and by stating in its letter that it desired preclearance of the change itself, see §§ 51.5, 51.10(a)—it did not, so the Attorney General, quite properly, treated Sheffield as having sought prior clearance only of the referendum. Accordingly, the District Court erred in concluding that the Attorney General has to be understood as having approved the adoption of an at-large system of election.
34
Since we conclude that Sheffield is covered by § 5 of the Act and that the Attorney General did not clear the City's decision to adopt a system of government in which councilmen are elected at large, the judgment of the District Court is
35
Reversed.
36
Mr. Justice BLACKMUN, concurring.
37
Although I find this case to be closer than much of the language of the Court's opinion would indicate, I nevertheless join that opinion. I do so because I feel that whatever contrary argument might have been made persuasively on the § 5 issue a decade ago, the Court's decisions since then and the re-enactments by Congress, see ante, at 132-135, compel the result the Court reaches today.
38
Mr. Justice POWELL, concurring in part and concurring in the judgment.
39
Given the Court's reading of the Voting Rights Act in prior decisions, and particularly in Allen v. State Board of Elections, 393 U.S. 544, 89 S.Ct. 817, 22 L.Ed.2d 1 (1969), and Perkins v. Matthews, 400 U.S. 379, 91 S.Ct. 431, 27 L.Ed.2d 476 (1971), I concur in the judgment of the Court. In addition, I concur in Part III of the Court's opinion.
40
Although my reservations as to the constitutionality of the Act have not abated,* I believe today's decision to be correct under this Court's precedents and necessary in order to effectuate the purposes of the Act, as c nstrued in Allen and Perkins. In view of these purposes it does not make sense to limit the preclearance requirement to political units charged with voter registration. As the majority observes, ante, at 124, such a construction of the statute could enable covered States or political subdivisions to allow local entities that do not conduct voter registration to assume responsibility for changing the electoral process. A covered State or political subdivision thereby could achieve through its instrumentalities what it could not do itself without preclearance.
41
I agree with the Court that a more sensible construction of § 5, in view of and in accord with the statute's purpose, is to treat the governmental units responsible for changes in the electoral process within a designated State or political subdivision as the equivalent of the State or political subdivision. This construction also accords with Congress' understanding, cited by the District Court, that the designation of a State would imply the designation of its political subdivisions. In such a situation, the reason for including the political subdivisions is not that they are defined in § 14(c)(2) and therefore might have been designated separately. Their eligibility for designation apart from the State is without significance once the entire State has been designated. Rather, the political subdivisions are covered because they are within the jurisdiction of the designated unit and might be delegated its authority to enact or administer laws affecting voting. Because the same is true of a governmental unit like the city of Sheffield that is not a "political subdivision" within the meaning of § 14(c)(2), I agree with the Court that it too is subject to § 5 and must comply with its requirements.
42
Mr. Justice STEVENS, with whom Mr. Chief Justice BURGER and Mr. Justice REHNQUIST join, dissenting.
43
The principal question presented by this case is whether the city of Sheffield, Ala., is covered by § 5 of the Voting Rights Act of 1965.1 If that question could be answered solely by reference to the Act's broad remedial purposes, it might be an easy one. But on the basis of the statute as written, the question is not nearly as simple as the Court implies. I believe it requires two separate inquiries: First, whether the city of Sheffield is a "political subdivision" within the meaning of § 5; and second, even if that question is answered in the negative, whether action by the city should be regarded as action of the State within the meaning of that section.
44
* Briefly stated, § 5 provides that whenever a State or a political subdivision, designated pursuant to § 4, seeks to change a voting practice, it must obtain clearance for that change from either the United States District Court for the District of Columbia or the Attorney General of the United States.2 This so-called "preclearance" requirement is one of the most extraordinary remedial provisions in an Act noted for its broad remedies. Even the Department of Justice has described it as a "substantial departure . . . from ordinary concepts of our federal system";3 its encroachment on state sovereignty is significant and undeniable. The section must, therefore, be read and interpreted with care. As a starting point, it is clear that it applies only to actions taken by two types of political units States or political subdivisions.
45
Since Alabama is a designated State under § 4, "each and every political subdivision within that State" is covered by § 5. See H.R.Rep. No. 439, 89th Cong., 1st Sess., 25 (1965) U.S.Code Cong. & Admin.News 1965, pp. 2437, 2456. This does not, however, mean that the city of Sheffield is a "political subdivision" of Alabama covered by § 5. For the Act specifically defines "political subdivision," and that definition does not even arguably include an entity such as Sheffield.
Section 14(c)(2) of the Act provides:
46
"The term 'political subdivision' shall mean any county or parish, except that where registration for voting is not conducted under the supervision of a county or parish, the term shall include any other subdivision of a State which conducts registration for voting."
47
Sheffield is not a county or a parish, and it does not conduct registration for voting. Consequently, it is not a "political subdivision."4
48
The legislative history of § 14(c)(2) demonstrates that the term "political subdivision" was defined for the specific purpose of limiting the coverage of the Act. Because the term had not been defined in the bill as originally drafted, Senator Ervin, among others, recognized that it might be read to encompass minor, local governmental units. It was to allay this concern that the definition was included in the Act.
49
"Senator ERVIN. This [an early version of the Voting Rights Act] not only applies to a State, but this would apply to any little election district in the State . . ..
50
"Attorney General KATZENBACH. I do not believe so, Senator. There is a question as to what the term 'political subdivision' means. I have taken the view in the other body and I would state it here that we are talking about the area in which people are registered, the appropriate unit for registering. I believe in every State that comes within the provisions of this, we are talking about no area smaller than a county or a parish.
51
"Senator ERVIN. Do you not think that you had better amend your bill to so provide, because in North Carolina, every municipality is a political subdivision of the State, even every sanitary district is a subdivision of the State. Also every election district is a subdivision of the State, every school district . . . every special bond, school-bond, district is a subdivision of the State.
52
"Attorney General KATZENBACH. I think that might be done to define political subdivision here in the bill in that way, Senator. That is what I intended." Hearings on S. 1564 before the Senate Committee on the Judiciary, 89th Cong., 1st Sess., 44 (1965) (1965 Senate Hearings).
53
See also Hearings on H.R. 6400 before Subcommittee No. 5 of the House Committee on the Judiciary, 89th Cong., 1st Sess., 21 (1965) (1965 House Hearings).
54
Later, during the Senate debate on the Voting Rights Act, Senator Ervin referred to the above dialogue with Attorney General Katzenbach and stated, without contradiction, that the term "political subdivision" had been defined to avoid a construction of the Act that would "confer jurisdiction upon the Federal Government to intervene in every ward of every city and town covered by the bill." 111 Cong.Rec. 9270 (1965). The Senate Report on the Voting Rights Act made the same point equally bluntly:
55
"This definition makes clear that the term 'political subdivision' is not intended to encompass precincts, election districts, or other similar units when they are within a county or parish which supervises registration for voting." S.Rep. No. 162, pt. 3, 89th Cong., 1st Sess., 31 (1965); 1965 U.S.Code Cong. & Admin. News, p. 2569.5
56
In short, whatever other ambiguities there may be in the Act, the definition of "political subdivision" is not one of them. It was clearly intended to limit the reach of the Act, and the definition clearly excludes cities, such as Sheffield, that do not register voters.
II
57
The remaining question is whether a political unit that does not register voters may be regarded as the "State," as that term is used in § 5. If there were no contrary legislative history, it might be reasonable to treat the action of entities such as Sheffield, which are within the jurisdiction of a covered State, as "state action," just as such governmental action would be regarded as state action in a constitutional sense. However, such an interpretation of the word "State" would extend the reach of the statute to the same kind of purely local matters that Congress intended to exclude by defining the term "political subdivision."
58
As is apparent from the comments of Senator Ervin, quoted supra, there was congressional concern over whether the Act would extend to governmental units below the county level. That concern was repeatedly expressed and was specifically addressed in § 14(c)(2). Unquestionably, as the Court recognizes,ante, at 128-129, that section protects small political units, such as school boards, from being separately designated for coverage under § 4(b). The concerns which motivated this exclusion from § 4(b) apply equally to § 5.6 Indeed, the legislative history provides a perfectly logical explanation of why Congress deliberately limited the reach of § 5, as well as § 4(b), to "political subdivisions," as defined by the Act.
59
First, a preclearance requirement limited to governmental units engaged in the registration process would be in accord with the fact that the Act was principally concerned with literacy tests and other devices which were being used to prevent black citizens from registering to vote. As Attorney General Katzenbach repeatedly emphasized, the "bill really is aimed at getting people registered." See 1965 House Hearings 21.7
60
Second, the Act limits judicial review of an election change under § 5 to a three-judge District Court sitting in the District of Columbia. The opponents of the Act frequently expressed their outrage at this limitation, arguing that it was unfair to make people travel "250 or 1,000 or 3,000 miles in order to gain access to a court of justice." See, e. g., 1965 Senate Hearings 43 (remarks of Sen. Ervin); 111 Cong.Rec. 10371 (remarks of Sen. Ellender) (1965). Proponents of § 5 justified the provision on the ground that it would not be difficult or unusual for a State, county, or comparable body to have to make its arguments in Washington, D. C. See, e. g., Senate Hearing 44 (testimony of Attorney General Katzenbach). Senator Javits' comments on the floor of the Senate are typical of this line of argument:
61
"Finally, it cannot be claimed that the bill is unfair to litigants other than the Federal Government because we are not dealing with litigants who are unable to pursue a legal remedy. We are not dealing with litigants who might find travel difficult or legal proceedings or appearances expensive. We are dealing with political subdivisions and States, which have county attorneys or State attorneys general who come to Washington, D. C., for many things, and they would not be required to come to Washington merely to participate in litigation that might arise under the bill." 111 Cong.Rec. 10363 (1965).
62
Obviously, this same argument does not apply to most townships, school boards, and the numerous other small, local units involved in the political process. Whether or not it would be "fair" to make these smaller political units argue their cases only in Washington, D. C., the drafters and supporters of the Act gave assurances that § 5 was not so intended. A broad definition of "State" would nullify those assurances just as surely as a loose interpretation of "political subdivision."
63
Finally, the logistical and administrative problems inherent in reviewing all voting changes of all political units strongly suggest that Congress placed limits on the preclearance requirement. Statistics show that the Attorney General's staff is now processing requests for voting changes at the rate of over 1,000 per year,8 and this rate is by no means indicative of the number of submissions involved if all covered States and political units fully complied with the preclearance requirement, as interpreted by the Attorney General.9 Furthermore, under the statute each request must be passed upon within 60 days of its submission. This large and rapid volume of work is a product, in part, of this Court's decision in Allen.10 But even apart from Allen, it is certainly reasonable to believe that Congress, having placed a strict time limit on the Attorney General's consideration of submissions, also deliberately placed a limit on the number and importance of the submissions themselves.11 This result was achieved by restricting the reach of § 5 to enactments of either the States themselves or their political subdivisions, as defined by § 14(c)(2).
64
Neither the "contemporaneous" construction of the Act by the Attorney General nor the subsequent amendments of § 5 by Congress, in my judgment, undermine the validity of this reading of the section. The Court asserts that the "Attorney General has, since the Act was adopted in 1965, interpreted § 5 as requiring all political units in designated jurisdictions to preclear proposed voting changes." Ante, at 131. The unambiguous historical evidence is to the contrary.
65
The Department of Justice did not adopt regulations implementing § 5's preclearance provisions until September 1971, six years after the passage of the Act and nearly two years after this Court's decision in Allen. 36 Fed.Reg. 18186; see Georgia v. United States, 411 U.S. 526, 93 S.Ct. 1702, 36 L.Ed.2d 472. And it was not until the Allen decision that the Department even attempted to develop standards and procedures for enforcing § 5. See 1975 Senate Hearings 537 (testimony of Assistant Attorney General J. Stanley Pottinger). In short, there was no "contemporaneous" construction of the Act by the Attorney General. It may have been reasonable for the Attorney General, in promulgating regulations after the Allen decision, to have assumed that, since the section now covered all voting changes and not simply registration changes, all political units and not simply political subdivisions were also covered. But that assumption sheds no light on Congress' intention in passing the Act in 1965.
66
Nor, in my judgment, are the subsequent amendments of the Act in 1970 and 1975 reliable guides to what Congress intended in 1965 when it drafted the relevant statutory language. The 1970 and 1975 extensions of the Act did not change the operative language in § 5 or alter the definition of the term "political subdivision." As I suggested a few years ago, "[a]n interpretation of a provision in [a] controversial and integrated statute . . . cannot fairly be predicated on unexplained inaction by different Congresses in subsequent years." Hodgson v. Lodge 851, Int'l Assn. of Mach. & Aerospace Workers, 454 F.2d 545, 562 (CA7 1971) (dissenting opinion).12
67
In sum, I am persuaded that the result the Court reaches today is not a faithful reflection of the actual intent of the Congress that enacted the statute. I therefore respectfully dissent.
1
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 [§ 4(a) of the Act, 79 Stat. 438, as amended], based upon determinations made under the first sentence of section 1973b(b) of this title [§ 4(b) of the Act, 79 Stat. 438, as amended], 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, . . . 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. . . . "
2
Pursuant to the first sentence of § 4(b), Alabama was designated as a covered jurisdiction on August 6, 1965, 30 Fed.Reg. 9897, it having been determined that Alabama maintained a "test or device" on November 1, 1964, and that "less than 50 per centum of [those] persons of voting age residing [in Alabama] were registered on November 1, 1964, or . . . voted in [the 1964 Presidential election]." 79 Stat. 438, as amended, 42 U.S.C. § 1973b(b) (1970 ed., Supp. V). Because Alabama has not established in a judicial proceeding that the voter qualification requirements had not been used for the purpose or with the effect of denying or abridging the right to vote on account of race, it is subject to the prohibitions of § 4(a), see 42 U.S.C. § 1973b(a) (1970 ed., Supp. V), and hence to § 5.
3
In Alabama, voter registration is conducted by county boards, the members of which are appointed by specified state officials. See Ala.Code, Tit. 17, § 17-4-40 (1977).
4
The record reflects that the citizens of Sheffield had been considering this change for some time. During the late 1960's, the City wrote the Attorney General of Alabama and raised a number of questions concerning the procedures and mechanics for adopting a mayor-council form of government. The Alabama Attorney General's reply, which took the form of an opinion letter, advised what procedures would have to be followed to effect such a change and informed the City that if the electorate voted to abandon the commission form of government Sheffield would return to the aldermanic form of government "as it existed . . . at the time the commission form of government was adopted."
5
The letter provided that the mechanics of the proposed referendum were governed by Art. 3 of Title 37 of the Code of Alabama—by which the City presumably meant Art. 3 of Chapter 4 of Title 37, now Ala.Code, Tit. 11, § 11-44-150 et seq. (1977)—that "[p]resent existing voting wards are not changed at the time of voting (but may be equitably adjusted at a later date)"—as they in fact were—and that "if the present commission type is abandoned, the [mayor-aldermanic form that existed in 1912] would automatically be reinstated."
6
The court initially decided the case on the ground that the Attorney General's July 6, 1976 objection was one day out of time and hence ineffective. However, on petition for rehearing the court found that, because July 5, 1976 was a federal holiday, the July 6 objection was timely. See 430 F.Supp., at 787. The court then considered the other grounds, discussed infra.
7
Section 4(a), as set forth in 42 U.S.C. § 1973b(a) (1970 ed., Supp. V), provides in pertinent part:
"To assure that the right of citi[z]ens of the United States to vote is not denied or abridged on account of race or color, no citizen shall be denied the right to vote in any Federal, State, or local election because of his failure to comply with any test or device in any State with respect to which the determinations have been made under the first two sentences of subsection (b) of this section or in any political subdivision with respect to which such determinations have been made as a separate unit, unless the United States District Court for the District of Columbia in an action for a declaratory judgment brought by such State or subdivision against the United States has determined that no such test or device has been used during the seventeen years preceding the filing of the action for the purpose or with the effect of denying or abridging the right to vote on account of race or color . . . ."
8
In pertinent part, § 4(b), as set forth in 42 U.S.C. § 1973b(b) (1970 ed., Supp. V), provides:
"The provisions of subsection (a) of this section [§ 4(a)] shall apply in any State or in any political subdivision of a State which (1) the Attorney General determines maintained on November 1, 1964, any test or device, and with respect to which (2) the Director of the Census determines that less than 50 per centum of the persons of voting age residing therein were registered on November 1, 1964, or that less than 50 per centum of such persons voted in the presidential election of November 1964."
9
Section 4(c) of the Act defines "test or device" to "mean any requirement that a person as a prerequisite for voting or registration for voting (1) demonstrate the ability to read, write, understand, or interpret any matter, (2) demonstrate any educational achievement or his knowledge of any particular subject, (3) possess good moral character, or (4) prove his qualifications by the voucher of registered voters or members of any other class." 79 Stat. 438, 42 U.S.C. § 1973b(c).
10
The 1975 amendments to the Act eliminate any question but that § 4(a)'s prohibition has to apply to all political units within designated jurisdictions. Since these amendments provide that, as to jurisdictions that are considered for coverage because they had low voter turnout or registration in the November 1972 election, the phrase "test or device" includes "any registration or voting notices, forms, instructions, assistance, or other materials or information relating to the electoral process, including ballots, only in the English language, where the Director of the Census determines that more than five per centum of the citizens of voting age residing in such State or political subdivision are members of a single language minority[,]" 89 Stat. 401, 42 U.S.C. § 1973b(f)(3) (1970 ed., Supp. V), it is indisputable that Congress contemplated that the suspension of tests and devices would apply to local officials other than those employed by counties or by the functional units of state government that conduct voter registration.
11
Altho gh both Mr. Justice Harlan and Mr. Justice Black dissented from aspects of the Court's holding in Allen, neither disagreed with the proposition that the statute had to be construed to cover changes occurring outside the registration process. See 393 U.S., at 591-593, 89 S.Ct., at 844-845 (Harlan, J., concurring and dissenting); id., at 595, 89 S.Ct., at 846 (Black, J., dissenting).
12
City of Richmond v. United States, of course, involved a city in Virginia. There voter registration, while conducted on a citywide basis, is—and was at the time of that case—performed, not by employees of the city, but by an electoral board appointed by state judges. See Va.Code 24.1, §§ 24.1-29, 24.1-43—24.1-46 (Supp.1977). While Richmond's Electoral Board would be covered under the District Court's reading of § 5, it would seem that the city itself would not—a fact that illustrates the severe limitations that the District Court's construction would impose on the reach of § 5.
13
Our Brother STEVENS' dissenting opi ion neither disputes that § 4(a)'s duties apply to all political units within designated jurisdictions nor disagrees that § 5 was enacted to assure the effectiveness of § 4(a) by preventing the contrivance of new rules to defeat newly won voting rights. But, in addition to advancing the arguments unanimously rejected by this Court in Allen, and by numerous decisions following it, compare post, at 145, with supra, at 122-123, the dissent argues that several congressional policies will nevertheless be promoted if cities that do not register voters remain free to concoct new measures for the sole purpose of perpetuating voting discrimination. His suggestion that Congress did not intend to cover purely local elections, post, at 144, overlooks both the overwhelming evidence that the Act is intended to secure the right to vote in local as well as state and national elections, see, e. g., § 14(c)(1) of the Act, 79 Stat. 445, 42 U.S.C. § 1973l(c)(1) ("any primary, special, or general election" is covered), and the more fundamental point that local political units that do not conduct registration may conduct or control state and national elections. Our Brother STEVENS' further suggestion that an adventitious limitation on the reach of § 5 is necessary because otherwise a deluge of trivial submissions will impair the preclearance function conjures a specter that is unsupported by the legislative record. Ironically, the statistical support for this theory is derived from the hearings conducted by a Congress that repeatedly manifested its understanding that § 5 applied to the voting changes of every political unit within each designated jurisdiction. Compare infra, at 133-134, with post, at 147-148, nn. 8-11.
14
The District Court relied upon the following excerpt from the legislative history:
"Where an entire State falls within . . . subsection [4(b)] so does each and every political subdivision within that State." H.R.Rep. No. 439, 89th Cong., 1st Sess., 25 (1965); see S.Rep. No. 162, 89th Cong., 1st Sess., pt. 3, 23 (1965), U.S.Code Cong. & Admin.News 1965, pp. 2437, 2456.
Of course, the District Court's assumption to the contrary notwithstanding, this statement does not establish that the only entities in designated States which are subject to § 5 are those that are either counties or the units that register voters. Indeed, since this statement also pertains to the scope of § 4(a), which clearly applies to all political units within covered jurisdictions, it is difficult to see how it can be relied upon to support a crippling interpretation of § 5.
15
The statutory terms of § 14(c)(2)—defining subdivision as a "county or parish" or as "any other subdivision of a State which conducts registration for voting"—can obviously refer to a geographic territory, and the usages of "political subdivision" in the Act and the legislative history leave no doubt but that it is in this sense that Congress used the term. The usage "in a political subdivision," which occurs in § 4(a) and in many other sections of the Act, see, e. g., 42 U.S.C. §§ 1973a(a)-(c) (1970 ed., Supp. V), would be nonsensical if "political subdivision" denoted only specific functional units of state government. And the legislative history eliminates any basis for doubt. Attorney General Katzenbach, whose understanding of the meaning of the term was intended to be embodied in § 14(c)(2), see Hearings on H.R. 6400 before Subcommittee No. 5 of the House Committee on the Judiciary, 89th Cong., 1st Sess., 121 (1965), repeatedly stated in the course of his testimony before the committees of Congress that "political subdivision" referred to areas of nondesignated States. See, e. g., id., at 21, 51, 53, and 78; Hearings on S. 1564 before the Committee on the Judiciary, 89th Cong., 1st Sess., 44 (1965).
16
The statutory terms support the view that the § 14(c)(2) definition was not intended to impose any limitations on the reach of the Act outside the designation process. Under § 14(c)(2)'s terms, counties are "political subdivisions" whether or not they register voters. While the automatic inclusion of counties within the definition of "political subdivision" would be difficult to square with any rational policy were § 14(c)(2) intended to identify the governmental entities that may be subject to the Act's special duties, the inclusion can be readily explained on the assumption that the only limitation § 14(c)(2) imposes on the Act pertains to the areas that may be designated for coverage.
17
Our Brother STEVENS' dissent misconceives the basis for the conclusion that § 5's terms are susceptible of an interpretation under which Sheffield is covered. We believe that the term "State" can bear a meaning that includes all state actors within it and that, given the textual interrelationship between § 5 and § 4(a) and the related purposes of the two provisions, such a reading is a natural one.
18
Our Brother STEVENS' dissent quotes a number of statements from the legislative history of the original statute which, in his view, establish that Congress believed that § 14(c)(2) would prevent federal interference with the affairs of "minor, local governmental units." See post, at 142-143. While these statements considered in isolation provide colorable support for the dissent's conclusion, the statutory background in its entirety makes it abundantly clear that these fragments from the legislative history cannot support such a broad assertion as to the congressional intent. The dissent's interpretation of these statements necessarily forces one to take a position that not even the dissent is willing to adopt (because it is flatly inconsistent with the statutory terms): i. e., that § 4(a)'s suspension of literacy tests does not apply to minor, local governmental units. As demonstrated, see supra, at 128-129, the statements quoted in the dissent can only be understood as further support for our conclusion that Congress' exclusive objective in § 14(c)(2) was to limit the jurisdictions which may be separately designated for coverage under § 4(b).
19
The record reflects that between August 6, 1965, and May 1, 1977, the Attorney General received more than 8,100 proposed voting changes from political units—other than counties or parishes—that did not register voters. While our Brother STEVENS' dissent is correct that few of these occurred during the first few years of the Act's existence, post, at 147 n. 8, it does not deny that even during these years the Attorney General received and processed submissions involving proposed changes of political units that were not counties and that did not register voters. In any case, when the Attorney General made § 5 an administrative priority, he unambiguously indicated his view that it applies to all political units in covered jurisdictions. The dissent's suggestion that the Attorney General's reading was somehow precipitated by this Court's "creative" interpretation of § 5 in Allen, overlooks the f ct that the Attorney General filed a brief in Allen urging the position that this Court adopted. In short, the Attorney General's administrative interpretation of § 5 is "contemporaneous" as that term is used in our decisions. See, e. g., Nashville Gas Co. v. Satty, 434 U.S. 136, 142 n. 4, 98 S.Ct. 347, 351, 54 L.Ed.2d 356 (1977).
20
See testimony of Attorney General Katzenbach, in Hearings on H.R. 6400, supra, n. 9, at 9 et seq., and testimony of Attorney General Katzenbach in Hearings on S. 1564 before the Senate Committee on the Judiciary, 89th Cong., 1st Sess., 14 et seq. (1965).
21
The Attorney General's regulations also indicate his view that § 5, like § 4(a), applies territorially: "Section 5 . . . prohibits the enforcement in any jurisdiction covered by section 4(a) [of any voting change]." 28 CFR § 51.1 (1976) (emphasis supplied).
22
The Attorney General's statements and exhibits apprised the Congress that the Attorney General had treated cities like Sheffield as covered by § 5. See also 1975 Senate Hearings 563-564 (discussion of § 5 submission from Montgomery, Ala.), and 568 (statement of Justice Department official that there was no need to clarify the Act to make certain that city council redistricting is covered).
23
See Tex.Elec.Code Ann., Art. 5.09 (Vernon 1967); Art. 5.13a (Vernon Supp. 1978).
24
See S.C.Code §§ 7-5-10, 7-5-30, 7-5-610 to 7-5-630 (1977).
25
Our Brother STEVENS' dissent contends that the unambiguous legislative history of the 1970 and 1975 Acts of Congress is not a "reliable guid[e] to what Congress intended in 1965 when it drafted the relevant statutory language." Post, at 149. With respect, the dissent asks and answers the wrong question. It cannot be gainsaid that we are construing, not the 1965 enactment of § 5, but a 1975 re-enactment.
26
In this connection it bears noting that the Attorney General's regulations provide that such letters should clearly set forth the proposed change affecting voting for which clearance is being sought. See 28 CFR §§ 51.5, 51.10(a) (1976).
27
In pertinent part, this provides that, "regarding a change as to WHICH APPROVAL BY REFERENDUM . . . IS REQUIRED . . ., the Attorney General may consider and issue a decision concerning the change prior to the referendum . . . if all other action necessary for adoption has been taken." Since it quite frequently will be the case that it will not be possible to determine whether a voting change has the purpose or effect of racial discrimination until all the variables of the change are known, there is no question but that this regulation is a reasonable means of administering the Act and, as such, is valid. See Georgia v. United States, 411 U.S. 526, 536-538, 93 S.Ct. 1702, 1708-1709, 36 L.Ed.2d 472 (1973).
28
We observe that the District Court's conclusion that the Attorney General should have known that at-large elections were required by law is itself questionable for two reasons. First, at the time of the approval of the referendum, it is doubtful that the Attorney General could have been charged with knowledge of the particular provision of Alabama requiring at-large councilmanic elections in cities like Sheffield. The City's March 20, 1975, letter had not cited Ala.Code, Tit. 37, § 426 (Supp.1973), which was in Art. 4 of Chapter 8 of Title 37. See n. 3, supra. The District Court's conclusion that the Attorney General should have known of this provision of Alabama law would be sustainable only if we were to take the extreme position that the Attorney General should be charged with notice of all provisions of local law. Second, even had the Attorney General been aware of § 426 there was reason to believe that, regardless of any statutory requirement, the City would adopt a system of election directly by ward if the referendum passed. Both the Alabama Attorney General's 1968 opinion, see n. 3, supra, and the City's March 20, 1975, letter, see n. 4, supra, stated that Sheffield would return to the 1912 system, in which councilmen were elected by each of the four wards, if the referendum were to pass. Indeed, the record reflects that the City had some difficulty persuading the Attorney General that state law even permitted it to adopt an at-large system. Thus, it seems that the District Court's conclusion that the Attorney General must have known that at-large elections were required by law is itself questionable.
*
See Allen v. State Board of Elections, 393 U.S. 544, 595, 89 S.Ct. 817, 846, 22 L.Ed.2d 1 (Black, J., dissenting) (1969); Georgia v. United States, 411 U.S. 526, 545, 93 S.Ct. 1702, 1713 (1973) (Powell, J., dissenting). My reservations relate not to the commendable purpose of the Act but to its selective coverage of certain States only and to the instrusive preclearance procedure.
I agree with much of what Mr. Justice STEVENS says in dissent, but unless the Court is willing to overrule Allen and its progeny—a step it has refrained from taking—I view those decisions as foreshadowing if not compelling the Court's judgment today. I nevertheless record my total agreement with Mr. Justice STEVENS' view of the Act's preclearance requirement, post, at 141.
1
The second question is, I believe, correctly answered in Part III of the Court's opinion.
2
See ante, at 112-113 n. 1.
3
Hearings on S. 407 et al. before the Subcommittee on Constitutional Rights of the Senate Committee on the Judiciary, 94th Cong., 1st Sess., 536 (1975 Senate Hearings) (testimony of J. Stanley Pottinger, Assistant Attorney General, Civil Rights Division). See also South Carolina v. Katzenbach, 383 U.S. 301, 358, 86 S.Ct. 803, 833, 15 L.Ed.2d 769 (Black, J., concurring and dissenting); Georgia v. United States, 411 U.S. 526, 545, 93 S.Ct. 1702, 1713, 36 L.Ed.2d 472 (Powell, J., dissenting).
4
The Court suggests that the term "political subdivision" refers to a geographic area and not to a political unit. Ante, at 128 n. 15. But this argument is repudiated by the plain language of the statute. Section 5 reads:
"Whenever a State or political subdivision . . . shall enact or seek to administer any voting qualification . . . ." (Emphasis added.)
Since laws are enacted and administered by political units, rather than geographic territories, the term necessarily has the former meaning as it is used in this section.
This conclusion is confirmed by other language in § 5: "[S]uch State or subdivision may institute an action . . . Provided, That such qualification . . . may be enforced . . . if . . . submitted by the chief legal officer or other appropriate official of such State or subdivision . . . ." Geographic territories do not institute actions or employ legal officers; but political units do.
5
Ignoring the legislative history which explains why § 14(c)(2) was inserted in the Act, the Court instead focuses on a statement by Senator Talmadge referring to § 5's application to cities. Ante, at 130-131. This statement, however, offers little support for the Court's view since Georgia, Senator Talmadge's home State, does have voter registration by cities. Ga.Code 34A-501 (1975).
6
The Court reasons that since § 4(a) was intended to apply throughout a designated State, § 5's preclearance requirement must have the same reach. This analysis is unpersuasive for three reasons. First, it does not give sufficient weight to the clear differences in statutory language between § 4(a) and § 5. See n. 4, supra. When Congress wanted the term "State" to have a geo raphic reach, it was clearly capable of expressing that intent, as it did in § 4(a). Its failure to do so in § 5 must be accorded some significance, especially when coupled with § 14(c)(2)'s general purpose of excluding small political units from the Act's reach. Second, it does not adequately assess the reason for the inclusion of the § 14(c)(2) definition of "political subdivision." Third, the Court has already recognized that § 5 was not intended to provide a remedy for every wrong committed in a State in connection with voting.
"It is irrelevant that the coverage formula excludes certain localities which do not employ voting tests and devices but for which there is evidence of voting discrimination by other means. Congress had learned that widespread and persistent discrimination in voting during recent years has typically entailed the misuse of tests and devices, and this was the evil for which the new remedies were specifically designed. At the same time, through §§ 3, 6(a), and 13(b) of the Act, Congress strengthened existing remedies for voting discrimination in other areas of the country. Legislation need not deal with all phases of a problem in the same way, so long as the distinctions drawn have some basis in practical experience." South Carolina v. Katzenbach, 383 U.S., at 330-331, 86 S.Ct., at 820.
7
The following dialogue is illustrative:
"The CHAIRMAN. The bill also refers to 'political subdivisions.' How far down the political scale does that go?
"Mr. KATZENBACH. I believe that the term 'political subdivision' used in this bill . . . really is aimed at getting people registered.
"The CHAIRMAN. For example, in New York. . . . I take it that an election district would be deemed a political subdivision?
"Mr. KATZENBACH. I think that is possible, Mr. Chairman, but frankly, you are more familiar with how registration is accomplished in New York than I am. I know how it is accomplished or not accomplished in Alabama.
"The CHAIRMAN. What would be the lowest possible political unit in the scale?
"Mr. KATZENBACH. What is the area in which registration is done in New York? I am not familiar with that, Mr. Chairman." 1965 House Hearings 21.
Similar testimony was referred to by the Court in Allen v. State Board of Elections, 393 U.S. 544, 564, 89 S.Ct. 817, 831, 22 L.Ed.2d 1.
The fact that Allen broadly construed the Act to apply to gerrymandering and other techniques which "dilute" the weight of some votes cannot obscure the fact that voter registration was the central concern of the Act when it was passed in 1965. Indeed, Allen's creative interpretation of the statute was so dramatic that it was given only prospective application. See id., at 572, 89 S.Ct., at 835.
8
While approximately 6,400 voting change requests have been submitted since the Act was passed, the submissions have not been evenly divided among the 13 years of the Act's existence. Approximately 5,800 of the 6,400 submitted changes were made from 1971 on. See 1975 Senate Hearings 597; Jurisdictional Statement 13-14. The figure of 8,100 cited by the Court, ante, at 131 n. 19, supra, refers to the number of voting changes included within the submissions.
9
Assistant Attorney General Pottinger testified in 1975 that "Section 5 has yet to be fully implemented." 1975 Senate Hearings 583. In fact, the Attorney General has had to ask the FBI to conduct investigations to help determine whether local authorities have made any changes in voting procedures that are not reflected in state statutes. Ibid.
10
Prior to the Allen decision in 1969, only three States had submitted any voting changes to the Attorney General for approval, for a total of 323 submissions during a five-year period. Id., at 597. There was a dramatic leap in submissions between 1970 and 1971, from 255 to 1,118. Ibid. These figures reveal the obvious impact that Allen and Perkins v. Matthews, 400 U.S. 379, 91 S.Ct. 431, 27 L.Ed.2d 476, have had on the Attorney General's implementation of § 5.
11
The sheer number and insignificance of the changes in voting procedures in local political units that must, under today's decision, be submitted to the country's highest legal officer suggest that Congress may have limited the reach of § 5 in order to insure the preclearance requirement's effectiveness and solemnity. Paradoxically, the Court's effort to eliminate any emedial "gaps" in the statute may reduce the preclearance requirement to a trivial, though burdensome, administrative provision. As would be expected, almost all submissions are routinely accepted by the Attorney General. See 1975 Senate Hearings 582.
12
In response to this dissenting opinion, the Court has suggested that in focusing on the language of § 14(c)(2) and in searching through the 1965 legislative history, I have sought an answer to the wrong question because we are construing the 1975, rather than the 1965, Act. Ante, at 135 n. 25. However, the question whether the Act was "re-enacted" in 1975 is of only technical significance. Section 5 would have continued in operation beyond 1975 for States such as Alabama even without the 1975 extension. See comments of Senator Tunney, 121 Cong.Rec. 24706 (1975). More importantly, the 1975 Congress made no change in the definition of "political subdivision" and no one called its attention to any aspect of the issue decided today. The question I have tried to answer is what Congress actually intended to accomplish by its definition of the term "political subdivision." That definition was, perhaps, the product of a legislative compromise, and the resulting statutory language may be "crippling" to the Court's reading of the full remedial purposes of the statute. But we have an obligation to respect the product of legislative compromise as well as policy decisions we wholeheartedly endorse.
| 12
|
435 U.S. 213
98 S.Ct. 1024
55 L.Ed.2d 225
Max CLELAND, Administrator of the Veterans Administration, et al.v.NATIONAL COLLEGE OF BUSINESS.
No. 77-716.
March 20, 1978.
PER CURIAM.
1
The question presented is whether the Due Process Clause of the Fifth Amendment prohibits Congress from restricting the educational courses for which veterans' benefits are available under the GI Bill1 without including identical course limitations in other federal educational assistance programs.
2
A veteran seeking educational assistance benefits must file an application with the Administrator of the Veterans' Administration. Before approving the application, the Administrator must determine whether the veteran's proposed educational program satisfies various requirements, including the so-called 85-15 requirement and the two-year rule.
3
The 85-15 requirement requires the Administrator to disapprove an application if the veteran enrolls in a course in which more than 85% of the students "are having all or part of their tuition, fees, or other charges paid to or for them by the educational institution, by the Veterans' Administration . . . and/or by grants from any Federal agency."2 The Administrator, however, may waive the requirement if he determines that it would be in the interest of both the veteran and the Federal Government.
4
The two-year rule requires the Administrator to disapprove the enrollment of an eligible veteran in a course that has been offered by a covered educational institution for less than two years. The rule applies to courses offered at branches and extensions of proprietary educational institutions located beyond the normal commuting distance of the institution.3
5
Appellee National College of Business is a proprietary educational institution which has extension programs in several States. Most of its courses have a veteran enrollment of 85% or more. Appellee is therefore affected by both the 85-15 requirement and the two-year rule.
6
Appellee brought this action in the United States District Court for the District of South Dakota, challenging the constitutionality of the restrictions.4 Appellee contended that the restrictions arbitrarily denied otherwise eligible veterans of educational benefits and denied veterans equal protection because they were not made applicable to persons whose educations were being subsidized under other federal educational assistance programs.5 The District Court held the 85-15 requirement and the two-year rule unconstitutional and permanently enjoined their enforcement. 433 F.Supp. 605 (1977). We reverse.6
7
* The course restrictions challenged by appellee evolved in response to problems experienced in the administration of earlier versions of the veterans' educational assistance program. When extension of the World War II GI Bill to veterans of the Korean war was under consideration by Congress in 1952, the House Select Committee to Investigate Educational Training and Loan Guarantee Programs under the GI Bill studied the problems that had arisen under the earlier program. The Committee's work led to passage of the first version of the 85-15 requirement, which applied only to nonaccredited courses not leading to a college degree that were offered by proprietary institutions. Pub.L. 82-550, 66 Stat. 667.
8
The purpose of the requirement is not disputed:
9
"Congress was concerned about schools which developed courses specifically designed for those veterans with available Federal moneys to purchase such courses. . . . The ready availability of these funds obviously served as a strong incentive to some schools to enroll eligible veterans. The requirement of a minimum enrollment of students not wholly or partially subsidized by the Veterans' Administration was a way of protecting veterans by allowing the free market mechanism to operate.
10
"The price of the course was also required to respond to the general demands of the open market as well as to those with available Federal moneys to spend. A minimal number of nonveterans were required to find the course worthwhile and valuable or the payment of Federal funds to veterans who enrolled would not be authorized." S.Rep.No. 94-1243, p. 88 (1976) (Senate Report); U.S.Code Cong. & Admin.News 1976, p. 5310.
11
These same considerations prompted extension of the requirement in 1974 to courses not leading to a standard college degree offered by accredited institutions. § 203(3) of Pub.L. 93-508, 88 Stat. 1582. See also Senate Report 88.
12
In 1976 the 85-15 requirement was further extended to courses leading to a standard college degree. The Veterans' Administration had found increased recruiting by institutions within this category "directed exclusively at veterans." In recommending approval of the extension, the Senate Committee on Veterans' Affairs agreed with the Veterans' Administration that " 'if an institution of higher learning cannot attract sufficient nonveteran and nonsubsidized students to its programs, it presents a great potential for abuse of our GI educational programs.' " Id., at 89, U.S.Code Cong. & Admin.News 1976, p. 5311. The Committee further noted that, in view of the magnitude of the expenditures under the GI Bill, it was essential "to limit those situations in which substantial abuse could occur." Ibid. Finally, the Committee emphasized that "the requirement that no more than 85 percent of the student body be in receipt of VA benefits is not onerous particularly given the fact that under today's GI Bill . . . veterans do not comprise a major portion of those attending institutions of higher learning . . .." Ibid.7
13
The two-year rule is also a product of Congress' judgment regarding potential abuses of the veterans' educational assistance program based upon experience with administration of earlier versions of the GI Bill. Thus, following World War II schools and courses developed "which were almost exclusively aimed at veterans eligible for GI bill payments." Id., at 128, U.S.Code Cong. & Admin.News 1976, p. 5350. In response, the first version of the rule was enacted. It barred the payment of benefits to veterans attending institutions in operation less than one year. Pub.L. 81-266, 63 Stat. 653. As with the 85-15 requirement, the rule "was a device intended by Congress to allow the free market mechanism to operate and weed out those institutions [which] could survive only by the heavy influx of Federal payments." Senate Report 128; U.S.Code Cong. & Admin.News 1976, p. 5350.
14
Following the Korean war, Congress amended the rule to cover courses that had not been in operation for at least two years. § 227 of the Korean Conflict GI Bill (Veterans' Readjustment Assistance Act of 1952), Pub.L. 82-550, 66 Stat. 667. In its report accompanying the amendment, the House Veterans' Affairs Committee characterized the rule as "a real safeguard to assure sound training for the veteran at reasonable cost, by seasoned institutions" and observed that had the rule been in effect during the administration of the World War II GI Bill "considerable savings would have been realized and . . . much better training would have resulted in many areas." H.R.Rep.No. 1943, 82d Cong., 2d Sess., 30 (1952).
15
In 1976, Congress again amended the two-year rule, making it applicable to, among other institutions, branches of private institutions such as appellee that are located beyond the normal commuting distance from the main institution. The considerations underlying the extended coverage are fully set forth in the Report of the Senate Committee on Veterans' Affairs accompanying the legislation. Senate Report, supra. There had been a "spectacular" rise in both the number of institutions establishing branch campuses and in the veteran enrollment at those extensions. These institutions were entering into "extensive recruiting contracts directed almost exclusively at veterans." S.Rep.No. 129, U.S.Code Cong. & Admin.News 1976, p. 5351. In a report dealing with the problems generated by these developments, the Veterans' Administration had stated:
16
" '[A] number of instances have been brought to our attention which represent abuse of our educational programs. Some of these cases involved contracting between nonprofit schools and profit schools or organizations whereby courses designed by the latter are offered by the non-profit, accredited school on a semester- or quarter-hour basis. In others, there are arrangements between non-profit, accredited schools and outside profit firms whereby the latter, for a percentage of the tuition payment, perform recruiting services primarily for the establishing of these branch locations for the school. These recruiting efforts are aimed almost exclusively at veterans.' " Ibid.8
17
In recommending adoption of the amendment, the Committee concluded that the situation presented "great potential for abuse and in several instances that potential appear[ed] to have been realized." Id., at 130, U.S.Code Cong. & Admin.News 1976, p. 5352.
II
18
As the legislative history demonstrates, the 85-15 requirement and the two-year rule are valid exercises of Congress' power. Experience with administration of the veterans' educational assistance program since World War II revealed a need for legislation that wou d minimize the risk, that veterans' benefits would be wasted on educational programs of little value. It was not irrational for Congress to conclude that restricting benefits to established courses that have attracted a substantial number of students whose educations are not being subsidized would be useful in accomplishing this objective and "prevent charlatans from grabbing the veteran's education money." Both restrictions are based upon the rational assumption that if "the free market mechanism [were allowed] to operate," it would "weed out those institutions [which] could survive only by the heavy influx of Federal payments." Id., at 128; U.S.Code Cong. & Admin.News 1976, p. 5350. The otherwise reasonable restrictions are not made irrational by virtue of their absence from other federal educational assistance programs. They were imposed in direct response to problems experienced in the administration of this country's GI bills. There is no indication that identical abuses have been encountered in other federal grant programs. In any event, the Constitution does not require Congress to detect and correct abuses in the administration of all related programs before acting to combat those experienced in one. For "[e]vils in the same field may be of different dimensions and proportions, requiring different remedies. Or so the legislature may think. Or the reform may take one step at a time, addressing itself to the phase of the problem which seems most acute to the legislative mind. The legislature may select one phase of one field and apply a remedy there, neglecting the others. The prohibition of the Equal Protection Clause [generally] goes no further . . . ." Williamson v. Lee Optical Co., 348 U.S. 483, 489, 75 S.Ct. 461, 465, 99 L.Ed. 563 (1955). (Citations omitted.)
19
When tested by their rationality, therefore, the 85-15 requirement and the two-year rule are plainly proper exercises of Congress' authority. While agreeing that the restrictions were rationally related to legitimate legislative objectives, the District Court concluded that veterans' educational benefits approach "fundamental and personal rights" and therefore a more "elevated standard of review" was appropriate. Subjecting the 85-15 and two-year requirements to this heightened scrutiny, the court observed that they were not precisely tailored to prevent federal expenditures on courses of little value. Since some quality courses would be affected by the restrictions, the court held them unconstitutional.
20
The District Court's error was not its recognition of the importance of veterans' benefits but its failure to give appropriate deference to Congress' judgment as to how best to combat abuses that had arisen in the administration of those benefits. Legislative precision has never been constitutionally required in cases of this kind.9
21
"The basic principle that must govern an assessment of any constitutional challenge to a law providing for governmental payments of monetary benefits is well established. Governmental decisions to spend money to improve the general public welfare in one way and not another are 'not confided to the courts. The discretion belongs to Congress, unless the choice is clearly wrong, a display of arbitrary power, not an exercise of judgment.' . . . In enacting legislation of this kind a government does not deny equal protection 'merely because the classifications made by its laws are imperfect. If the classification has some "reasonable basis," it does not offend the Constitution simply because the classification "is not made with mathematical nicety or because in practice it results in some inequality." ' Dandridge v. Williams, 397 U.S. 471, 485, 90 S.Ct. 1153, 1161, 25 L.Ed.2d 491." Mathews v. De Castro, 429 U.S. 181, 185, 97 S.Ct. 431, 434, 50 L.Ed.2d 389 (1976).
22
Since it was rational for Congress to conclude that established courses with a substantial enrollment of nonsubsidized students were more likely to be quality courses, the 85-15 andtwo-year requirements satisfy "the constitutional test normally applied in cases like this." Califano v. Jobst, 434 U.S. 47, 54, 98 S.Ct. 95, 99, 54 L.Ed.2d 228 (1977).
23
The judgment is reversed.
24
It is so ordered.
25
Mr. Justice MARSHALL.
26
I believe that substantial constitutional questions are presented by appellee's due process claims, see ante, at 215 n. 6, as well as by its equal protection claim. I would therefore note probable jurisdiction and set this case for oral argument.
1
The various provisions dealing with veterans' benefits are contained in Title 38 of the United States Code. Title 38 U.S.C. § 1651 et seq. relate specifically to the veterans' educational assistance program. While the term GI Bill is often used to describe veteran ' benefits legislation generally, for purposes of this opinion it refers to legislation dealing specifically with veterans' educational assistance benefits.
2
38 U.S.C. § 1673(d) (1976 ed.), as amended by § 205 of Pub.L. 94-502, 90 Stat. 2387. While this appeal was pending the 85-15 requirement was amended in several respects. See § 305(a) of the GI Bill Improvement Act of 1977, Pub.L. 95-202, 91 Stat. 1442. However, the amendments have not made the requirement inapplicable to appellee's students.
3
See 38 U.S.C. § 1789 (1976 ed.), as amended by § 509(b) of Pub.L. 94-502, 90 Stat. 2401. The rule was recently amended by § 305(a) of the GI Bill Improvement Act of 1977, supra. The amendment authorizes the Administrator to waive the two-year rule if he determines that it would be in the interest of the veteran and the Federal Government. The Administrator, however, does not suggest that the rule will be waived with respect to appellee's students.
4
Other District Courts have upheld the challenged restrictions. See, e. g., Fielder v. Cleland, 433 F.Supp. 115 (ED Mich.1977); Rolle v. Cleland, 435 F.Supp. 260 (RI 1977).
5
Joining appellee as plaintiffs in the District Court were four veterans who were students or former students at the National College of Business. The court held they lacked standing because they had not demonstrated how they would be affected by the restrictions. The court, however, held that appellee, which would suffer serious economic harm from application of the restrictions to its students, had standing under the jus tertii doctrine to assert the constitutional claims of its students. Neither of the court's standing rulings is challenged in this Court.
6
Appellee advanced several other theories of unconstitutionality in the District Court and reasserts two of them in this Court: (1) the restrict ons violate substantive due process because they interfere with freedom of educational choice, and (2) they violate procedural due process because the affected veterans are not afforded a hearing on the question whether the requirements should be applied or waived. The District Court characterized these contentions as less meritorious than the equal protection claim. We agree. Neither raises a substantial constitutional question.
7
The 1976 amendments also changed the computation base of the 85-15 requirement, for the first time including students subsidized under other federal assistance programs within the 85% calculation. This change, however, was recently modified by Congress to exclude from the 85% quota students receiving federal assistance from sources other than the Veterans' Administration, until such time as the Administrator has completed a study regarding the need for and feasibility o including them within the 85% computation. § 305(a) of the GI Bill Improvement Act of 1977. This change has no bearing on this case because appellee has a veterans enrollment of more than 85%.
8
The Administrator amplified on these problems in testimony before Congress. See Senate Report 129-130.
9
Appellee contends that the challenged restrictions will completely deprive some veterans—those who live in areas where there are no programs which satisfy the two requirements—of veterans' educational assistance. While the restrictions on their face simply channel veterans toward courses which Congress has determined are more likely to be worthwhile, they may in fact operate to make benefits functionally unavailable to some veterans not living in close proximity to schools offering qualified programs and unwilling or unable to move to take advantage of the federal assistance. Nevertheless, the fact that Congress' judgment may deprive some veterans of the opportunity to take full advantage of the benefits made available to veterans by Congress is not a sufficient basis for greater judicial oversight of that judgment. As the Court noted in San Antonio Independent School District v. Rodriguez, 411 U.S. 1, 35, 93 S.Ct. 1278, 1297, 36 L.Ed.2d 16 (1973), "the undisputed importance of education will not alone cause this Court to depart from the usual standard for reviewing . . . social and economic egislation."
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435 U.S. 247
98 S.Ct. 1042
55 L.Ed.2d 252
John D. CAREY et al., Petitioners,v.Jarius PIPHUS, etc., et al.
No. 76-1149.
Argued Dec. 6, 1977.
Decided March 21, 1978.
Syllabus
In actions by public school students under 42 U.S.C. § 1983 against school officials, wherein the students were found to have been suspended from school without procedural due process, the students, absent proof of actual injury, are entitled to recover only nominal damages. Pp. 253-267.
(a) The basic purpose of a § 1983 damages award is to compensate persons for injuries caused by the deprivation of constitutional rights. Pp. 254-257.
(b) To further the purpose of § 1983, the rules governing compensation for injuries caused by the deprivation of constitutional rights should be tailored to the interests protected by the particular right in question, just as the common-law rules of damages were defined by the interests protected in the various branches of tort law. Pp. 257-259.
(c) Mental and emotional distress caused by the denial of procedural due process cannot be presumed to occur, as in the case of presumed damages in the common law of defamation per se, but, although such distress is compensable, neither the likelihood of such injury nor the difficulty of proving it is so great as to justify awarding compensatory damages without proof that such injury actually was caused. Pp. 259-264.
(d) The issues of what elements and prerequisites for recovery of damages are appropriate to compensate for injuries caused by the deprivation of constitutional rights must be considered with reference to the nature of the interests protected by the particular right in question. Therefore, cases dealing with awards of damages for injuries caused by the deprivation of constitutional rig ts other than the right to procedural due process, are not controlling in this case. Pp. 264-265.
(e) Because the right to procedural due process is "absolute" in the sense that it does not depend upon the merits of a claimant's substantive assertions, and because of the importance to organized society that procedural due process be observed, the denial of procedural due process should be actionable for nominal damages without proof of actual injury, and therefore if it is determined that the suspensions of the students in this case were justified, they nevertheless will be entitled to recover nominal damages. Pp. 266-267.
545 F.2d 30, reversed and remanded.
Earl B. Hoffenberg, Chicago, Ill., for petitioners.
John S. Elson, Chicago, Ill., for respondents.
Mr. Justice POWELL delivered the opinion of the Court.
1
In this case, brought under 42 U.S.C. § 1983, we consider the elements and prerequisites for recovery of damages by students who were suspended from public elementary and secondary schools without procedural due process. The Court of Appeals for the Seventh Circuit held that the students are entitled to recover substantial nonpunitive damages even if their suspensions were justified, and even if they do not prove that any other actual injury was caused by the denial of procedural due process. We disagree, and hold that in the absence of proof of actual injury, the students are entitled to recover only nominal damages.
2
* Respondent Jarius Piphus was a freshman at Chicago Vocational High School during the 1973-1974 school year. On January 23, 1974, during school hours, the school principal saw Piphus and another student standing outdoors on school property passing back and forth what the principal described as an irregularly shaped cigarette. The principal approached the students unnoticed and smelled what he believed was the strong odor of burning marihuana. He also saw Piphus try to pass a packet of cigarette papers to the other student. When the students became aware of the principal's presence, they threw the cigarette into a nearby hedge.
3
The principal took the students to the school's disciplinary office and directed the assistant principal to impose the "usual" 20-day suspension for violation of the school rule against the use of drugs.1 The students protested that they had not been smoking marihuana, but to no avail. Piphus was allowed to remain at school, although not in class, for the remainder of the school day while the assistant principal tried, without success, to reach his mother.
4
A suspension notice was sent to Piphus' mother, and a few days later two meetings were arranged among Piphus, his mother, his sister, school officials, and representatives from a legal aid clinic. The purpose of the meetings was not to determine whether Piphus had been smoking arihuana, but rather to explain the reasons for the suspension. Following an unfruitful exchange of views, Piphus and his mother, as guardian ad litem, filed suit against petitioners in Federal District Court under 42 U.S.C. § 1983 and its jurisdictional counterpart, 28 U.S.C. § 1343, charging that Piphus had been suspended without due process of law in violation of the Fourteenth Amendment. The complaint sought declaratory and injunctive relief, together with actual and punitive damages in the amount of $3,000.2 Piphus was readmitted to school under a temporary restraining order after eight days of his suspension.
5
Respondent Silas Brisco was in the sixth grade at Clara Barton Elementary School in Chicago during the 1973-1974 school year. On September 11, 1973, Brisco came to school wearing one small earring. The previous school year the school principal had issued a rule against the wearing of earrings by male students because he believed that this practice denoted membership in certain street gangs and increased the likelihood that gang members would terrorize other students. Brisco was reminded of this rule, but he refused to remove the earring, asserting that it was a symbol of black pride, not of gang membership.
6
The assistant principal talked to Brisco's mother, advising her that her son would be suspended for 20 days if he did not remove the earring. Brisco's mother supported her son's position, and a 20-day suspension was imposed. Brisco and his mother, as guardian ad litem, filed suit in Federal District Court under 42 U.S.C. § 1983 and 28 U.S.C. § 1343, charging that Brisco had been suspended without due process of law in violation of the Fourteenth Amendment.3 The complaint sought declaratory and injunctive relief, together with actual and punitive damages in the amount of $5,000.4 Brisco was readmitted to school during the pendency of proceedings for a preliminary injunction after 17 days of his suspension.
7
Piphus' and Brisco's cases were consolidated for trial and submitted on stipulated records. The District Court held that both students had been suspended without procedural due process.5 It also held that petitioners were not entitled to qualified immunity from damages under the second branch of Wood v. Strickland, 420 U.S. 308, 95 S.Ct. 992, 43 L.Ed.2d 214 (1975), because they "should have known that a lengthy suspension without any adjudicative hearing of any type" would violate procedural due process. App. to Pet. for Cert. A14.6 Despite these holdings, the District Court declined to award damages because:
8
"Plaintiffs put no evidence in the record to qualify their damages, and the record is completely devoid of any evidence which could even form the basis of a speculative inference measuring the extent of their injuries. Plaintiffs' claims for damages therefore fail for complete lack of proof." Ibid.
9
The court also stated that the students were entitled to declaratory relief and to deletion of the suspensions from their school records, but for reasons that are not apparent the court failed to enter an order to that effect. Instead, it simply dismissed the complaints. No finding was made as to whether respondents would have been suspended if they had received procedural due process.
10
On respondents' appeal, the Court of Appeals reversed and remanded. 545 F.2d 30 (1976). It first held that the District Court erred in not granting declaratory and injunctive relief. It also held that the District Court should have considered evidence submitted by respondents after judgment that tended to prove the pecuniary value of each day of school that they missed while suspended. The court said, however, that respondents would not be entitled to recover damages representing the value of missed school time if petitioners showed on remand "that there was just cause for the suspension[s] and that therefore [respondents] would have been suspended even if a proper hearing had been held." Id., at 32.
11
Finally, the Court of Appeals held that even if the District Court found on remand that respondents' suspensions were justified, they would be entitled to recover substantial "nonpunitive" damages simply because they had been denied procedural due process. Id., at 31. Relying on its earlier decision in Hostrop v. Board of Junior College Dist. No. 515, 523 F.2d 569 (CA7 1975), cert. denied, 425 U.S. 963, 96 S.Ct. 1748, 48 L.Ed.2d 208 (1976), the court stated that such damages should be awarded "even if, as in the case at bar, there is no proof of individualized injury to the plaintiff, such as mental distress . . . ." 545 F.2d, at 31. We granted certiorari to consider whether, in an action under § 1983 for the deprivation of procedural due process, a plaintiff must prove that he actually was injured by the deprivation before he may recover substantial "nonpunitive" damages. 430 U.S. 964, 97 S.Ct. 1642, 52 L.Ed.2d 355 (1977).
II
12
Title 42 U.S.C. § 1983, Rev.Stat. § 1979, derived from § 1 of the Civil Rights Act of 1871, 17 Stat. 13, provides:
13
"Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, rivileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress."
14
The legislative history of § 1983, elsewhere detailed, e. g., Monroe v. Pape, 365 U.S. 167, 172-183, 81 S.Ct. 473, 476-481, 5 L.Ed.2d 492 (1961); id., at 225-234, 81 S.Ct. 504-509 (Frankfurter, J., dissenting in part); Mitchum v. Foster, 407 U.S. 225, 238-242, 92 S.Ct. 2151, 2159-2161, 32 L.Ed.2d 705 (1972), demonstrates that it was intended to "[create] a species of tort liability" in favor of persons who are deprived of "rights, privileges, or immunities secured" to them by the Constitution. Imbler v. Pachtman, 424 U.S. 409, 417, 96 S.Ct. 984, 996, 47 L.Ed.2d 128 (1976).
15
Petitioners contend that the elements and prerequisites for recovery of damages under this "species of tort liability" should parallel those for recovery of damages under the common law of torts. In particular, they urge that the purpose of an award of damages under § 1983 should be to compensate persons for injuries that are caused by the deprivation of constitutional rights; and, further, that plaintiffs should be required to prove not only that their rights were violated, but also that injury was caused by the violation, in order to recover substantial damages. Unless respondents prove that they actually were injured by the deprivation of procedural due process, petitioners argue, they are entitled at most to nominal damages.
16
Respondents seem to make two different arguments in support of the holding below. First, they contend that substantial damages should be awarded under § 1983 for the deprivation of a constitutional right whether or not any injury was caused by the deprivation. This, they say, is appropriate both because constitutional rights are valuable in and of themselves, and because of the need to deter violations of constitutional rights. Respondents believe that this view reflects accurately that of the Congress that enacted § 1983. Second, respondents argue that even if the purpose of a § 1983 damages award is, as petitioners contend, primarily to compensate persons for injuries that are caused by the deprivation of constitutional rights, every deprivation of procedural due process may be presumed to cause some injury. This presumption, they say, should relieve them from the necessity of proving that injury actually was caused.
A.
17
Insofar as petitioners contend that the basic purpose of a § 1983 damages award should be to compensate persons for injuries caused by the deprivation of constitutional rights, they have the better of the argument. Rights, constitutional and otherwise, do not exist in a vacuum. Their purpose is to protect persons from injuries to particular interests, and their contours are shaped by the interests they protect.
18
Our legal system's concept of damages reflects this view of legal rights. "The cardinal principle of damages in AngloAmerican law is that of compensation for the injury caused to plaintiff by defendant's breach of duty." 2 F. Harper & F. James, Law of Torts § 25.1, p. 1299 (1956) (emphasis in original).7 The Court implicitly has recognized the applicability of this principle to actions under § 1983 by stating that damages are available under that section for actions "found . . . to have been violative of . . . CONSTITUTIONAL RIGHTS AND TO HAVE CAUSED COMPENSABLE INJURY . . . ." wood v. Strickland, 420 U.S., at 319, 95 S.Ct., at 999 (emphasis supplied); see Codd v. Velger, 429 U.S. 624, 630-631, 97 S.Ct. 882, 885-886, 51 L.Ed.2d 92 (1977) (Brennan, J., dissenting); Adickes v. S. H. Kress & Co., 398 U.S. 144, 232, 90 S.Ct. 1598, 1641, 26 L.Ed.2d 142 (1970) (Brennan, J., concurring and dissenting); see also Bivens v. Six Unknown Fed. Narcotics Agents, 403 U.S. 388, 397, 91 S.Ct. 1999, 2005, 29 L.Ed.2d 619 (1971) (action for damages directly under Fourth Amendment); id., at 408-409, 91 S.Ct., at 2010-2011 (Harlan, J., concurring in judgment). The lower federal courts appear generally to agree that damages awards under § 1983 should be determined by the compensation principle.8
19
The Members of the Congress that enacted § 1983 did not address directly the question of damages, but the principle that damages are designed to compensate persons for injuries caused by the deprivation of rights hardly could have been foreign to the many lawyers in Congress in 1871.9 Two other sections of the Civil Rights Act of 1871 appear to incorporate this principle, and no reason suggests itself for reading § 1983 differently.10 To the extent that Congress intended that awards under § 1983 should deter the deprivation of constitutional rights, there is no evidence that it meant to establish a deterrent more formidable than that inherent in the award of compensatory damages. See Imbler v. Pachtman, 424 U.S., at 442, 96 S.Ct., at 1000-1001 (White, J., concurring in judgment).11
B
20
It is less difficult to conclude that damages awards under § 1983 should be governed by the principle of compensation than it is to apply this principle to concrete cases.12 But over the centuries the common law of torts has developed a set of rules to implement the principle that a person should be compensated fairly for injuries caused by the violation of his legal rights. These rules, defining the elements of damages and the prerequisites for their recovery, provide the appropriate starting point for the inquiry under § 1983 as well.13
21
It is not clear, however, that common-law tort rules of damages will provide a complete solution to the damages issue in every § 1983 case. In some cases, the interests protected by a particular branch of the common law of torts may parallel closely the interests protected by a particular constitutional right. In such cases, it may be appropriate to apply the tort rules of damages directly to the § 1983 action. See Adickes v. S. H. Kress & Co., 398 U.S., at 231-232, 90 S.Ct., at 1641, 26 L.Ed.2d 142 (Brennan, J., concurring and dissenting). In other cases, the interests protected by a particular constitutional right may not also be protected by an analogous branch of the common law torts. See Monroe v. Pape, 365 U.S., at 196, 81 S.Ct., at 488, and n. 5 (Harlan, J., concurring); id., at 250-251, 81 S.Ct., at 518 (Frankfurter, J., dissenting in part); Adickes v. S. H. Kress & Co., supra, at 232, 81 S.Ct., at 508 (Brennan, J., concurring and dissenting); Bivens v. Six Unknown Fed. Narcotic Agents, 403 .S., at 394, 91 S.Ct., at 2003; id., at 408-409, 91 S.Ct., at 2010, 2011 (Harlan, J., concurring in judgment). In those cases, the task will be the more difficult one of adapting common-law rules of damages to provide fair compensation for injuries caused by the deprivation of a constitutional right.
22
Although this task of adaptation will be one of some delicacy as this case demonstrates—it must be undertaken. The purpose of § 1983 would be defeated if injuries caused by the deprivation of constitutional rights went uncompensated simply because the common law does not recognize an analogous cause of action. Cf. Jones v. Hildebrant, 432 U.S. 183, 190-191, 97 S.Ct. 2283, 2288, 53 L.Ed.2d 209 (1977) (White, J., dissenting); Sullivan v. Little Hunting Park, 396 U.S. 229, 240, 90 S.Ct. 400, 406, 24 L.Ed.2d 386 (1969). In order to further the purpose of § 1983, the rules governing compensation for injuries caused by the deprivation of constitutional rights should be tailored to the interests protected by the particular right in question—just as the common-law rules of damages themselves were defined by the interests protected in the various branches of tort law. We agree with Mr. Justice Harlan that "the experience of judges in dealing with private [tort] claims supports the conclusion that courts of law are capable of making the types of judgment concerning causation and magnitude of injury necessary to accord meaningful compensation for invasion of [constitutional] rights." Bivens v. Six Unknown Fed. Narcotics Agents, supra, 403 U.S., at 409, 91 S.Ct., at 2011 (Harlan, J., concurring in judgment). With these principles in mind, we now turn to the problem of compensation in the case at hand.
C
23
The Due Process Clause of the Fourteenth Amendment provides:
24
"[N]or shall any State deprive any person of life, liberty, or property, without due process of law . . . ."
25
This Clause "raises no impenetrable barrier to the taking of a person's possessions," or liberty, or life. Fuentes v. Shevin, 407 U.S. 67, 81, 92 S.Ct. 1983, 1994, 32 L.Ed.2d 556 (1972). Procedural due process rules are meant to protect persons not from the deprivation, but from the mistaken or unjustified deprivation of life, liberty, or property. Thus, in deciding what process constitutionally is due in various contexts, the Court repeatedly has emphasized that "procedural due process rules are shaped by the risk of error inherent in the truth-finding process . . . ." Mathews v. Eldridge, 424 U.S. 319, 344, 96 S.Ct. 893, 907, 47 L.Ed.2d 18 (1976).14 Such rules "minimize substantively unfair or mistaken deprivations of" life, liberty, or property by enabling persons to contest the basis upon which a State proposes to deprive them of protected interests. Fuentes v. Shevin, supra, 407 U.S., at 81, 92 S.Ct., at 1994.
26
In this case, the Court of Appeals held that if petitioners can prove on remand that "[respondents] would have been suspended even if a proper hearing had been held," 545 F.2d, at 32, then respondents will not be entitled to recover damages to compensate them for injuries caused by the suspensions. The court thought that in such a case, the failure to accord procedural due process could not properly e viewed as the cause of the suspensions. Ibid.; cf. Mt. Healthy City Board of Ed. v. Doyle, 429 U.S. 274, 285-287, 97 S.Ct. 568, 575-576, 50 L.Ed.2d 471 (1977); Arlington Heights v. Metropolitan Housing Dev. Corp., 429 U.S. 252, 270-271, n. 21, 97 S.Ct. 555, 565-566, n. 21, 50 L.Ed.2d 450 (1977). The court suggested that in such circumstances, an award of damages for injuries caused by the suspensions would constitute a windfall, rather than compensation, to respondents. 545 F.2d, at 32, citing Hostrop v. Board of Junior College Dist. No. 515, 523 F.2d, at 579; cf. Mt. Healthy City Board of Ed. v. Doyle, supra, 429 U.S., at 285-286, 97 S.Ct., at 575. We do not understand the parties to disagree with this conclusion. Nor do we.15
27
The parties do disagree as to the further holding of the Court of Appeals that respondents are entitled to recover substantial—although unspecified—damages to compensate them for "the injury which is 'inherent in the nature of the wrong,' " 545 F.2d, at 31, even if their suspensions were justified and even if they fail to prove that the denial of procedural due process actually caused them some real, if intangible, injury. Respondents, elaborating on this theme, submit that the holding is correct because injury fairly may be "presumed" to flow from every denial of procedural due process. Their argument is that in addition to protecting against unjustified deprivations, the Due Process Clause also guarantees the "feeling of just treatment" by the government. Anti-Fascist Committee v. McGrath, 341 U.S. 123, 162, 71 S.Ct. 624, 643, 95 L.Ed. 817 (1951) (Frankfurter, J., concurring). They contend that the deprivation of protected interests without procedural due process, even where the premise for the deprivation is not erroneous, inevitably arouses strong feelings of mental and emotional distress in the individual who is denied this "feeling of just treatment." They analogize their case to that of defamation per se, in which "the plaintiff is relieved from the necessity of producing any proof whatsoever that he has been injured" in order to recover substantial compensatory damages. C. McCormick, Law of Damages § 116, p. 423 (1935).16
28
Petitioners do not deny that a purpose of procedural due process is to convey to the individual a feeling that the government has dealt with him fairly, as well as to minimize the risk of mistaken deprivations of protected interests. They go so far as to concede that, in a proper case, persons in respondents' position might well recover damages for mental and emotional distress caused by the denial of procedural due process. Petitioners' argument is the more limited one that such injury cannot be presumed to occur, and that plaintiffs at least should be put to their proof on the issue, as plaintiffs are in most tort actions.
29
We agree with petitioners in this respect. As we have observed in another context, the doctrine of presumed damages in the common law of defamation per se "is an oddity of tort law, for it allows recovery of purportedly compensatory damages without evidence of actual loss." Gertz v. Robert Welch, Inc., 418 U.S. 323, 349, 94 S.Ct. 2997, 3011-3012, 41 L.Ed.2d 789 (1974). The doctrine has been defended on the grounds that those forms of defamation that are actionable per se are virtually certain to cause serious injury to reputation, and that this kind of injury is extremely difficult to prove. See id., at 373, 376, 94 S.Ct., at 3023, 3025 (White, J., dissenting).17 Moreover, statements that are defamatory per se by their very nature are likely to cause mental and emotional distress, as well as injury to reputation, so there arguably is little reason to require proof of this kind of injury either.18 But these considerations do not support respondents' contention that damages should be presumed to flow from every deprivation of procedural due process.
30
First, it is not reasonable to assume that every departure from procedural due process, no matter what the circumstances or how minor, inherently is as likely to cause distress as the publication of defamation per se is to cause injury to reputation and distress. Where the deprivation of a protected interest is substantively justified but procedures are deficient in some respect, there may well be those who suffer no distress over the procedural irregularities. Indeed, in contrast to the immediately distressing effect of defamation per se, a person may not even know that procedures were deficient until he enlists the aid of counsel to challenge a perceived substantive deprivation.
31
Moreover, where a deprivation is justified but procedures are deficient, whatever distress a person feels may be attributable to the justified deprivation rather than to deficiencies in procedure. But as the Court of Appeals held, the injury caused by a justified deprivation, including distress, is not properly compensable under § 1983.19 This ambiguity in causation, which is absent in the case of defamation per se, provides additional need for requiring the plaintiff to convince the trier of fact that he actually suffered distress because of the denial of procedural due process itself.
32
Finally, we foresee no particular difficulty in producing evidence that mental and emotional distress actually was caused by the denial of procedural due process itself. Distress is a personal injury familiar to the law, customarily proved by showing the nature and circumstances of the wrong and its effect on the plaintiff.20 In sum, then, although mental and emotional distress caused by the denial of procedural due process itself is compensable under § 1983, we hold that neither the likelihood of such injury nor the difficulty of proving it is so great as to justify awarding compensatory damages without proof that such injury actually was caused.
D
33
The Court of Appeals believed, and respondents urge, that cases dealing with awards of damages for racial discrimination, the denial of voting rights and the denial of Fourth Amendment rights, support a presumption of damages where procedural due process is denied.21 Many of the cases relied upon do not help respondents because they held or implied that some actual, if intangible, injury must be proved before compensatory damages may be recovered. Others simply did not address the issue.22 More importantly, the elements and prerequisites for recovery of damages appropriate to compensate injuries caused by the deprivation of one constitutional right are not necessarily appropriate to compensate injuries caused by the deprivation of another. As we have said, supra, at 258-259, these issues must be considered with reference to the nature of the interests protected by the particular constitutional right in question. For this reason, and without intimating an opinion as to their merits, we do not deem the cases relied upon to be controlling.
III
34
Even if respondents' suspensions were justified, and even if they did not suffer any other actual injury, the fact remains that they were deprived of their right to procedural due process. "It is enough to invoke the procedural safeguards of the Fourteenth Amendment that a significant property interest is at stake, whatever the ultimate outcome of a hearing . . . ." Fuentes v. Shevin, 407 U.S., at 87, 92 S.Ct., at 1997; see Codd v. Velger, 429 U.S., at 632, 97 S.Ct., at 886 (Stevens, J., dissenting); Coe v. Armour Fertilizer Works, 237 U.S. 413, 424, 35 S.Ct. 625, 629, 59 L.Ed. 1027 (1915).
35
Common-law courts traditionally have vindicated deprivations of certain "absolute" rights that are not shown to have caused actual injury through the award of a nominal sum of money.23 By making the deprivation of such rights actionable for nominal damages without proof of actual injury, the law recognizes the importance to organized society that those rights be scrupulously observed; but at the same time, it remains true to the principle that substantial damages should be awarded only to compensate actual injury or, in the case of exemplary or punitive damages, to deter or punish malicious deprivations of rights.
36
Because the right to procedural due process is "absolute" in the sense that it does not depend upon the merits of a claimant's substantive assertions, and because of the importance to organized society that procedural due process be observed, see Boddie v. Connecticut, 401 U.S. 371, 375, 91 S.Ct. 780, 784, 28 L.Ed.2d 113 (1971); Anti-Fascist Committee v. McGrath, 341 U.S., at 171-172, 71 S.Ct., at 648-649 (Frankfurter, J., concurring), we believe that the denial of procedural due process should be actionable for nominal damages without proof of actual injury.24 We therefore hold that if, upon remand, the District Court determines that respondents' suspensions were justified, respondents nevertheless will be entitled to recover nominal damages not to exceed one dollar from petitioners.25
37
The judgment of the Court of Appeals is reversed, and the case is remanded for further proceedings consistent with this opinion.
38
It is so ordered.
39
Mr. Justice MARSHALL concurs in the result.
40
Mr. Justice BLACKMUN took no part in the consideration or decision of this case.
1
At the time of the suspensions, the Board of Education's general rule governing suspensions provided:
"For gross disobedience or misconduct a pupil may be suspended temporarily by the principal for a period not exceeding one school month for each offense. Each such suspension shall be reported immediately to the District Superintendent and also to the parent or guardian of the pupil, with a full statement of the reasons for such suspension. The District Superintendent shall have authority to review the action of the principal and to return the suspended pupil." Rule 6-9 of the Rules of the Board of Education of the City of Chicago (1973), quoted in District Court opinion, App. to Pet. for Cert. A9.
The District Court held that the terms "gross disobedience" and "misconduct" in this general rule are not unconstitutionally vague because they were narrowed by the school principals' issuance of the particular rules allegedly violated here. Id., at A9-A10. Rule 6-9 was amended following this Court's decision in Goss v. Lopez, 419 U.S. 565, 95 S.Ct. 729, 42 L.Ed.2d 725 (1975). See App. to Pet. for Cert. A10-A11, n. 3.
2
The complaint named as defendants, individually and in their official capacities, the principal of the school; the General Superintendent of Schools of the city of Chicago; and the members of the Board of Education of the city of Chicago.
3
Also named as plaintiff in Brisco's suit was People United to Save Humanity (PUSH), a religious corporation organized under the laws of Illinois, the membership of which includes parents of children in the Chicago public schools. The District Court held that PUSH had standing to maintain this suit, a ruling not challenged on appeal.
In addition to the procedural due process claim, Brisco's complaint alleged that enforcement of the "no-earring" rule violated his right to freedom of expression under the First and Fourteenth Amendments. Neither court below passed on this claim, nor do we.
4
The complaint named as defendants, individually and in their official capacities, the principal of the school; the General Superintendent of Schools of the city of Chicago; the members of the Board of Education of the city of Chicago; and the Illinois Superintendent of Public Instruction. The District Court granted the latter party's motion to dismiss.
5
The District Court read Goss v. Lopez, supra, as requiring "more formal procedures" for suspensions of more than 10 days than for suspensions of less than 10 days, and it set forth a deta led list of procedural requirements. See App. to Pet. for Cert. A11-A12. Petitioners have not challenged either the holding that respondents were denied procedural due process, or the listing of rights that must be granted.
6
Although respondents' suspensions occurred before Goss v. Lopez was decided, the District Court thought that petitioners should have been placed on notice that the suspensions violated procedural due process by Linwood v. Board of Ed. of City of Peoria, 463 F.2d 763 (CA7), cert. denied, 409 U.S. 1027, 93 S.Ct. 475, 34 L.Ed.2d 320 (1972). Petitioners have not challenged this holding.
The District Court expressly held that petitioners did not lose their immunity under the first branch of Wood v. Strickland, i. e., that they did not act "with the malicious intention to cause a deprivation of constitutional rights or other injury to the student," 420 U.S., at 322, 95 S.Ct., at 1001:
"Here the record is barren of evidence suggesting that any of the defendants acted maliciously in enforcing disciplinary policies against the plaintiffs. Undoubtedly defendants believed that they were protecting the integrity of the educational process." App. to Pet. for Cert. A13.
7
See also D. Dobbs, Law of Remedies § 3.1, pp. 135-138 (1973); C. McCormick, Law of Damages § 1 (1935); W. Prosser, Law of Torts § 2, p. 7 (4th ed. 1971).
8
See, e. g., United States ex rel. Tyrrell v. Speaker, 535 F.2d 823, 829-830, and n. 13 (CA3 1976); United States ex rel. Larkins v. Oswald, 510 F.2d 583, 590 (CA2 1975); Magnett v. Pelletier, 488 F.2d 33, 35 (CA1 1973); Stolberg v. Members of the Bd. of Trustees for the State Colleges of Conn., 474 F.2d 485, 488-489 (CA2 1973); Donovan v. Reinbold, 433 F.2d 738, 743 (CA9 1970).
9
See 1 F. Hilliard, Law of Torts, ch. 3, § 5 (3d ed. 1866); T. Sedgwick, Measure of Damages 25-35 (5th ed. 1869). Thus, one proponent of § 1 of the Civil Rights Act of 1871 asked during debate: "[W]hat legislation could be more appropriate than to give a person injured by another under color of . . . State laws a remedy by civil action?" Cong. Globe, 42d Cong., 1st Sess., 482 (1871) (remarks of Rep. Wilson). And one opponent of § 1 complained: "The deprivation may be of the slightest conceivable character, the damages in the estimation of any sensible man may not be five dollars or even five cents; they may be what lawyers call merely nominal damages; and yet by this section jurisdiction of that civil action is given to the Federal courts instead of its being prosecuted as now in the courts of the States." Id., at App. 216 (remarks of Sen. Thurman). See also Nahmod, Section 1983 and the "Background" of Tort Liability, 50 Ind. L.J. 5, 10 (1974).
10
Section 2 of the Act, 17 Stat. 13-14, now codified at 42 U.S.C. § 1985(3), made it unlawful to conspire, inter alia, "for the purpose of depriving any person or any class of persons of the equal protection of the laws, or of equal privileges or immunities under the laws . . . ." It further provided (emphasis supplied):
"[I]f any one or more persons engaged in any such conspiracy shall do, or cause to be done, any act in furtherance of the object of such conspiracy, whereby any person shall be injured in his person or property, or deprived of having and exercising any right or privilege of a citizen of the United States, the person so injured or deprived of such rights and privileges may have and maintain an action for the recovery of damages occasioned by such injury or deprivation of rights and privileges against any one or more of the persons engaged in such conspiracy . . . ."
Section 6 of the Act, 17 Stat. 15, now codified at 42 U.S.C. § 1986, provided (emphasis supplied):
"[A]ny person or persons, having knowledge that any of the wrongs conspired to be done and mentioned in the second section of this act are about to be committed, and having power to prevent or aid in preventing the same, shall neglect or refuse to do so, and such wrongful act shall be committed, such person or persons shall be liable to the person injured, or his legal representatives, f r all damages caused by any such wrongful act . . . ."
11
This is not to say that exemplary or punitive damages might not be awarded in a proper case under § 1983 with the specific purpose of deterring or punishing violations of constitutional rights. See, e. g. Silver v. Cormier, 529 F.2d 161, 163-164 (CA10 1976); Stengel v. Belcher, 522 F.2d 438, 444 n. 4 (CA6 1975), cert. dismissed, 429 U.S. 118, 96 S.Ct. 1505, 47 L.Ed.2d 760 (1976); Spence v. Staras, 507 F.2d 554, 558 (CA7 1974); Caperci v. Huntoon, 397 F.2d 799, 801 (CA1), cert. denied, 393 U.S. 940, 89 S.Ct. 299, 21 L.Ed.2d 276 (1968); Mansell v. Saunders, 372 F.2d 573, 576 (CA5 1967); Basista v. Weir, 340 F.2d 74, 84-88 (CA3 1965). Although we imply no approval or disapproval of any of these cases, we note that there is no basis for such an award in this case. The District Court specifically found that petitioners did not act with malicious intention to deprive respondents of their rights or to do them other injury, see n. 6, supra and the Court of Appeals approved only the award of "non-punitive" damages, 545 F.2d 30, 31 (1976).
We also note that the potential liability of § 1983 defendants for attorney's fees, see Civil Rights Attorney's Fees Awards Act of 1976, Pub.L. 94-559, 90 Stat. 2641, amending 42 U.S.C. § 1988, provides additional—and by no means inconsequential assurance that agents of the State will not deliberately ignore due process rights. See also 18 U.S.C. § 242, the criminal counterpart of § 1983.
12
For discussions of the problems of fashioning damages awards under § 1983, see generally McCormack, Federalism and Section 1983: Limitations on Judicial Enforcement of Constitutional Protections, Part 1, 60 Va.L.Rev. 1, 55-66 (1974); Nahmod, supra n. 9, at 25-27 n. 89; Yudof, Liability for Constitutional Torts and the Risk-Averse Public School Official, 49 S.Cal.L.Rev. 1322, 1366-1383 (1976); Comment, Civil Actions for Damages under the Federal Civil Rights Statutes, 45 Texas L.Rev. 1015, 1023-1035 (1967).
13
The Court has looked to the common law of torts in similar fashion in constructing immunities under § 1983. See Imbler v. Pachtman, 424 U.S. 409, 417-419, 96 S.Ct. 984, 988-989, 47 L.Ed.2d 128 (1976), and cases there discussed. Title 42 U.S.C. § 1988 authorizes courts to look to the common law of the States where this is "necessary to furnish suitable remedies" under § 1983.
14
See, e. g., Dixon v. Love, 431 U.S. 105, 112-114, 97 S.Ct. 1723, 1727-1728, 52 L.Ed.2d 172 (1977); Ingraham v. Wright, 430 U.S. 651, 675, 677-678, 682, 97 S.Ct. 1401, 1414, 1415-1416, 1418, 51 L.Ed.2d 711 (1977); Arnett v. Kennedy, 416 U.S. 134, 170, 94 S.Ct. 1633, 1652, 40 L.Ed.2d 15 (1974) (Powell, J., concurring in part and in result in part); id., at 201, 94 S.Ct., at 1667 (White, J., concurring and dissenting); id., at 214-215, 94 S.Ct., at 1673-1674 (Marshall, J., dissenting); Mitchell v. W. T. Grant Co., 416 U.S. 600, 609-610, 618, 94 S.Ct. 1895, 1900-1901, 1905, 40 L.Ed.2d 406 (1974); Goldberg v. Kelley, 397 U.S. 254, 266, 90 S.Ct. 1011, 1019, 25 L.Ed.2d 287 (1970).
15
A few courts appear to have taken a contrary view in cases where public employees holding property interests in their jobs were discharged with cause but without procedural due process. E. g., Thomas v. Ward, 529 F.2d 916, 920 (CA4 1975); Zimmerer v. Spencer, 485 F.2d 176, 178-179 (CA5 1973); Horton v. Orange County Bd. of Ed., 464 F.2d 536, 537-538 (CA4 1972). See also Burt v. Board of Trustees of Edgefield County School Dist., 521 F.2d 1201, 1207-1208 (CA4 1975) (opinion of Winter, J.).
16
Respondents also contend that injury should be presumed because, even if they were guilty of the conduct charged, they were deprived of the chance to present facts or arguments in mitigation to the initial decisionmaker. Cf. Gagnon v. Scarpelli, 411 U.S. 778, 784-785, 93 S.Ct. 1756, 1760-1761, 36 L.Ed.2d 656 (1973); Morrissey v. Brewer, 408 U.S. 471, 479-480, 488, 92 S.Ct. 2593, 2599-2600, 2603, 33 L.Ed.2d 484 (1972). They claim that "[i]t can never be known . . . what, if anything, the exercise of such an opportunity to plead one's cause on judgmental or discretionary grounds would have availed." Brief for Respondents 28. But, as previously indicated, the Court of Appeals held that respondents cannot recover damages for injuries caused by their suspensions if the District Court determines that "[respondents] would have been suspended even if a proper hearing had been held." 545 F.2d, at 32. This holding, which respondents do not challenge, necessarily assumes that the District Court can determine what the outcome would have been if respondents had received their hearing. We presume that this determination will include consideration of the likelihood that any mitigating circumstances to which respondents can point would have swayed the initial decisionmakers.
17
"By the very nature of harm resulting from defamatory publications, it is frequently not susceptible of objective proof. Libel and slander work their evil in ways that are invidious and subtle." 1 F. Harper & F. James, Law of Torts § 5.30, p. 468 (1956); see also Restatement of Torts § 621, comment a, p. 314 (1938).
18
The essence of libel per se is the publication in writing of false statements that tend to injure a person's reputation. The essence of slander per se is the publication by spoken words of false statements imputing to a person a criminal offense; a loathsome disease; matter affecting adversely a person's fitness for trade, business, or profession; or serious sexual misconduct. 1 F. Harper & F. James, Law of Torts §§ 5.9-5.13 (1956); Restatement (Second) of Torts §§ 558, 559, 569-574 (1977); W. Prosser, Law of Torts § 112 (4th ed. 1971).
19
In this case, for example, respondents deni d the allegations against them. They may well have been distressed that their denials were not believed. They might have been equally distressed if they had been disbelieved only after a full-dress hearing, but in that instance they would have no cause of action against petitioners.
20
We use the term "distress" to include mental suffering or emotional anguish. Although essentially subjective, genuine injury in this respect may be evidenced by one's conduct and observed by others. Juries must be guided by appropriate instructions, and an award of damages must be supported by competent evidence concerning the injury. See Gertz v. Robert Welch, Inc., 418 U.S. 323, 350, 94 S.Ct. 2997, 3012, 41 L.Ed.2d 789 (1974).
21
See cases cited in Hostrop v. Board of Junior College Dist. No. 515, 523 F.2d 569, 579 (CA7 1975), cert. denied, 425 U.S. 963, 96 S.Ct. 1748, 48 L.Ed.2d 208 (1976).
22
In Jeanty v. McKey & Poague, Inc., 496 F.2d 1119 (CA7 1974), and Seaton v. Sky Realty Co., 491 F.2d 634 (CA7 1974), cited in Hostrop, supra, 523 F.2d, at 579, the court held that damages may be awarded for humiliation and distress caused by discriminatory refusals to lease housing to plaintiffs. The court's comment in Seaton that "[h]umiliation can be inferred from the circumstances as well as established by the testimony," 491 F.2d, at 636, suggests that the court considered the question of actual injury to be one of fact. See generally Annot., Recovery of Damages for Emotional Distress Resulting from Racial, Ethnic, or Religious Abuse or Discrimination, 40 A.L.R.3d 1290 (1971).
In Basista v. Weir, 340 F.2d 74 (CA3 1965); Sexton v. Gibbs, 327 F.Supp. 134 (ND Tex.1970), aff'd, 446 F.2d 904 (CA5 1971), cert. denied,
404 U.S. 1062, 92 S.Ct. 733, 30 L.Ed.2d 751 (1972); and Rhoads v. Horvat, 270 F.Supp. 307 (Colo.1967), cited in Hostrop, supra, 523 F.2d, at 579, the courts indicated that damages may be awarded for humiliation and distress caused by unlawful arrests, searches, and seizures. In Basista v. Weir, the court held that nominal damages could be awarded for an illegal arrest even if compensatory damages were waived; and that such nominal damages would, in an appropriate case, support an award of punitive damag s. 340 F.2d, at 87-88. Because it was unclear whether the plaintiff had waived his claim for compensatory damages, that issue was left open upon remand. Id., at 88. In Sexton v. Gibbs, where the court found "that Plaintiff suffered humiliation, embarrassment and discomfort," substantial compensatory damages were awarded. 327 F.Supp., at 143. In Rhoads v. Horvat, the court allowed a jury award of $5,000 in compensatory damages for an illegal arrest to stand, stating that it did "not doubt that the plaintiff was outraged by the arrest." 270 F.Supp., at 311.
Wayne v. Venable, 260 F. 64 (CA8 1919), cited in Hostrop, supra, 523 F.2d, at 579, and Ashby v. White, 1 Bro.P.C. 62, 1 Eng.Rep. 417 (H.L.1703), rev'g 2 Ld.Raym. 938, 92 Eng.Rep. 126 (K.B.1703), do appear to support the award of substantial damages simply upon a showing that a plaintiff was wrongfully deprived of the right to vote. Citing Ashby v. White, this Court has held that actions for damages may be maintained for wrongful deprivations of the right to vote, but it has not considered the prerequisites for recovery. Nixon v. Herndon, 273 U.S. 536, 540, 47 S.Ct. 446, 71 L.Ed. 759 (1927); see also Smith v. Allwright, 321 U.S. 649, 64 S.Ct. 757, 88 L.Ed. 987 (1944); Coleman v. Miller, 307 U.S. 433, 469, 59 S.Ct. 972, 989, 83 L.Ed. 1385 (1939) (opinion of Frankfurter, J.); Nixon v. Condon, 286 U.S. 73, 52 S.Ct. 24, 76 L.Ed. 516 (1932); Myers v. Anderson, 238 U.S. 368, 35 S.Ct. 932, 59 L.Ed. 1349 (1915); Giles v. Harris, 189 U.S. 475, 23 S.Ct. 639, 47 L.Ed. 909 (1903); Swafford v. Templeton, 185 U.S. 487, 22 S.Ct. 783, 46 L.Ed. 1005 (1902); Wiley v. Sinkler, 179 U.S. 58, 21 S.Ct. 17, 45 L.Ed. 84 (1900). The common-law rule of damages for wrongful deprivations of voting rights embodied in Ashby v. White would, of course, be quite relevant to the analogous question under § 1983.
23
See D. Dobbs, Law of Remedies § 3.8, pp. 191-193 (1973); C. McCormick, Law of Damages §§ 20-22 (1935); Restatement of Torts § 907 (1939).
24
A number of lower federal courts have approved the award of nominal damages under § 1983 where deprivations of constitutional rights are not shown to have caused actual injury. E. g., Thompson v. Burke, 556 F.2d 231, 240 (CA3 1977); United States ex rel. Tyrrell v. Speaker, 535 F.2d, at 829-830; Magnett v. Pelletier, 488 F.2d 33, 35 (CA1 1973); Basista v. Weir, 340 F.2d, at 87; Bell v. Gayle, 384 F.Supp. 1022, 1026-1027 (ND Tex.1974); United States ex rel. Myers v. Sielaff, 381 F.Supp. 840, 844 (ED Pa.1974); Berry v. Macon County Bd. of Ed., 380 F.Supp. 1244, 1248 (MD Ala.1971).
25
Respondents contend that the Court of Appeals' holding could be affirmed on the ground that the District Court held them to too high a standard of proof of the amount of damages appropriate to compensate intangible injuries that are proved to have been suffered. Brief for Respondents 49-52. It is true that plaintiffs ordinarily are not required to prove with exactitude the amount of damages that should be awarded to compensate intangible injury. See Gertz v. Robert Welch, Inc., 418 U.S., at 350, 94 S.Ct., at 3012. But, as the Court of Appeals said, "in the case at bar, there is no proof of individualized injury to [respondents], such as mental distress . . . ." 545 F.2d, at 31. With the case in this posture, there is no occasion to consider the quantum of proof required to support a particular damages award where actual injury is proved.
| 12
|
435 U.S. 268
98 S.Ct. 1054
55 L.Ed.2d 268
UNITED STATES, Petitioner,v.Ralph CECCOLINI.
No. 76-1151.
Argued Dec. 5, 1978.
Decided March 21, 1978.
Syllabus
A police officer (Biro), while taking a break in respondent's flower shop and conversing with an employee of the shop (Hennessey), noticed an envelope with money protruding therefrom lying on the cash register. Upon examination, he found it contained not only money but policy slips. Biro then placed the envelope back on the register and without telling Hennessey what he had found asked her to whom the envelope belonged. She told him it belonged to respondent. Biro's finding was reported to local detectives and to the FBI, who interviewed Hennessey some four months later without referring to the incident involving Biro. About six months after that incident respondent was summoned before a federal grand jury where he testified that he had never taken policy bets at his shop, but Hennessey testified to the contrary, and shortly thereafter respondent was indicted for perjury. Hennessey testified against respondent at his trial, but after a finding of guilt the District Court granted respondent's motion to suppress Hennessey's testimony and set aside that finding. The Court of Appeals affirmed, noting that the "road" to that testimony from the concededly unconstitutional search was "both straight and uninterrupted." Held: The Court of Appeals erred in concluding that the degree of attenuation between Biro's search of the envelope and Hennessey's testimony at the trial was not sufficient to dissipate the connection between the illegality of the search and challenged testimony. Pp. 273-280.
(a) In determining whether the exclusionary rule with its deterrent purpose should be applied, its benefits should be balanced against i § costs, and, in evaluating the standards for application of the rule to live-witness testimony in light of this balance, material factors to be considered are the length of the "road" between the Fourth Amendment violation and the witness' testimony; the degree of free will exercised by the witness; and the fact that exclusion of the witness' testimony would perpetually disable the witness from testifying about relevant and material facts regardless of how unrelated such testimony might be to the purpose of the originally illegal search or the evidence discovered thereby. Pp. 273-279.
(b) Here, where the evidence indicates overwhelmingly that Hennessey's testimony was an act of her own free will in no way coerced or induced by official authority as a result of Biro's discovery of the policy slips, where substantial time elapsed between the illegal search and the initial contact with the witness and between the latter and her trial testimony, and where both Hennessey's identity and her relationship with respondent were well known to the investigating officers, and there is no evidence that Biro entered the shop or picked up the envelope with the intent of finding evidence of an illicit gambling operation, application of the exclusionary rule could not have the slightest deterrent effect on the behavior of an officer such as Biro, and the cost of permanently silencing Hennessey is too great for an evenhanded system of law enforcement to bear in order to secure such a speculative and very likely negligible deterrent effect. Pp. 279-280.
(c) The exclusionary rule should be invoked with much greater reluctance where the claim is based on a causal relationship between a constitutional violation and the discovery of a live witness than when a similar claim is advanced to support suppression of an inanimate object. P. 280.
542 F.2d 136, reversed.
Richard A. Allen, for petitioner.
Leon J. Greenspan, White Plains, N. Y., for respondent.
Mr. Justice REHNQUIST delivered the opinion of the Court.
1
In December 1974, Ronald Biro, a uniformed police officer on assignment to patrol school crossings, entered respondent's place of business, the Sleepy Hollow Flower Shop, in North Tarrytown, N. Y. He went behind the customer counter and, in the words of Ichabod Crane, one of Tarrytown's more illustrious inhabitants of days gone past, "tarried," spending his short break engaged in conversation with his friend Lois Hennessey, an employee of the shop. During the course of the conversation he noticed an envelope with money sticking out of it lying on the drawer of the cash register behind the counter. Biro picked up the envelope and, upon examining its contents, discovered that it contained not only money but policy slips. He placed the envelope back on the register and, without telling Hennessey what he had seen, asked her to whom the envelope belonged. She replied that the envelope belonged to respondent Ceccolini, and that he had instructed her to give it to someone.
2
The next day, Officer Biro mentioned his discovery to North Tarrytown detectives who in turn told Lance Emory, an FBI agent. This very ordinary incident in the lives of Biro and Hennessey requires us, over three years later, to decide whether Hennessey's testimony against respondent Ceccolini should have been suppressed in his trial for perjury. Respondent was charged with that offense because he denied that he knew anything of, or was in any way involved with, gambling operations. Respondent was found guilty after a bench trial in the United States District Court for the Southern District of New York, but immediately after the finding of guilt the District Court granted respondent's motion to "suppress" the testimony of Hennessey because the court concluded that the testimony was a "fruit of the poisonous tree"; assuming respondent's motion for a directed verdict included a motion to set aside the verdict of guilty, the District Court granted the motion because it concluded t at without Hennessey's testimony there was insufficient evidence of respondent's guilt. The Government appealed these rulings to the Court of Appeals for the Second Circuit.
3
That court rightly concluded that the Government was entitled to appeal both the order granting the motion to suppress and the order setting aside the verdict of guilty, since further proceedings if the Government were successful on the appeal would not be barred by the Double Jeopardy Clause.1 542 F.2d 136, 139-140 (1976). The District Court had sensibly first made its finding on the factual question of guilt or innocence, and then ruled on the motion to suppress; a reversal of these rulings would require no further proceedings in the District Court, but merely a reinstatement of the finding of guilt. United States v. Morrison, 429 U.S. 1, 97 S.Ct. 24, 50 L.Ed.2d 1 (1976); United States v. Wilson, 420 U.S. 332, 352-353, 95 S.Ct. 1013, 1026, 43 L.Ed.2d 232 (1975).
4
The Government, however, was not successful on the merits of its appeal; the Court of Appeals by a divided vote affirmed the District Court's suppression ruling. 542 F.2d, at 140-142. We granted certiorari to consider the correctness of this ruling of the Court of Appeals. 431 U.S. 903, 97 S.Ct. 1693, 52 L.Ed.2d 386 (1977).
5
* During the latter part of 1973, the Federal Bureau of Investigation was exploring suspected gambling operations in North Tarrytown. Among the establishments under surveillance was respondent's place of business, which was a frequent and regular stop of one Francis Millow, himself a suspect in the investigation. While the investigation continued on a reduced scale after December 1973,2 surveillance of the flower shop was curtailed at that time. It was thus a full year after this discontinuance of FBI surveillance that Biro spent his patrol break behind the counter with Hennessey. When Biro's discovery of the policy slips was reported the following day to Emory, Emory was not fully informed of the manner in which Biro had obtained the information. Four months later, Emory interviewed Hennessey at her home for about half an hour in the presence of her mother and two sisters. He identified himself, indicated that he had learned through the local police department that she worked for respondent, and told her that the Government would appreciate any information regarding respondent's activities that she had acquired in the shop. Emory did not specifically refer to the incident involving Officer Biro. Hennessey told Emory that she was studying police science in college and would be willing to help. She then related the events which had occurred during her visit with Officer Biro.
6
In May 1975, respondent was summoned before a federal grand jury where he testified that he had never taken policy bets for Francis Millow at the flower shop. The next week Hennessey testified to the contrary, and shortly thereafter respondent was indicted for perjury.3 Respondent waived a jury, and with the consent of all parties the District Court considered simultaneously with the trial on the merits respondent's motion to suppress both the policy slips and the testimony of Hennessey. At the conclusion of the evidence, the District Court excluded from its consideration "the envelope and the contents of the envelope," but nonetheless found respondent guilty of the offense charged. The court then, as previously described, granted respondent's motion to suppress the testimony of Hennessey, because she "first came directly to the attention of the government as a result of an illegal search" and the Government had not "sustained its burden of showing that Lois Henness[e]y's testimony definitely would have been obtained without the illegal search." App. to Pet. for Cert. 28a-29a.
7
The Court of Appeals affirmed this ruling on the Government's appeal, reasoning that "the road to Miss Henness[e]y's testimony from Officer Biro's concededly unconstitutional search is both straight and uninterrupted." 542 F.2d, at 142. The Court of Appeals also concluded that there was support in the record for the District Court's finding that the ongoing investigation would not have inevitably led to the evidence in question without Biro's discovery of the two policy slips. Id., at 141. Because of our traditional deference to the "two court rule," Graver Mfg. Co. v. Linde Co., 336 U.S. 271, 275, 69 S.Ct. 535, 537, 93 L.Ed. 672 (1949), and the fact that the Government has not sought review of this latter ruling, we leave undisturbed this part of the Court of Appeals' decision. Because we decide that the Court of Appeals was wrong in concluding that there was insufficient attenuation between Officer Biro's search and Hennessey's testimony at the trial, we also do not reach the Government's contention that the exclusionary rule should not be applied when the evidence derived from the search is being used to prove a subsequent crime such as perjury.
II
8
The "road" to which the Court of Appeals analogized the train of events from Biro's discovery of the policy slips to Hennessey's testimony at respondent's trial for perjury is one of literally thousands of such roads traveled periodically between an original investigative discovery and the ultimate trial of the accused. The constitutional question under the Fourth Amendment was phrased in Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963), as whether "the connection between the lawless conduct of the police and the discovery of the challenged evidence has 'become so attenuated as to dissipate the taint.' " Id., at 487, 491, 83 S.Ct. at 417. The question was in turn derived from the Court's earlier decision in Nardone v. United States, 308 U.S. 338, 341, 60 S.Ct. 266, 268, 84 L.Ed. 307 (1939), where Mr. Justice Frankfurter stated for the Court:
9
"Here, as in the Silverthorne case [Silverthorne Lumber Co. v. United States ], the facts improperly obtained do not 'become sacred and inaccessible. If knowledge of them is gained from an independent source they may be proved like any others, but the knowledge gained by the Government's own wrong cannot be used by it' simply because it is used derivatively. 251 U.S. 385, 392, 40 S.Ct. 182, 64 L.Ed. 319.
10
"In practice this generalized statement may conceal concrete complexities. Sophisticated argument may prove a causal connection between information obtained through illicit wire-tapping and the Government's proof. As a matter of good sense, however, such connection may have become so attenuated as to dissipate the taint."
11
This, of course, makes it perfectly clear, if indeed ever there was any doubt about the matter, that the question of causal connection in this setting, as in so many other questions with which the law concerns itself, is not to be determined solely through the sort of analysis which would be applicable in the physical sciences. The issue cannot be decided on the basis of causation in the logical sense alone, but necessarily includes other elements as well. And our cases subsequent to Nardone, supra, have laid out the fundamental tenets of the exclusionary rule, from which the elements that are relevant to the causal inquiry can be divined.
12
An examination of these cases leads us to reject the Government's suggestion that we adopt what would in practice amount to a per se rule that the testimony of a live witness should not be excluded at trial no matter how close and proximate the connection between it and a violation of the Fourth Amendment. We also reaffirm the holding of Wong Sun, supra, 371 U.S. at 485, 83 S.Ct. at 416, that "verbal evidence which derives so immediately from an unlawful entry and an unauthorized arrest as the officers' action in the present case is no less the 'fruit' of official illegality than the more common tangible fruits of the unwarranted intrusion." We are of the view, however, that cases decided since Wong Sun significantly qualify its further observation that "the policies underlying the exclusionary rule [do not] invite any logical distinction between physical and verbal evidence." 371 U.S., at 486, 83 S.Ct., at 416. Rather, at least in a case such as this, where not only was the alleged "fruit of the poisonous tree" the testimony of a live witness, but unlike Wong Sun the witness was not a putative defendant, an examination of our cases persuades us that the Court of Appeals was simply wrong in concluding that if the road were uninterrupted, its length was immaterial. Its length, we hold, is material, as are certain other factors enumerated below to which the court gave insufficient weight.
13
In Stone v. Powell, 428 U.S. 465, 486, 96 S.Ct. 3037, 3049, 49 L.Ed.2d 1067 (1976), we observed that "despite the broad deterrent purpose of the exclusionary rule, it has never been interpreted to proscribe the introduction of illegally seized evidence in all proceedings or against all persons." Recognizing not only the benefits but the costs, which are often substantial, of the exclusionary rule, we have said that "application of the rule has been restricted to those areas where its remedial objectives are thought most efficaciously served," United States v. Calandra, 414 U.S. 338, 348, 94 S.Ct. 613, 620, 38 L.Ed.2d 561 (1974). In that case, we refused to require that illegally seized evidence be excluded from presentation to a grand jury. We have likewise declined to prohibit the use of such evidence for the purpose of impeaching a defendant who testifies in his own behalf. Walder v. United States, 347 U.S. 62, 74 S.Ct. 354, 98 L.Ed. 503 (1954).
14
We have limited the standing requirement in the exclusionary rule context because the "additional benefits of extending the . . . rule" to persons other than the ones subject to the illegal search are outweighed by the "further encroachment upon the public interest in prosecuting those accused of crime and having them acquitted or convicted on the basis of all the evidence which exposes the truth." Alderman v. United States, 394 U.S. 165, 174-175, 89 S.Ct. 961, 967, 22 L.Ed.2d 176 (1969). Even in situations where the exclusionary rule is plainly applicable, we have declined to adopt a "per se or 'but for' rule" that would make inadmissible any evidence, whether tangible or live-witness testimony, which somehow came to light through a chain of causation that began with an illegal arrest. Brown v. Illinois, 422 U.S. 590, 603, 95 S.Ct. 2254, 2261, 45 L.Ed.2d 416 (1975).
15
Evaluating the standards for application of the exclusionary rule to live-witness testimony in light of this balance, we are first impelled to conclude that the degree of free will exercised by the witness is not irrelevant in determining the extent to which the basic purpose of the exclusionary rule will be advanced by its application. This is certainly true when the challenged statements are made by a putative defendant after arrest, Wong Sun, supra, 371 U.S. at 491, 83 S.Ct. at 419; Brown v. Illinois, supra, and a fortiori is true of testimony given by nondefendants.
16
The greater the willingness of the witness to freely testify, the greater the likelihood that he or she will be discovered by legal means and, concomitantly, the smaller the incentive to conduct an illegal search to discover the witness.4 Witnesses are not like guns or documents which remain hidden from view until one turns over a sofa or opens a filing cabinet. Witnesses can, and often do, come forward and offer evidence entirely of their own volition. And evaluated properly, the degree of free will necessary to dissipate the taint will very likely be found more often in the case of live-witness testimony than other kinds of evidence. The time, place and manner of the initial questioning of the witness may be such that any statements are truly the product of detached reflection and a desire to be cooperative on the part of the witness. And the illegality which led to the discovery of the witness very often will not play any meaningful part in the witness' willingness to testify.
17
"The proffer of a living witness is not to be mechanically equated with the proffer of inanimate evidentiary objects illegally seized. The fact that the name of a potential witness is disclosed to police is of no evidentiary significance, per se, since the living witness is an individual human personality whose attributes of will, perception, memory and volition interact to determine what testimony he will give. The uniqueness of this human process distinguishes the evidentiary character of a witness from the relative immutability of inanimate evidence." Smith v. United States, 117 U.S.App.D.C. 1, 3-4, 324 F.2d 879, 881-882 (1963) (Burger, J.) (footnotes omitted), cert. denied, 377 U.S. 954, 84 S.Ct. 1632, 12 L.Ed.2d 498 (1964).
18
Another factor which not only is relevant in determining the usefulness of the exclusionary rule in a particular context, but also seems to us to differentiate the testimony of all live witnesses—even putative defendants—from the exclusion of the typical documentary evidence, is that such exclusion would perpetually disable a witness from testifying about relevant and material facts, regardless of how unrelated such testimony might be to the purpose of the originally illegal search or the evidence discovered thereby. Rules which disqualify knowledgeable witnesses from testifying at trial are, in the words of Professor McCormick, "serious obstructions to the ascertainment of truth"; accordingly, "[f]or a century the course of legal evolution has been in the direction of sweeping away these obstructions." C. McCormick, Law of Evidence § 71 (1954). Alluding to the enormous cost engendered by such a permanent disability in an analogous context, we have specifically refused to hold that "making a confession under circumstances which preclude its use, perpetually disables the confessor from making a usable one after those conditions have been removed." United States v. Bayer, 331 U.S. 532, 541, 67 S.Ct. 1394, 1398, 91 L.Ed. 1654 (1947). For many of these same reasons, the Court has also held admissible at trial testimony of a witness whose identity was disclosed by the defendant's statement given after inadequate Miranda warnings. Michigan v. Tucker, 417 U.S. 433, 450-451, 94 S.Ct. 2357, 2367, 41 L.Ed.2d 182 (1974).
19
' For, when balancing the interests involved, we must weigh the strong interest under any system of justice of making available to the trier of fact all concededly relevant and trustworthy evidence which either party seeks to adduce. . . . Here respondent's own statement, which might have helped the prosecution show respondent's guilty conscience at trial, had already been excised from the prosecution's case pursuant to this Court's Johnson v. New Jersey, 384 U.S. 719, 86 S.Ct. 1772, 16 L.Ed.2d 882 (1966) decision. To extend the excision further under the circumstances of this case and exclude relevant testimony of a third-party witness would require far more persuasive arguments than those advanced by respondent."
20
In short, since the cost of excluding live-witness testimony often will be greater, a closer, more direct link between the illegality and that kind of testimony is required.
21
This is not to say, of course, that live-witness testimony is always or even usually more reliable or dependable than inanimate evidence. Indeed, just the opposite may be true. But a determination that the discovery of certain evidence is sufficiently unrelated to or independent of the constitutional violation to permit its introduction at trial is not a determination which rests on the comparative reliability of that evidence. Attenuation analysis, appropriately concerned with the differences between live-witness testimony and inanimate evidence, can consistently focus on the factors enumerated above with respect to the former, but on different factors with respect to the latter.
22
In holding that considerations relating to the exclusionary rule and the constitutional principles which it is designed to protect must play a factor in the attenuation analysis, we do no more than reaffirm an observation made by this Court half a century ago:
23
"A criminal prosecution is more than a game in which the Government may be checkmated and the game lost merely because its officers have not played according to rule." McGuire v. United States, 273 U.S. 95, 99, 47 S.Ct. 259, 260, 71 L.Ed. 556 (1927).
24
The penalties visited upon the Government, and in turn upon the public, because its officers have violated the law must bear some relation to the purposes which the law is to serve.
III
25
Viewing this case in the light of the principles just discussed, we hold that the Court of Appeals erred in holding that the degree of attenuation was not sufficient to dissipate the connection between the illegality and the testimony. The evidence indicates overwhelmingly that the testimony given by the witness was an act of her own free will in no way coerced or even induced by official authority as a result of Biro's discovery of the policy slips. Nor were the slips themselves used in questioning Hennessey. Substantial periods of time elapsed between the time of the illegal search and the initial contact with the witness, on the one hand, and between the latter and the testimony at trial on the other. While the particular knowledge to which Hennessey testified at trial can be logically traced back to Biro's discovery of the policy slips both the identity of Hennessey and her relationship with the respondent were well known to those investigating the case. There is, in addition, not the slightest evidence to suggest that Biro entered the shop or picked up the envelope with the intent of finding tangible evidence bearing on an illicit gambling operation, much less any suggestion that he entered the shop and searched with the intent of finding a willing and knowledgeable witness to testify against respondent. Application of the exclusionary rule in this situation could not have the slightest deterrent effect on the behavior of an officer such as Biro. The cost of permanently silencing Hennessey is too great for an evenhanded system of law enforcement to bear in order to secure such a speculative and very likely negligible deterrent effect.
26
Obviously no mathematical weight can be assigned to any of the factors which we have discussed, but just as obviously they all point to the conclusion that the exclusionary rule should be invoked with much greater reluctance where the claim is based on a causal relationship between a constitutional violation and the discovery of a live witness than when a similar claim is advanced to support suppression of an inanimate object. The judgment of the Court of Appeals is accordingly
27
Reversed.
28
Mr. Justice BLACKMUN took no part in the consideration or decision of this case.
29
Mr. Chief Justice BURGER, concurring in the judgment.
30
I agree with the Court's ultimate conclusion that there is a fundamental difference, for purposes of the exclusionary rule, between live-witness testimony and other types of evidence. I perceive this distinction to be so fundamental, however, that I would not prevent a factfinder from hearing and considering the relevant statements of any witness, except perhaps under the most remarkable of circumstances—although none such have ever been postulated that would lead me to exclude the testimony of a live witness.
31
To appreciate this position, it is essential to bear in mind the purported justification for employing the exclusionary rule in a Fourth Amendment context: deterrence of official misconduct. See Stone v. Powell, 428 U.S. 465, 486, 96 S.Ct. 3037, 3047, 49 L.Ed.2d 1067 (1976); United States v. Janis, 428 U.S. 433, 458-459, n. 35, 96 S.Ct. 3021, 3034, 49 L.Ed.2d 1046 (1976). As an abstract intellectual proposition this can be buttressed by a plausible rationale since there is at least some comprehensible connection—albeit largely and dubiously speculative—between the exclusion of evidence and the deterrence of intentional illegality on the part of a police officer.1 But if that is the purpose of the rule, it seems to me that the appropriate inquiry in every case in which a defendant seeks the exclusion of otherwise admissible and reliable evidence is whether official conduct in reality will be measurably altered by taking such a course.
32
On the facts of this case the Court is, of course, correct in holding that the "[a]pplication of the exclusionary rule in this situation could not have the slightest deterrent effect on the behavior of an officer such as Biro." Ante, at 280. Reaching this result, however, requires no judicial excursion into an area about which "philosophers have been able to argue endlessly,"2 namely, the degree of "free will" exercised by a person when engaging in an act such as speaking.
33
In the history of ideas many thinkers have maintained with persuasion that there is no such thing as "free will," in the sense that the term implies the independent ability of an actor to regulate his or her conduct. Others have steadfastly maintained the opposite, arguing that the human personality is one innately free to choose among alternatives. Still a third group would deny that the very term "free will" has coherent meaning. These are only a few of the many perspectives on a subject which lies at the core of our intellectual and religious heritage. While this ancient debate will undoubtedly continue, "society and the law have no choice in the matter. We must proceed . . . on the scientifically unprovable assumption that human beings make choices in the regulation of their conduct and that they are influenced by society's standards as well as by personal standards." Blocker v. United States, 110 U.S.App.D.C. 41, 53, 88 F.2d 853, 865 (1961) (Burger, J., concurring in result). Mr. Justice Jackson expressed this in Gregg Cartage & Storage Co. v. United States, 316 U.S. 74, 80, 62 S.Ct. 932, 935, 86 L.Ed. 1283 (1942): "[T]he practical business of government and administration of the law is obliged to proceed on more or less rough and ready judgments based on the assumption that mature and rational persons are in control of their own conduct." And in Steward Machine Co. v. Davis, 301 U.S. 548, 590, 57 S.Ct. 883, 892, 81 L.Ed. 1279 (1937), Mr. Justice Cardozo put it thus: "Till now the law has been guided by a robust common sense which assumes the freedom of the will as a working hypothesis in the solution of its problems."
34
We are nonetheless cognizant of the fact that this assumption must continually confront the inherent practical obstacle of one person's being unable to know with certainty the content of another's mind. We cross this barrier daily, of course, in the process of determining criminal culpability.3 Yet in criminal trials we are willing to bear the risk of error—substantially diminished by the requirement of proof beyond a reasonable doubt in order to effectuate the common-law tradition of imposing punishment only upon those who can be said to be morally responsible for their acts. There is no analogue to this concern, however, in the area of Fourth Amendment exclusion, which has an admitted pragmatic purpose—based as I suggested on speculative hypotheses which ought to lead us to apply it with reasoned discrimination, not as an automatic response. In short, the results achieved from current exclusionary rule standards are bizarre enough without steering the analysis in the direction of areas which offer no reasonable hope of a comprehensible framework for inquiry.
35
It would be obvious nonsense to postulate that during his brief encounter in the florist shop Officer Biro was making a painstaking analysis of the extent to which Lois Hennessey's "free will" would affect her disposition to testify against respondent at some future point. It is one thing to engage in scholastic hindsight, particularly as the dissent has done here, in which speculation proceeds from unfounded hypotheses as to the probable explanations for the decision of a live witness to come forward and testify. But it is quite another to suppose that the police officer, assuming he is contemplating illegal action, will, or would be able to, engage in a similar inquiry.
36
There are several reasons which support this analysis, which, I might add, is found acceptable in every other legal system in the world. Initially, I would point out that the concept of effective deterrence assumes that the police officer consciously realizes the probable consequences of a presumably impermissible course of conduct. The officer must be cognizant of at least the possibility that his actions—because of possible suppression—will undermine the chances of convicting a known criminal. I strongly suspect that in the vast majority of instances in this setting the officer accused of a Fourth Amendment violation will not be even remotely aware of the existence of a witness, as for example, where seizure of an item of evidence guides official inquiry to an eyewitness. Of course, an officer conducting a search later held illegal may have some hope that his inquiry will lead to persons who can come forward with testimony. It is not plausible, however, that a police officer would consciously engage in illegal action simply to gain access to a witness, knowing full well that under prevailing legal doctrine the result will be the certain exclusion of whatever tangible evidence might be found.4
37
Even if we suppose that the officer suspects that his illegal actions will produce a lead to a witness, he faces the intractable problem of understanding how valuable that person will be to his investigation. As one philosopher has aptly stated the matter, "[t]he freedom of the will consists in the impossibility of knowing actions that still lie in the future." L. Wittgenstein, Tractatus Logico-Philosophicus ¶ 5.1362 (Pears & McGuinness trans. 1961). In Smith v. United States, 117 U.S.App.D.C. 1, 3-4, 324 F.2d 879, 881-882 (1963), cert. denied, 377 U.S. 954, 84 S.Ct. 1632, 12 L.Ed.2d 498 (1964), this point was applied to the case of a live witness testifying under oath:
38
"The proffer of a living witness is not to be mechanically equated with the proffer of inanimate evidentiary objects illegally seized. The fact that the name of a potential witness is disclosed to police is of no evidentiary significance, per se, since the living witness is an individual human personality whose attributes of will, perception, memory and volition interact to determine what testimony he will give. The uniqueness of this human process distinguishes the evidentiary character of a [living] witness from the relative immutability of inanimate evidence." (Emphasis added.) (Footnotes omitted.)
39
It can, of course, be argued, that the prospect of finding a helpful witness may play some role in a policeman's decision to be indifferent about Fourth Amendment procedures. The answer to this point, however, is that we have never insisted on employing the exclusionary rule whenever there is some possibility, no matter how remote, of deterring police misconduct. Rather, we balance the cost to society of losing perfectly competent evidence against the prospect of incrementally enhancing Fourth Amendment values. See, e. g., Stone, 428 U.S., at 486, 96 S.Ct., at 3047; United States v. Calandra, 414 U.S. 338, 350-351, 94 S.Ct. 613, 621, 38 L.Ed.2d 561 (1974); Alderman v. United States, 394 U.S. 165, 174-175, 89 S.Ct. 961, 966-977, 22 L.Ed.2d 176 (1969).
40
Using this approach it strikes me as evident that the permanent silencing of a witness—who, after all, is appearing under oath—is not worth the high price the exclusionary rule exacts. Any rule of law which operates to keep an eyewitness to a crime—a murder, for example—from telling the jury what that person saw has a rational basis roughly comparable to the primitive rituals of human sacrifice.
41
I would, therefore, resolve the case of a living witness on a per se basis, holding that such testimony is always admissible, provided it meets all other traditional evidentiary requirements. At very least this solution would alleviate the burden—now squarely thrust upon courts—of determining in each instance whether the witness possessed that elusive quality characterized by the term "free will."
42
Mr. Justice MARSHALL, with whom Mr. Justice BRENNAN joins, dissenting.
43
While "reaffirm[ing]" the holding of Wong Sun v. United States, 371 U.S. 471, 485, 83 S.Ct. 407, 416, 9 L.Ed.2d 441 (1963), that verbal evidence, like physical evidence, may be "fruit of the poisonous tree," the Court today "significantly qualif[ies]" Wong Sun's further conclusion, id., at 486, 83 S.Ct. at 416, that no " 'logical distinction' " can be drawn between verbal and physical evidence for purposes of the exclusionary rule. Ante, at 275. In my view, the distinction that the Court attempts to draw cannot withstand close analysis. To extend "a time-worn metaphor," Harrison v. United States, 392 U.S. 219, 222, 88 S.Ct. 2008, 20 L.Ed.2d 1047 (1968), I do not believe that the same tree, having its roots in an unconstitutional search or seizure, can bear two different kinds of fruit, with one kind less susceptible than the other of exclusion on Fourth Amendment grounds. I therefore dissent.
44
The Court correctly states the question before us: whether the connection between the police officer's concededly unconstitutional search and Hennessey's disputed testimony was "so attenuated as to dissipate the taint," Nardone v. United States, 308 U.S. 338, 341, 60 S.Ct. 266, 268, 84 L.Ed. 307 (1939). See ante, at 274. In resolving questions of attenuation, courts typically scrutinize the facts of the individual case, with particular attention to such matters as the "temporal proximity" of the official illegality and the discovery of the evidence, "the presence of intervening circumstances," and "the purpose and flagrancy of the official misconduct." Brown v. Illinois, 422 U.S. 590, 603-604, 95 S.Ct. 2254, 2262, 45 L.Ed.2d 416 (1975). The Court retains this general framework, but states that "[a]ttenuation analysis" should be "concerned with the differences between live-witness testimony and inanimate evidence." Ante, at 278-279. The differences noted by the Court, however, have to a large extent already been accommodated by current doctrine. Where they have not been so accommodated, it is because the differences asserted are either illusory or of no relevance to the issue of attenuation.
45
One difference mentioned by the Court is that witnesses, unlike inanimate objects, "can, and often do, come forward and offer evidence entirely of their own volition." Ante, at 276. Recognition of this obvious fact does nothing to advance the attenuation inquiry. We long ago held that, if knowledge of evidence is gained from a source independent of police illegality, the evidence should be admitted. Silverthorne Lumber Co. v. United States, 251 U.S. 385, 392, 40 S.Ct. 182, 64 L.Ed. 319 (1920) (Holmes, J.). This "independent source" rule would plainly apply to a witness whose identity is discovered in an illegal search but who later comes to the police for reasons unrelated to the official misconduct. In the instant case, however, as the Court recognizes, ante, at 273, there is a " 'straight and uninterrupted' " road between the illegal search and the disputed testimony.
46
Even where the road is uninterrupted, in some cases the Government may be able to show that the illegally discovered evidence would inevitably have come to light in the normal course of a legal police investigation. Assuming such evidence is admissible—a proposition that has been questioned, Fitzpatrick v. New York, 414 U.S. 1050, 94 S.Ct. 554, 38 L.Ed.2d 338 (1973) (White, J., dissenting from denial of certiorari)—this "inevitable discovery" rule would apply to admit the testimony of a witness who, in the absence of police misconduct, would have come forward "entirely of [his or her] own volition." Again, however, no such situation is presented by this case, since the Court accepts the findings of the two lower courts that Hennessey's testimony would not inevitably have been discovered. Ante, at 1058-1059.
47
Both the independent-source and inevitable-discovery rules, moreover, can apply to physical evidence as well as to verbal evidence. The police may show, for example, that they learned from an independent source, or would inevitably have discovered through legal means, the location of an object that they also knew about as a result of illegal police activity. It may be that verbal evidence is more likely to have an independent source, because live witnesses can indeed come forward of their own volition, but this simply underscores the degree to which the Court's approach involves a form of judicial "double counting." The Court would apparently first determine whether the evidence stemmed from an independent source or would inevitably have been discovered; if neither of these rules was found to apply, as here, the Court would still somehow take into account the fact that, as a general proposition (but not in the particular case), witnesses sometimes do come forward of their own volition.
48
The Court makes a related point that "[t]he greater the willingness of the witness to freely testify, . . . the smaller the incentive to conduct an illegal search to discover the witness." Ante, at 276. The somewhat incredible premise of this statement is that the police in fact refrain from illegal behavior in which they would otherwise engage because they know in advance both that a witness will be willing to testify and that he or she "will be discovered by legal means." Ibid. This reasoning surely reverses the normal sequence of events; the instances must be very few in which a witness' willingness to testify is known before he or she is discovered. In this case, for example, the police did not even know that Hennessey was a potentially valuable witness, much less whether she would be willing to testify, prior to conducting the illegal search. See ante, at 279-280. When the police are certain that a witness "will be discovered by legal means," ante, at 276—if they ever can be certain about such a fact they of course have no incentive to find him or her by illegal means, but the same can be said about physical objects that the police know will be discovered legally.
49
The only other point made by the Court is that exclusion of testimony "perpetually disable[s] a witness from testifying about relevant and material facts." Ante, at 277. The "perpetual . . . disable[ment]" of which the Court speaks, however, applies as much to physical as to verbal evidence. When excluded, both types of evidence are lost for the duration of the particular trial, despite their being "relevant and material . . . [and] UNRELATED . . . TO THE PURPOSE OF THE ORIGINALLY ILLEGAL SEARCh." ibid. Moreover, while it is true that "often" the exclusion of testimony will be very costly to society, ante, at 278, at least as often the exclusion of physical evidence—such as heroin in a narcotics possession case or business records in a tax case—will be as costly to the same societal interests. But other, more important societal interests, see Brown v. Illinois, 422 U.S., at 599-600, 95 S.Ct., at 2259-2260; Wong Sun v. United States, 371 U.S., at 486, 83 S.Ct., at 416, have led to the rule, which the Court today reaffirms, that "fruits of the poisonous tree" must be excluded despite their probative value, unless the facts of the case justify a finding of sufficient attenuation.
50
The facts of this case do not justify such a finding. Although, as the Court notes, ante, at 272; see ante, at 279, four months elapsed between the illegal search and the FBI's first contact with Hennessey, the critical evidence was provided at the time and place of the search, when the police officer questioned Hennessey and she identified respondent, ante, at 270. The time that elapsed thereafter is of no more relevance than would be a similar time period between the discovery of an object during an illegal search and its later introduction into evidence at trial. In this case, moreover, there were no intervening circumstances between Hennessey's statement at the time of the search and her later testimony. She did not come to the authorities and ask to testify, despite being a student of police science; an FBI agent had to go to her home and interrogate her. Ante, at 272.
51
Finally, whatever the police officer's purpose in the flower shop on the day of the search, the search itself was not even of arguable legality, as was conceded by the Government below. 542 F.2d 136, 140 n. 5 (CA2 1976). It is also undisputed that the shop had been under surveillance as part of an ongoing gambling investigation in which the local police force had actively participated; its participation included interception of at least one of respondent's telephone conversations in the very month of the search. Ante, at 271-272, and n. 2. Under all of the circumstances, the connection here between the official illegality and the disputed testimony cannot be deemed "so attenuated as to dissipate the taint." The District Court therefore properly excluded the testimony.
52
I would affirm the judgment of the Court of Appeals.
1
Appeal from order the suppression motion is, of course, authorized by the clear language of 18 U.S.C. § 3731 (1976 ed.). That section permits "[a]n appeal by the United States . . . from a decision or order of a district courts [sic ] suppressing or excluding evidence . . ., not made after the defendant has been put in jeopardy and before the verdict or finding on an indictment or information . . .." If Congress had intended only pretrial suppression orders to be appealable, it would not have added the phrase "and before the verdict or finding on an indictment or information."
2
The extent of the continued investigation is not made clear on the record but we do know at least that on December 3, 1974, a telephone conversation between Millow and Ceccolini, which implicated the latter in a policy betting operation, was intercepted by local police participating in a combined federal-state gambling investigation.
3
Respondent was also indicted on a second count which charged that he had knowingly made a false statement when he testified that he did not know Hank Bucci was involved in gambling operations. The judge found respondent not guilty on this count, however, because "although there is evidence to support this charge the government has not met its burden of proof beyond a reasonable doubt." App. to Pet. for Cert. 28a.
4
Of course, the analysis might be different where the search was conducted by the police for the specific purpose of discovering potential witnesses.
1
Empirically speaking, though, I have the gravest doubts as to whether the exclusion of evidence, in and of itself, has any direct appreciable effect on a policeman's behavior in most situations—emergency actions in particular. See Bivens v. Six Unknown Fed. Narcotics Agents, 403 U.S. 388, 416-417, 426-427, 91 S.Ct. 1999, 2014-2015, 2019-2020, 29 L.Ed.2d 619 (1971) (Burger, C. J., dissenting).
2
J. Sartre, Being and Nothingness 433 (Barnes trans. 1956).
3
A somewhat similar hurdle is presented in civil cases, which may rest decision on the standard of a "reasonable man's" actions. In those circumstances we assume that a person is ordinarily capable of conforming conduct to an objective standard of reasonableness. Consequently, while the assumption is indulged that the person possesses control over his actions, there is generally no need to inquire into mental processes as such.
4
Perhaps a case might arise in which the police conducted a search only for the purpose of obtaining the names of witnesses. In such a circumstance it is possibly arguable that the exclusion of any testimony gained as a result of the search would have an effect on official behavior. This clearly did not occur here, nor can I conceive of many instances in which it would. In any event, the decision to exclude such testimony should depend on the officers' motivation and not on the "free will" of the witnesses. I would not want to speculate, however, as to whether such an unlikely case would justify modifying a per se approach to this general problem.
| 01
|
435 U.S. 223
98 S.Ct. 1029
55 L.Ed.2d 234
Claude D. BALLEW, Petitioner,v.State of GEORGIA.
No. 76-761.
Argued Nov. 1, 1977.
Decided March 21, 1978.
Syllabus
Petitioner, who was charged with committing a misdemeanor, was tried before a five-person jury pursuant to Georgia law, and convicted. Though a criminal trial by a six-person jury is permissible under Williams v. Florida, 399 U.S. 78, 90 S.Ct. 1893, 26 L.Ed.2d 446, petitioner maintains that a trial before a jury of less than six is unconstitutional, a contention that the Georgia courts rejected. Held: The judgment is reversed and the case is remanded. Pp. 229-245; 245; 245-246.
138 Ga.App. 530, 227 S.E.2d 65, reversed and remanded.
Mr. Justice BLACKMUN, joined by Mr. Justice STEVENS, concluded that a criminal trial to a jury of less than six persons substantially threatens Sixth and Fourteenth Amendment guarantees. Georgia has presented no persuasive argument to the contrary. Neither the financial benefit nor the more dubious time-saving benefit claimed is a factor of sufficient significance to offset the substantial threat to the constitutional guarantees that reducing the jury from six to five would create. Pp. 229-245.
Mr. Justice WHITE concluded that a jury of less than six would not satisfy the fair-cross-section requirement of the Sixth and Fourteenth Amendments. P. 245.
Mr. Justice POWELL, with whom The Chief Justice and Mr. Justice REHNQUIST joined, concluded that, though the line between five- and six-member juries is difficult to justify, a line has to be drawn somewhere if the substance of jury trial in criminal cases is to be preserved. P. 245-246.
Michael Clutter, Atlanta, Ga., for petitioner, pro hac vice by special leave of Court.
Leonard W. Rhodes, Atlanta, Ga., for respondent.
Mr. Justice BLACKMUN announced the judgment of the Court and delivered an opinion in which Mr. Justice STEVENS joined.
1
This case presents the issue whethe a state criminal trial to a jury of only five persons deprives the accused of the right to trial by jury guaranteed by him by the Sixth and Fourteenth Amendments.1 Our resolution of the issue requires an application of principles enunciated in Williams v. Florida, 399 U.S. 78, 90 S.Ct. 1893, 26 L.Ed.2d 446 (1970), where the use of a six-person jury in a state criminal trial was upheld against similar constitutional attack.
2
* In November 1973 petitioner Claude Davis Ballew was the manager of the Paris Adult Theatre at 320 Peachtree Street, Atlanta, Ga. On November 9 two investigators from the Fulton County Solicitor General's office viewed at the theater a motion picture film entitled "Behind the Green Door." Record 46-48, 90. After they had seen the film, they obtained a warrant for its seizure, returned to the theater, viewed the film once again, and seized it. Id., at 48-50, 91. Petitioner and a cashier were arrested. Investigators returned to the theater on November 26, viewed the film in its entirety, secured still another warrant, and on November 27 once again viewed the motion picture and seized a second copy of the film. Id., at 53-55.
3
On September 14, 1974, petitioner was charged in a two-count misdemeanor accusation with
4
"distributing obscene materials in violation of Georgia Code Section 26-2101 in that the said accused did, knowing the obscene nature thereof, exhibit a motion picture film entitled 'Behind the Green Door' that contained obscene and indecent scenes . . . ." App. 4-6.2
5
Petitioner was brought to trial in the Criminal Court of Fulton County.3 After a jury of 5 persons had been selected and sworn, petitioner moved that the court impanel a jury of 12 persons. Record 37-38.4 That court, however, tried its misdemeanor cases before juries of five persons pursuant to Ga.Const., Art. 6, § 16, ¶ 1, codified as Ga.Code § 2-5101 (1975), and to 1890-1891 Ga.Laws, No. 278, pp. 937-938, and 1935 Ga.Laws, No. 38, p. 498.5 Petitioner contended that for an obscenity trial, a jury of only five was constitutionally inadequate to assess the contemporary standards of the community. Record 13, 38. He also argued that the Sixth and Fourteenth Amendments required a jury of at least six members in criminal cases. Id., at 38.
6
The motion for a 12-person jury was overruled, and the trial went on to its conclusion before the 5-person jury that had been impaneled. At the conclusion of the trial, the jury deliberated for 38 minutes and returned a verdict of guilty on both counts of the accusation. Id., at 205-208. The court imposed a sentence of one year and a $1,000 fine on each count, the periods of incarceration to run concurrently and to be suspended upon payment of the fines. Id., at 16-17, 209. After a subsequent hearing, the court denied an amended motion for a new trial.6
7
Petitioner took an appeal to the Court of Appeals of the State of Georgia. There he argued: First, the evidence was insufficient. Second, the trial court committed several First Amendment errors, namely, that the film as a matter of law was not obscene, and that the jury instructions incorrectly explained the standard of scienter, the definition of obscenity, and the scope of comm nity standards. Third, the seizures of the films were illegal. Fourth, the convictions on both counts had placed petitioner in double jeopardy because he had shown only one motion picture. Fifth, the use of the five-member jury deprived him of his Sixth and Fourteenth Amendment right to a trial by jury. Id., at 222-224.
8
The Court of Appeals rejected petitioner's contentions. 138 Ga.App. 530, 227 S.E.2d 65 (1976). The court independently reviewed the film in its entirety and held it to be "hard core pornography" and "obscene as a matter of constitutional law and fact." Id., at 532-533, 227 S.E.2d, at 67-68. The evidence was sufficient to support the jury's conclusion that petitioner possessed the requisite scienter. As manager of the theater, petitioner had advertised the movie, had sold tickets, was present when the films were exhibited, had pressed the button that allowed entrance to the seating area, and had locked the door after each arrest. This evidence, according to the court, met the constructive-knowledge standard of § 26-2101. The court found no errors in the instructions, in the issuance of the warrants, or in the presence of the two convictions. In its consideration of the 5-person-jury issue, the court noted that Williams v. Florida had not established a constitutional minimum number of jurors. Absent a holding by this Court that a five-person jury was constitutionally inadequate, the Court of Appeals considered itself bound by Sanders v. State, 234 Ga. 586, 216 S.E.2d 838 (1975), cert. denied, 424 U.S. 931, 96 S.Ct. 1145, 47 L.Ed.2d 340 (1976), where the constitutionality of the five-person jury had been upheld. The court also cited the earlier case of McIntyre v. State, 190 Ga. 872, 11 S.E.2d 5 (1940), a holding to the same general effect but without elaboration.
9
The Supreme Court of Georgia denied certiorari. App. 26.
10
In his petition for certiorari here, petitioner raised three issues: the unconstitutionality of the five-person jury; the constitutional sufficiency of the jury instructions on scienter and constructive, rather than actual, knowledge of the contents of the film; and obscenity vel non. We granted certiorari. 429 U.S. 1071, 97 S.Ct. 807, 50 L.Ed.2d 789 (1977). Because we now hold that the five-member jury does not satisfy the jury trial guarantee of the Sixth Amendment, as applied to the States through the Fourteenth, we do not reach the other issues.
II
11
The Fourteenth Amendment guarantees the right of trial by jury in all state nonpetty criminal cases. Duncan v. Louisiana, 391 U.S. 145, 159-162, 88 S.Ct. 1444, 1452-1454, 20 L.Ed.2d 491 (1968). The Court in Duncan applied this Sixth Amendment right to the States because "trial by jury in criminal cases is fundamental to the American scheme of justice." Id., at 149, 88 S.Ct., at 1447. The right attaches in the present case because the maximum penalty for violating § 26-2101, as it existed at the time of the alleged offenses, exceeded six months' imprisonment.7 See Baldwin v. New York, 399 U.S. 66, 68-69, 90 S.Ct. 1886, 1887-1888, 26 L.Ed.2d 437 (1970) (opinion of White, J.).
12
In Williams v. Florida, 399 U.S., at 100, 90 S.Ct., at 1905, the Court reaffirmed that the "purpose of the jury trial, as we noted in Duncan, is to prevent oppression by the Government. 'Providing an accused with the right to be tried by a jury of his peers gave him an inestimable safeguard aga nst the corrupt or overzealous prosecutor and against the compliant, biased, or eccentric judge.' Duncan v. Louisiana, [391 U.S.,] at 156, 88 S.Ct., at 1451." See Apodaca v. Oregon, 406 U.S. 404, 410, 92 S.Ct. 1628, 1632, 32 L.Ed.2d 184 (1972) (opinion of White, J.). This purpose is attained by the participation of the community in determinations of guilt and by the application of the common sense of laymen who, as jurors, consider the case. Williams v. Florida, 399 U.S., at 100, 90 S.Ct., at 1905.
13
Williams held that these functions and this purpose could be fulfilled by a jury of six members. As the Court's opinion in that case explained at some length, id., at 86-90, 90 S.Ct., at 1898-1900, common-law juries included 12 members by historical accident, "unrelated to the great purposes which gave rise to the jury in the first place." Id., at 89-90, 90 S.Ct., at 1900. The Court's earlier cases that had assumed the number 12 to be constitutionally compelled were set to one side because they had not considered history and the function of the jury.8 Id., at 90-92, 90 S.Ct., at 1900-1901. Rather than requiring 12 members, then, the Sixth Amendment mandated a jury only of sufficient size to promote group deliberation, to insulate members from outside intimidation, and to provide a representative cross-section of the community. Id., at 100, 90 S.Ct., at 1905. Although recognizing that by 1970 little empirical research had evaluated jury performance, the Court found no evidence that the reliability of jury verdicts diminished with six-member panels. Nor did the Court anticipate significant differences in result, including the frequency of "hung" juries. Id., at 101-102, and nn. 47 and 48, 90 S.Ct., at 1906-1907. Because the reduction in size did not threaten exclusion of any particular class from jury roles, concern that the representative or cross-section character of the jury would suffer with a decrease to six members seemed "an unrealistic one." Id., at 102, 90 S.Ct., at 1907. As a consequence, the six-person jury was held not to violate the Sixth and Fourteenth Amendments.
III
14
When the Court in Williams permitted the reduction in jury size—or, to put it another way, when it held that a jury of six was not unconstitutional—it expressly reserved ruling on the issue whether a number smaller than six passed constitutional scrutiny. Id., at 91 n. 28, 90 S.Ct., at 1901.9 See Johnson v. Louisiana, 406 U.S. 356, 365, -366, 92 S.Ct. 1620, 1626, 32 L.Ed.2d 152 (1972) (concurring opinion). The Court refused to speculate when this so-called "slippery slope" would become too steep. We face now, however, the two-fold question whether a further reduction in the size of the state criminal trial jury does make the grade too dangerous, that is, whether it inhibits the functioning of the jury as an institution to a significant degree, and, if so, whether any state interest counterbalances and justifies the disruption so as to preserve its constitutionality.
15
Williams v. Florida and Colgrove v. Battin, 413 U.S. 149, 93 S.Ct. 2448, 37 L.Ed.2d 522 (1973) (where the Court held that a jury of six members did not violate the Seventh Amendment right to a jury trial in a civil case), generated a quantity of scholarly work on jury size.10 These writings do not draw or identify a bright line below which the number of jurors would not be able to function as required by the standards enunciated in Williams. On the other hand, they raise significant questions about the wisdom and constitutionality of a reduction below six. We examine these concerns:
16
First, recent empirical data suggest that progressively smaller juries are less likely to foster effective group deliberation. At some point, this decline leads to inaccurate fact-finding and incorrect application of the common sense of the community to the facts. Generally, a positive correlation exists between group size and the quality of both group performance and group productivity.11 A variety of explanations have been offered for this conclusion. Several are particularly applicable in the jury setting. The smaller the group, the less likely are members to make critical contributions necessary for the solution of a given problem.12 Because most juries are not permitted to take notes, see Forston, Sense and Non-Sense: Jury Trial Communication, 1975 B.Y.U.L.Rev. 601, 631-633, memory is important for accurate jury deliberations. As juries decrease in size, then, they are less likely to have members who remember each of the important pieces of evidence or argument.13 Furthermore, the smaller the group, the less likely it is to overcome the biases of its members to obtain an accurate result.14 When individual and group decisionmaking were compared, it was seen that groups performed better because prejudices of individuals were frequently counterbalanced, and objectivity resulted. Groups also exhibited increased motivation and self-criticism. All these advantages, except, perhaps, self-motivation, tend to diminish as the size of the group diminishes.15 Because juries frequently face complex problems laden with value choices, the benefits are important and should be retained. In particular, the counterbalancing of various biases is critical to the accurate application of the common sense of the community to the facts of any given case.
17
Second, the data now raise doubts about the accuracy of the results achieved by smaller and smaller panels. Statistical studies suggest that the risk of convicting an innocent person (Type I error) rises as the size of the jury diminishes.16 Because the risk of not convicting a guilty person (Type II error) increases with the size of the panel,17 an optimal jury size can be selected as a function of the interaction between the two risks. Nagel and Neef concluded that the optimal size, for the purpose of minimizing errors, should vary with the importance attached to the two types of mistakes. After weighing Type I error as 10 times more significant than Type II, perhaps not an unreasonable assumption, they concluded that the optimal jury size was between six and eight. As the size diminished to five and below, the weighted sum of errors increased because of the enlarging risk of the conviction of innocent defendants.18
18
Another doubt about progressively smaller juries arises from the increasing inconsistency that results from the decreases. Saks argued that the "more a jury type fosters consistency, the greater will be the proportion of juries which select the correct (i. e., the same) verdict and the fewer 'errors' will be made." Saks 86-87. From his mock trials held before undergraduates and former jurors, he computed the percentage of "correct" decisions rendered by 12-person and 6-person panels. In the student experiment, 12-person groups reached correct verdicts 83% of the time; 6-person panels reached correct verdicts 69% of the time. The results for the former-juror study were 71% for the 12-person groups and 57% for the 6-person groups. Ibid. Working with statistics described in H. Kalven & H. Zeisel, The American Jury 460 (1966), Nagel and Neef tested the average conviction propensity of juries, that is, the likelihood that any given jury of a set would convict the defendant.19 They found that half of all 12-person juries would have average conviction propensities that varied by no more than 20 points. Half of all six-person juries, on the other hand, had average conviction propensities varying by 30 points, a difference they found significant in both real and percentage terms.20 Lempert reached similar results when he considered the likelihood of juries to compromise over the various views of their members, an important phenomenon for the fulfillment of the common sense function. In civil trials averaging occurs with respect to damages amounts. In criminal trials it relates to numbers of counts and lesser included offenses.21 And he predicted that compromises would be more consistent when larger juries were employed. For example, 12-person juries could be expected to reach extreme compromises in 4% of the cases, while 6-person panels would reach extreme results in 16%.22 All three of these post-Williams studies, therefore, raise significant doubts about the consistency and reliability of the decisions of smaller juries.
19
Third, the data suggest that the verdicts of jury deliberation in criminal cases will vary as juries become smaller, and that the variance amounts to an imbalance to the detriment of one side, the defense. Both Lempert and Zeisel found that the number of hung juries would diminish as the panels decreased in size. Zeisel said that the number would be cut in half—from 5% to 2.4% with a decrease from 12 to 6 members.23 Both studies emphasized that juries in criminal cases generally hang with only one, or more likely two jurors remaining unconvinced of guilt.24 Also, group theory suggests that a person in the minority will adhere to his position more frequently when he has at least one other person supporting his argument.25 In the jury setting the significance of this tendency is demonstrated by the following figures: If a minority viewpoint is shared by 10% of the community, 28.2% of 12-member juries may be expected to have no minority representation, but 53.1% of 6-member juries would have none. Thirty-four percent of 12-member panels could be expected to have two minority members, while only 11% of 6-member panels would have two.26 As the numbers dim nish below six, even fewer panels would have one member with the minority viewpoint and still fewer would have two. The chance for hung juries would decline accordingly.
20
Fourth, what has just been said about the presence of minority viewpoint as juries decrease in size foretells problems not only for jury decisionmaking, but also for the representation of minority groups in the community. The Court repeatedly has held that meaningful community participation cannot be attained with the exclusion of minorities or other identifiable groups from jury service. "It is part of the established tradition in the use of juries as instruments of public justice that the jury be a body truly representative of the community." Smith v. Texas, 311 U.S. 128, 130, 61 S.Ct. 164, 165, 85 L.Ed. 84 (1940). The exclusion of elements of the community from participation "contravenes the very idea of a jury . . . composed of 'the peers or equals of the person whose rights it is selected or summoned to determine.' " Carter v. Jury Comm'n, 396 U.S. 320, 330, 90 S.Ct. 518, 524, 24 L.Ed.2d 549 (1970), quoting Strauder v. West Virginia, 100 U.S. 303, 308, 25 L.Ed. 664 (1880). Although the Court in Williams concluded that the six-person jury did not fail to represent adequately a cross-section of the community, the opportunity for meaningful and appropriate representation does decrease with the size of the panels. Thus, if a minority group constitutes 10% of the community, 53.1% of randomly selected six-member juries could be expected to have no minority representative among their members, and 89% not to have two.27 Further reduction in size will erect additional barriers to representation.
21
Fifth, several authors have identified in jury research methodological problems tending to mask differences in the operation of smaller and larger juries.28 For example, because the judicial system handles so many clear cases, decisionmakers will reach similar results through similar analyses most of the time. One study concluded that smaller and larger juries could disagree in their verdicts in no more than 14% of the cases.29 Disparities, therefore, appear in only small percentages. Nationwide, however, these small percentages will represent a large number of cases. And it is with respect to those cases that the jury trial right has its greatest value. When the case is close, and the guilt or innocence of the defendant is not readily apparent, a properly functioning jury system will insure evaluation by the sense of the community and will also tend to insure accurate factfinding.30
22
Studies that aggregate data also risk masking case-by-case differences in jury deliberations. The authors, H. Kalven and H. Zeisel, of The American Jury (1966), examined the judge-jury disagreement. They found that judges held for plaintiffs 57% of the time and that juries held for plaintiffs 59%, an insignificant difference. Yet case-by-case comparison revealed judge-jury disagreement in 22% of the cases. Id., at 63, cited in Lempert 656. This casts doubt on the conclusion of another study that compared the aggregate results of civil cases tried before 6-member juries with those of 12-member jury trials.31 The investigator in that study had claimed support for his hypothesis that damages awards did not vary with the reduction in jury size. Although some might say that figures in the aggregate may have supported this conclusion, a closer view of the cases reveals greater variation in the results of the smaller panels, i. e., a standard deviation of $58,335 for the 6-member juries, and of $24,834 for the 12-member juries.32 Again, the averages masked significant case-by-case differences that must be considered when evaluating jury function and performance.
IV
23
While we adhere to, and reaffirm our holding in Williams v. Florida, these studies, most of which have been made since Williams was decided in 1970, lead us to conclude that the purpose and functioning of the jury in a criminal trial is seriously impaired, and to a constitutional degree, by a reduction in size to below six members. We readily admit that we do not pretend to discern a clear line between six members and five. But the assembled data raise substantial doubt about the reliability and appropriate representation of panels smaller than six. Because of the fundamental importance of the jury trial to the American system of criminal justice, any further reduction that promotes inaccurate and possibly biased decisionmaking, that causes untoward differences in verdicts, and that prevents juries from truly representing their communities, attains constitutional significance.
24
Georgia here presents no persuasive argument that a reduction to five does not offend important Sixth Amendment interests. First, its reliance on Johnson v. Louisiana, 406 U.S. 356, 92 S.Ct. 1620, 32 L.Ed.2d 152 (1972), for the proposition that the Court previously has approved the five-person jury is misplaced. In Johnson the petitioner challenged the Louisiana statute that permitted felony convictions on less-than-unanimous verdicts. The prosecution had to garner only nine votes of the 12-member jury to convict in a felony trial. The Court held that the statute did not violate the due process guarantee by diluting the reasonable-doubt standard. Id., at 363, 92 S.Ct., at 1625. The only discussion of the five-person panels, which heard less serious offenses, was with respect to the petitioner's equal protection challenge. He contended that requiring only nine members of a 12-per on panel to convict in a felony case was a deprival of equal protection when a unanimous verdict was required from the 5-member panel used in a misdemeanor trial. The Court held merely that the classification was not invidious. Id., at 364, 92 S.Ct., at 1625. Because the issue of the constitutionality of the five-member jury was not then before the Court, it did not rule upon it.
25
Second, Georgia argues that its use of five-member juries does not violate the Sixth and Fourteenth Amendments because they are used only in misdemeanor cases. If six persons may constitutionally assess the felony charge in Williams, the State reasons, five persons should be a constitutionally adequate number for a misdemeanor trial. The problem with this argument is that the purpose and functions of the jury do not vary significantly with the importance of the crime. In Baldwin v. New York, 399 U.S. 66, 90 S.Ct. 1886, 26 L.Ed.2d 437 (1970), the Court held that the right to a jury trial attached in both felony and misdemeanor cases. Only in cases concerning truly petty crimes, where the deprivation of liberty was minimal, did the defendant have no constitutional right to trial by jury. In the present case the possible deprivation of liberty is substantial. The State charged petitioner with misdemeanors under Ga.Code Ann. § 26-2101 (1972), and he has been given concurrent sentences of imprisonment, each for one year, and fines totaling $2,000 have been imposed. We cannot conclude that there is less need for the imposition and the direction of the sense of the community in this case than when the State has chosen to label an offense a felony.33 The need for an effective jury here must be judged by the same standards announced and applied in Williams v. Florida.
26
Third, the retention by Georgia of the unanimity requirement does not solve the Sixth and Fourteenth Amendment problem. Our concern has to do with the ability of the smaller group to perform the functions mandated by the Amendments. That a five-person jury may return a unanimous decision does not speak to the questions whether the group engaged in meaningful deliberation, could remember all the important facts and arguments, and truly represented the sense of the entire community. Despite the presence of the unanimity requirement, then, we cannot conclude that "the interest of the defendant in having the judgment of his peers interposed between himself and the officers of the State who prosecute and judge him is equally well served" by the five-person panel. Apodaca v. Oregon, 406 U.S., at 411, 92 S.Ct., at 1633 (opinion of White, J.).
27
Fourth, Georgia submits that the five-person jury adequately represents the community because there is no arbitrary exclusion of any particular class. We agree that it has not been demonstrated that the Georgia system violates the Equal Protection Clause by discriminating on the basis of race or some other improper classification. See Carter v. Jury Comm'n, 396 U.S. 320, 90 S.Ct. 518, 24 L.Ed.2d 549 (1970); Smith v. Texas, 311 U.S. 128, 61 S.Ct. 164, 85 L.Ed. 84 (1940). But the data outlined above raise substantial doubt about the ability o juries truly to represent the community as membership decreases below six. If the smaller and smaller juries will lack consistency, as the cited studies suggest, then the sense of the community will not be applied equally in like cases. Not only is the representation of racial minorities threatened in such circumstances, but also majority attitude or various minority positions may be misconstrued or misapplied by the smaller groups. Even though the facts of this case would not establish a jury discrimination claim under the Equal Protection Clause, the question of representation does constitute one factor of several that, when combined, create a problem of constitutional significance under the Sixth and Fourteenth Amendments.
28
Fifth, the empirical data cited by Georgia do not relieve our doubts. The State relies on the Saks study for the proposition that a decline in the number of jurors will not affect the aggregate number of convictions or hung juries. Tr. of Oral Arg. 27. This conclusion, however, is only one of several in the Saks study; that study eventually concludes:
29
"Larger juries (size twelve) are preferable to smaller juries (six). They produce longer deliberations, more communication, far better community representation, and, possibly, greater verdict reliability (consistency)." Saks 107.
30
Far from relieving our concerns, then, the Saks study supports the conclusion that further reduction in jury size threatens Sixth and Fourteenth Amendment interests.
31
Methodological problems prevent reliance on the three studies that do purport to bolster Georgia's position. The reliability of the two Michigan studies cited by the State has been criticized elsewhere.34 The critical problem with the Michigan laboratory experiment, which used a mock civil trial, was the apparent clarity of the case. Not one of the juries found for the plaintiff in the tort suit; this masked any potential difference in the decisionmaking of larger and smaller panels. The results also have been doubted because in the experiment only students composed the juries, only 16 juries were tested, and only a video tape of the mock trial was presented.35 The statistical review of the results of actual jury trials in Michigan erroneously aggregated outcomes. It is also said that it failed to take account of important changes of court procedure initiated at the time of the reduction in size from 12 to 6 members.36 The Davis study, which employed a mock criminal trial for rape, also presented an extreme set of facts so that none of the panels rendered a guilty verdict.37 None of these three reports, therefore, convinces us that a reduction in the number of jurors below six will not affect to a constitutional degree the functioning of juries in criminal trials.
V
32
With the reduction in the number of jurors below six creating a substantial threat to Sixth and Fourteenth Amendment guarantees, we must consider whether any interest of the State justifies the reduction. We find no significant state advantage in reducing the number of jurors from six to five.
33
The States utilize juries of less than 12 primarily for administrative reasons. Savings in court time and in financial costs are claimed to justify the reductions.38 The inancial benefits of the reduction from 12 to 6 are substantial; this is mainly because fewer jurors draw daily allowances as they hear cases.39 On the other hand, the asserted saving in judicial time is not so clear. Pabst in his study found little reduction in the time for voir dire with the six-person jury because many questions were directed at the veniremen as a group.40 Total trial time did not diminish, and court delays and backlogs improved very little.41 The point that is to be made, of course, is that a reduction in size from six to five or four or even three would save the States little. They could reduce slightly the daily allowances, but with a reduction from six to five the saving would be minimal. If little time is gained by the reduction from 12 to 6, less will be gained with a reduction from 6 to 5. Perhaps this explains why only two States, Georgia and Virginia,42 have reduced the size of juries in certain nonpetty criminal cases to five. Other States appear content with six members or more.43 In short the State has offered little or no justification for its reduction to five members. Petitioner, therefore, has established that his trial on criminal charges before a five-member jury deprived him of the right to trial by jury guaranteed by the Sixth and Fourteenth Amendments.
VI
34
The judgment of the Court of Appeals is reversed, and the case is remanded for further proceedings not inconsistent with this opinion.
35
It is so ordered.
36
Mr. Justice STEVENS, concurring.
37
While I join Mr. Justice BLACKMUN'S opinion, I have not altered the views I expressed in Marks v. United States, 430 U.S. 188, 97 S.Ct. 990, 51 L.Ed.2d 260.
38
Mr. Justice WHITE, concurring in the judgment.
39
Agreeing that a jury of fewer than six persons would fail to represent the sense of the community and hence not satisfy the fair cross-section requirement of the Sixth and Fourteenth Amendments, I concur in the judgment of reversal.
40
Mr. Justice POWELL, with whom THE CHIEF JUSTICE and Mr. Justice REHNQUIST join, concurring in the judgment.
41
I concur in the judgment, as I agree that use of a jury as small as five members, with authority to convict for serious offenses, involves grave questions of fairness. As the opinion of Mr. Justice BLACKMUN indicates, the line between fiveand six-member juries is difficult to justify, but a line has to be d awn somewhere if the substance of jury trial is to be preserved.
42
I do not agree, however, that every feature of jury trial practice must be the same in both federal and state courts. Apodaca v. Oregon, 406 U.S. 404, 414, 92 S.Ct. 1628, 1634, 32 L.Ed.2d 184 (1972) (Powell, J., concurring). Because the opinion of Mr. Justice BLACKMUN today assumes full incorporation of the Sixth Amendment by the Fourteenth Amendment contrary to my view in Apodaca, I do not join it. Also, I have reservations as to the wisdom—as well as the necessity—of Mr. Justice BLACKMUN'S heavy reliance on numerology derived from statistical studies. Moreover, neither the validity nor the methodology employed by the studies cited was subjected to the traditional testing mechanisms of the adversary process.* The studies relied on merely represent unexamined findings of persons interested in the jury system.
43
For these reasons I concur only in the judgment.
44
Mr. Justice BRENNAN, with whom Mr. Justice STEWART and Mr. Justice MARSHALL join.
45
I join Mr. Justice BLACKMUN'S opinion insofar as it holds that the Sixth and Fourteenth Amendments require juries in criminal trials to contain more than five persons. However, I cannot agree that petitioner can be subjected to a new trial, since I continue to adhere to my belief that Ga.Code Ann. § 26-2101 (1972) is overbroad and therefore facially unconstitutional. See Sanders v. Georgia, 424 U.S. 931, 96 S.Ct. 1145, 47 L.Ed.2d 340 (1976) (dissent from denial of certiorari). See also Paris Adult Theatre I v. Slaton, 413 U.S. 49, 73, 93 S.Ct. 2628, 2665, 37 L.Ed.2d 446 (1973) (Brennan, J., dissenting).
1
The Sixth Amendment reads:
"In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence."
The Amendment's provision as to trial by jury is made applicable to the States by the Fourteenth Amendment. Duncan v. Louisiana, 391 U.S. 145, 88 S.Ct. 1444, 20 L.Ed.2d 491 (1968).
2
Georgia Code Ann. § 26-2101 (1972), in effect at the time of the alleged offenses, was entitled "Distributing obscene materials" and read:
"(a) A person commits the offense of distributing obscene materials when he sells, lends, rents, leases, gives, advertises, publishes, exhibits or otherwise disseminates to any person any obscene material of any description, knowing the obscene nature thereof, or who offers to do so, or who possesses such material with the intent so to do: Provided, that the word 'knowing' as used herein shall be deemed to be either actual or constructive knowledge of the obscene contents of the subject matter; and a person has constructive knowledge of the obscene contents if he has knowledge of facts which would put a reasonable and prudent man on notice as to the suspect nature of the material.
"(b) Material is obscene if considered as a whole, applying community standards, its predominant appeal is to prurient interest, that is, a shameful or morbid interest in nudity, sex or excretion, and utterly without redeeming social value and if, in addition, it goes substantially beyond customary limits of candor in describing or representing such matters. . . ."
1975 Ga.Laws No. 204, p. 498, now Ga.Code Ann. § 26-2101 (Supp.1977), entirely superseded the earlier version.
3
The name of the Criminal Court of Fulton County was changed, effective January 2, 1977, by the merger of that court with the Civil Court of Fulton County into a tribunal now known as the State Court of Fulton County. 1976 Ga.Laws No. 1004, p. 3023.
4
Petitioner asked, in the alternative, that the case be transferred to the Fulton County Superior Court. That court had concurrent jurisdiction over the case. Ga.Const., Art. 6, § 4, ¶ 1, codified as Ga.Code § 2-3901 (1975); Nobles v. State, 81 Ga.App. 229, 58 S.E.2d 496 (1950). The Superior Court could have impaneled a jury of 12. Ga.Const., Art. 6, § 16, ¶ 1, codified as Ga.Code § 2-5101 (1975). Because the State had the choice of bringing the case in either the Criminal Court or the Superior Court, petitioner argued that trial before the smaller jury violated equal protection and due process guaranteed him under the Fourteenth Amendment. Record 12-13. The transfer was denied. He has not pressed the contention before this Court, and we do not reach it.
5
1890-1891 Ga.Laws, No. 278, pp. 937-938, states in part:
"The proceedings [in the Criminal Court of Atlanta] after information or accusation, shall conform to the rules governing like proceedings in the Superior Courts, except that the jury in said court, shall consist of five, to be stricken alternately by the defendant and State from a panel of twelve. The defendant shall be entitled to four (4) strikes and the State three (3) and the five remaining jurors shall compose the jury."
The cited 1935 statute changed the name of the Criminal Court of Atlanta to the Criminal Court of Fulton County. It was intimated at oral argument that only this particular court in Georgia employed fewer than six jurors. Tr. of Oral Arg. 25.
Effective March 24, 1976, the number of jurors in the Criminal Court of Fulton County was changed from five to six. 1976 Ga.Laws No. 1003, p. 3019.
Irrespective of its size, the Georgia jury in a criminal trial, in order to convict, must do so by unanimous vote. Ball v. State, 9 Ga.App. 162, 70 S.E. 888 (1911).
6
Petitioner, in his amended motion for a new trial, argued that the films were seized illegally under a defective warrant; that the obscenity statute, § 26-2101, violated the First, Fourth, Fifth, Sixth, and Fourteenth Amendments; that the double conviction had placed petitioner in double jeopardy, in violation of the Fifth Amendment and Ga.Code § 2-108 (1975); that the evidence was insufficient to support the verdicts; that the trial court erroneously excluded the testimony of a defense expert witness; and that the court's instruction on scienter improperly shifted the burden of proof to the defense. Record 19-21.
7
The maximum penalty for a conviction of a misdemeanor in Georgia in 1973 was imprisonment for not to exceed 12 months or a fine not to exceed $1,000, or both. Ga.Code Ann. § 27-2506 (1972). With the change in § 26-2101 effected by 1975 Ga.Laws No. 204, p. 498, the offenses charged against petitioner would now be punishable as for "a misdemeanor of a high and aggravated nature," and the maximum penalty is imprisonment for not to exceed 12 months, or a fine not to exceed $5,000, or both. Ga.Code § 27-2506(c) (Supp.1977).
8
The Court rejected the assumption, made in Thompson v. Utah, 170 U.S. 343, 349, 18 S.Ct. 620, 622, 42 L.Ed. 1061 (1898), and certain later cases, see Patton v. United States, 281 U.S. 276, 288, 50 S.Ct. 253, 254, 74 L.Ed. 854 (1930); Rassmussen v. United States, 197 U.S. 516, 519, 528, 25 S.Ct. 514, 515, 518, 49 L.Ed. 862 (1905); and Maxwell v. Dow, 176 U.S. 581, 586, 20 S.Ct. 448, 450, 44 L.Ed. 597 (1900), that the 12-member feature was a constitutional requirement.
9
In the cited footnote the Court said: "We have no occasion in this case to determine what minimum number can still constitute a 'jury,' but we do not doubt that six is above that minimum."
Respondent picks up the last phrase with absolute literalness here when it argues: "If six is above the minimum, five cannot be below the minimum. There is no number in between." Brief for Respondent 4; Tr. of Oral Arg. 24. We, however, do not accept the proposition that by stating the number six was "above" the constitutional minimum the Court, by implication, held that at least the number five was constitutional. Instead, the Court was holding that six passed constitutional muster but was reserving judgment on any number less than six.
10
E. g., M. Saks, Jury Verdicts (1977) (hereinafter cited as Saks); Bogue & Fritz, The Six-Man Jury, 17 S.D.L.Rev. 285 (1972); Davis, Kerr, Atkin, Holt, & Mech, The Decision Processes of 6- and 12-Person Mock Juries Assigned Unanimous and Two-Thirds Majority Rules, 32 J. of Personality & Soc.Psych. 1 (1975); Diamond, A Jury Experiment Reanalyzed, 7 U.Mich.J.L.Reform 520 (1974); Friedman, Trial by Jury: Criteria for Convictions, Jury Size and Type I and Type II Errors, 26-2 Am.Stat. 21 (Apr. 1972) (hereinafter cited as Friedman); Institute of Judicial Administration, A Comparison of Six- and Twelve-Member Civil Juries in New Jersey Superior and County Courts (1972); Lempert, Uncovering "Nondiscernible" Differences: Empirical Research and the Jury-Size Cases, 73 Mich.L.Rev. 643 (1975) (hereinafter cited as Lempert); Nagel & Neef, Deductive Modeling to Determine an Optimum Jury Size and Fraction Required to Convict, 1975 Wash.U.L.Q. 933 (hereinafter cited as Nagel & Neef); New Jersey Criminal Law Revision Commission, Six-Member Juries (1971); Pabst, Statistical Studies of the Costs of Six-Man versus Twelve-Man Juries, 14 Wm. & Mary L.Rev. 326 (1972) (here-
inafter cited as Pabst); Saks, Ignorance of Science Is No Excuse, 10 Trial 18 (Nov.-Dec. 1974); Thompson, Six Will Do!, 10 Trial 12 (Nov.-Dec. 1974); Zeisel, Twelve is Just, 10 Trial 13 (Nov.-Dec. 1974); Zeisel, . . . And Then There Were None: The Diminution of the Federal Jury, 38 U.Chi.L.Rev. 710 (1971) (hereinafter cited as Zeisel); Zeisel, The Waning of the American Jury, 58 A.B.A.J., 367 (1972); Zeisel & Diamond, "Convincing Empirical Evidence" on the Six Member Jury, 41 U.Chi.L.Rev. 281 (1974) (hereinafter cited as Zeisel & Diamond); Note, The Effect of Jury Size on the Probability of Conviction: An Evaluation of Williams v. Florida, 22 Case W.Res.L.Rev. 529 (1971) (hereinafter cited as Note, Case W. Res.); Note, Six-Member and Twelve-Member Juries: An Empirical Study of Trial Results, 6 U.Mich.J.L.Reform 671 (1973); Note, An Empirical Study of Six- and Twelve-Member Jury Decision-Making Processes, 6 U.Mich.J.L.Reform 712 (1973).
Some of these studies have been pressed upon us by the parties. Brief for Petitioner 7-9; Tr. of Oral Arg. 26-27.
We have considered them carefully because they provide the only basis, besides judicial hunch, for a decision about whether smaller and smaller juries will be able to fulfill the purpose and functions of the Sixth Amendment. Without an examination about how juries and small groups actually work, we would not understand the basis for the conclusion of Mr. Justice Powell that "a line has to be drawn somewhere." We also note that The Chief Justice did not shrink from the use of empirical data in Williams v. Florida, 399 U.S. 78, 100-102, 105, 90 S.Ct. 1893, 1905-1907, 1908, 26 L.Ed.2d 446 (1970), when the data were used to support the constitutionality of the six-person criminal jury, or in Colgrove v. Battin, 413 U.S. 149, 158-160, 93 S.Ct. 2448, 2453-2454, 37 L.Ed.2d 522 (1973), a decision also joined by Mr. Justice Rehnquist.
11
Two researchers have summarized the findings of 31 studies in which the size of groups from 2 to 20 members was an important variable. They concluded that there were no conditions under which smaller groups were superior in the quality of group performance and group productivity. Thomas & Fink, Effects of Group Size, 60 Psych. Bull. 371, 373 (1963), cited in Lempert 685. See Saks 77 et seq., 107.
12
See Faust, Group versus Individual Problem-Solving, 59 J. Ab. & Soc. Psych. 68, 71 (1959), cited in Lempert 685 and 686.
13
Saks 77 et seq.; see Kelley & Thibaut, Group Problem Solving, 4 Handbook of Soc. Psych. 68-69 (2d ed., G. Lindzey & E. Anderson 1969) (hereinafter cited as Kelley & Thibaut).
14
Lempert 687-688, citing Barnlund, A Comparative Study of Individual, Majority, and Group Judgment, 58 J. Ab. & Soc. Psych. 55, 59 (1959); see Kelley & Thibaut 67.
15
Lempert 687-688, citing Barnlund, supra n. 14, 58-59.
16
Friedman; Nagel & Neef.
17
Nagel & Neef 945.
18
Id., at 946-948, 956, 975. Friedman reached a similar conclusion. He varied the appearance of guilt in his statistical study. The more guilty the person appeared, the greater the chance that a 6-member panel would convict when a 12-member panel would not. As jury size was reduced, the risk of Type I error would increase, Friedman said, without a significant corresponding advantage in reducing Type II error. Friedman 23.
19
Nagel & Neef 952, 971, concluded that the average juror had a propensity to convict more frequently than to acquit, a tendency designated by the figure .677. In other words, if the average jury considered the average case, 67.7% of the jurors would vote to convict.
20
With the average juror having a conviction propensity of .677, the average 12-member jury propensities ranged from .579 to .775. The average six-member jury propensities ranged from .530 to .830. Id., at 971-972.
21
Lempert 680.
22
Accord, Zeisel 718; Note, Case W. Res. 547.
23
Zeisel 720; accord, Lempert 676. But see Saks 89-90.
24
Lempert 674-677; Zeisel 719.
25
Asch, Effects of Group Pressure upon the Modification and Distortion of Judgments in Group Dynamics Research and Theory, 189, 195-197 (2d ed., 1960), cited in Lempert 673.
26
Id., at 669, 677.
27
Ibid.; Saks 90.
28
Lempert 648-653; Nagel & Neef 934-937; Saks, Ignorance of Science is No Excuse, supra, n. 10, at 19; Zeisel & Diamond 283-291; Note, Case W. Res. 535.
29
Lempert 648-653.
30
Zeisel and Diamond have criticized one of the more important studies supporting smaller juries. See n. 34, infra. In Note, An Empirical Study of Six- and Twelve-Member Jury Decision-Making Processes, 6 U.Mich.J.L.Reform 712 (1973), the author tested the deliberations of larger and smaller panels by showing to sets of both sizes the video tape of a single mock civil trial. The case concerned an automobile accident and turned on whether the plaintiff had been speeding. If so, Michigan law precluded recovery because of contributory negligence. Of the 16 juries tested, not one found for the plaintiff. This led Zeisel and Diamond to conclude:
"The evidence in the case overwhelmingly favored the defendant . . .. This overpowering bias makes the experiment irrelevant. On the facts of this case, any jury under any rules would probably hav arrived at the same verdict. Hence, to conclude from this experiment that jury size generally has no effect on the verdict is impermissible." Zeisel & Diamond 287.
See also Diamond, A Jury Experiment Reanalyzed, 7 U.Mich.L.Reform 520 (1974). The criticized study was cited and relied upon by the Court in Colgrove v. Battin, 413 U.S. 149, 159 n. 15, 93 S.Ct. 2448, 2454, 37 L.Ed.2d 522 (1973).
31
See Note, Six-Member and Twelve-Member Juries: An Empirical Study of Trial Results, 6 U.Mich.J.L.Reform 671 (1973). This also was cited and relied upon in Colgrove v. Battin, 413 U.S., at 159 n. 15, 93 S.Ct., at 2454.
32
Ziesel & Diamond 289-290. These authors also criticized the Michigan study because it ignored two other important changes that had occurred when the size of civil juries was decreased from 12 to 6 members: A mediation board, which encouraged settlements, had been introduced, and rules that permitted discovery of insurance policy limits had taken effect. See Saks 43.
33
We do not rely on any First Amendment aspect of this case in holding the five-person jury unconstitutional. Nevertheless, the nature of the substance of the misdemeanor charges against petitioner supports the refusal to distinguish between felonies and misdemeanors. The application of the community's standards and common sense is important in obscenity trials where juries must define and apply local standards. See Miller v. California, 413 U.S. 15, 93 S.Ct. 2607, 37 L.Ed.2d 419 (1973). The opportunity for harassment and overreaching by an overzealous prosecutor or a biased judge is at least as significant in an obscenity trial as in one concerning an armed robbery. This fact does not change merely because the obscenity charge may be labeled a misdemeanor and the robbery a felony.
34
Note, Six-Member and Twelve-Member Juries: An Empirical Study of Trial Results, 6 U.Mich.J.L.Reform 671 (1973) (a statistical study of actual jury results), and Note, An Empirical Study of Six- and Twelve-Member Jury Decision-Making Processes, 6 U.Mich.J.L.Ref. 712 (1973) (a laboratory experiment using a mock trial), were both criticized in Saks 43-46, and in Zeisel & Diamond 286-290. The second study was criticized in Diamond, A Jury Experiment Reanalyzed, 7 U.Mich.J.L.Ref. 520 (1974). The Michigan studies were advanced by the State at oral argument. Tr. of Oral Arg. 27.
35
Saks 45.
36
Id., at 43-44; Zeisel & Diamond 288-290.
37
Davis, et al., supra n. 10, at 7, criticized in Saks 49-51.
38
See New Jersey Criminal Law Revision Commission, Six-Member Juries (1971); Bogue & Fritz, The Six-Man Jury, 17 S.D.L.Rev. 285 (1972).
39
It has been said that a reduction from 12 jurors to 6 throughout the federal system could save at least $4 million annually. Zeisel, Twelve is Just, 10 Trial 13 (Nov.-Dec. 1974). Another study calculated a saving in jury man-hours of 41.9% with the reduction to six members. Pabst, Statistical Studies of the Costs of Six-Man versus Twelve-Man Juries, 14 Wm. & Mary L.Rev. 326, 328 (1972).
40
Id., at 327; Zeisel, Twelve is Just, supra. But see Institute of Judicial Administration, A Comparison of Six- and Twelve-Member Civil Juries in New Jersey Superior and County Courts 27-28 (1972); New Jersey Criminal Law Revision Commission, Six-Member Juries 3-4 (1971); Thompson, Six Will Do, 10 Trial 12, 14 (Nov.-Dec. 1974).
41
Pabst, supra, at 327-328.
42
Virginia Code § 19.2-262(2) (1975) permits juries of five in misdemeanor cases.
43
Several States have provided for six-member juries for selected criminal cases. E. g., Colo. Rule Crim.Proc. 23 (1974); Fla.Stat.Ann. § 913.10 (West 1973); Ky.Rev.Stat. § 29.015 (1971); Mass.Gen.Laws Ann., ch. 218 § 27A (West, Supp. 1977). Other States provide for smaller juries upon stipulation of the parties. E. g., Ark.Stat.Ann. § 43-1901 (1977); Cal.Civ.Proc. Code Ann. § 194 (West 1954). The Federal Indian Civil Rights Act, § 202, 82 Stat. 77, 25 U.S.C. § 1302(10), provides for a right of jury trial in certain cases before a jury of not less than six persons.
*
The opinion of Mr. Justice BLACKMUN acknowledges, in disagreeing with other studies, that "methodological problems" may "mask differences in the operation of smaller and larger juries." Ante, at 237. See also ante, at 242-243.
| 01
|
435 U.S. 313
98 S.Ct. 1079
55 L.Ed.2d 303
UNITED STATES, Petitioner,v.Anthony Robert WHEELER.
No. 76-1629.
Argued Jan. 11, 1978.
Decided March 22, 1978.
Syllabus
Respondent, a member of the Navajo Tribe, pleaded guilty in Tribal Court to a charge of contributing to the delinquency of a minor and was sentenced. Subsequently, he was indicted by a federal grand jury for statutory rape arising out of the same incident. He moved to dismiss the indictment on the ground that since the tribal offense of contributing to the delinquency of a minor was a lesser included offense of statutory rape, the Tribal Court proceeding barred the subsequent federal prosecution. The District Court granted the motion, and the Court of Appeals affirmed, holding that since tribal courts and federal district courts are not "arms of separate sovereigns," the Double Jeopardy Clause of the Fifth Amendment barred respondent's federal trial. Held : The Double Jeopardy Clause does not bar the federal prosecution. Pp. 316-332.
(a) The controlling question is the source of an Indian tribe's power to punish tribal offenders, i. e., whether it is a part of inherent tribal sovereignty or an aspect of the sovereignty of the Federal Government that has been delegated to the tribes by Congress. Pp. 316-322.
(b) Indian tribes still possess those aspects of sovereignty not withdrawn by treaty or statute, or by implication as a necessary result of their dependent status. Pp. 322-323.
(c) Here, it is evident from the treaties between the Navajo Tribe and the United States and from the various statutes establishing federal criminal jurisdiction over crimes involving Indians, that the Navajo Tribe has never given up its sovereign power to punish tribal offenders, nor has that power implicitly been lost by virtue of the Indians' dependent status; thus, tribal exercise of that power is presently the continued exercise of retained tribal sovereignty. Pp. 323-326.
(d) Moreover, such power is not attributable to any delegation of federal authority. Pp. 326-328.
(e) When an Indian tribe criminally punishes a tribe member for violating tribal law, the tribe acts as an independent sovereign, and not as an arm of the Federal Government, Talton v. Mayes, 163 U.S. 376, 16 S.Ct. 986, 41 L.Ed. 196, and since tribal and federal prosecutions are brought by separate sovereigns, they are not "for the same offence" and the Double Jeopardy Clause thus does not bar one when the other has occurred. Pp. 328-330.
(f) To limit the "dual sovereignty" concept to successive state and federal prosecutions, as respondent urges, would result, in a case such as this, in the "undesirable consequences" of having a tribal prosecution for a relatively minor offense bar a federal prosecution for a much graver one, thus depriving the Federal Government of the right to enforce its own laws; while Congress could solve this problem by depriving Indian tribes of criminal jurisdiction altogether, this abridgment of the tribes' sovereign powers might be equally undesirable. See Abbate v. United States, 359 U.S. 187, 79 S.Ct. 666, 3 L.Ed.2d 729. Pp. 330-332.
545 F.2d 1255, reversed and remanded.
Stephen L. Urbanczyk, Washington, D. C., for petitioner.
Thomas W. O'Toole, Phoenix, Ariz., for respondent.
Mr. Justice STEWART delivered the opinion of the Court.
1
The question presented in this case is whether the Double Jeopardy Clause of the Fifth Amendment bars the prosecution of an Indian in a federal district court under the Major Crimes Act, 18 U.S.C. § 1153, when he has previously been convicted in a tribal court of a lesser included offense arising out of the same incident.
2
* On October 16, 1974, the respondent, a member of the Navajo Tribe, was arrested by a tribal police officer at the Bureau of Indian Affairs High School in Many Farms, Ariz., on the Navajo Indian Reservation.1 He was taken to the tribal jail in Chinle, Ariz., and charged with disorderly conduct in violation of Title 17, § 351, of the Navajo Tribal Code (1969). On October 18, two days after his arrest, the respondent pleaded guilty to disorderly conduct and a further charge of contributing to the delinquency of a minor, in violation of Title 17, § 321, of the Navajo Tribal Code (1969). He was sentenced to 15 days in jail or a fine of $30 on the first charge and to 60 days in jail (to be served concurrently with the other jail term) or a fine of $120 on the second.2
3
Over a year later, on November 19, 1975, an indictment charging the respondent with statutory rape was returned by a grand jury in the United States District Court for the District of Arizona.3 The respondent moved to dismiss this indictment, claiming that since the tribal offense of contributing to the delinquency of a minor was a lesser included offense of statutory rape,4 the proceedings that had taken place in the Tribal Court barred a subsequent federal prosecution. See Brown v. Ohio, 432 U.S. 161, 97 S.Ct. 2221, 53 L.Ed.2d 187. The District Court, rejecting the prosecutor's argument that "there is not an identity of sovereignties between the Navajo Tribal Courts and the courts of the United States," dismissed the indictment.5 The Court of Appeals for the Ninth Circuit affirmed the judgment of dismissal, concluding that since "Indian tribal courts and United States district courts are not arms of separate sovereigns," the Double Jeopardy Clause barred the respondent's trial. 545 F.2d 1255, 1258. We granted certiorari to resolve an intercircuit conflict. 434 U.S. 816,6 98 S.Ct. 53, 54 L.Ed.2d 71.
II
4
In Bartkus v. Illinois, 359 U.S. 121, 79 S.Ct. 676, 3 L.Ed.2d 684, and Abbate v. United States, 359 U.S. 187, 79 S.Ct. 666, 3 L.Ed.2d 729, this Court reaffirmed the well-established principle that a federal prosecution does not bar a subsequent state prosecution of the same person for the same acts, and a state prosecution does not bar a federal one.7 The basis for this doctrine is that prosecutions under the laws of separate sovereigns do not, in the language of the Fifth Amendment, "subject [the defendant] for the same offence to be twice put in jeopardy":
5
"An offence, in its legal signification, means the transgression of a law. . . . Every citizen of the United States is also a citizen of a State or territory. He may be said to owe allegiance to two sovereigns, and may be liable to punishment for an infraction of the laws of either. The same act may be an offense or transgression of the laws of both. . . . That either or both may (if they see fit) punish such an offender, cannot be doubted. Yet it cannot be truly averred that the offender has been twice punished for the same offence; but only that by one act he has committed two offences, for each f which he is justly punishable." Moore v. Illinois, 14 How. 13, 19-20, 14 L.Ed. 306.
6
It was noted in Abbate, supra, at 195, 79 S.Ct., at 671, that the "undesirable consequences" that would result from the imposition of a double jeopardy bar in such circumstances further support the "dual sovereignty" concept. Prosecution by one sovereign for a relatively minor offense might bar prosecution by the other for a much graver one, thus effectively depriving the latter of the right to enforce its own laws.8 While, the Court said, conflict might be eliminated by making federal jurisdiction exclusive where it exists, such a "marked change in the distribution of powers to administer criminal justice" would not be desirable. Ibid.
7
The "dual sovereignty" concept does not apply, however, in every instance where successive cases are brought by nominally different prosecuting entities. Grafton v. United States, 206 U.S. 333, 27 S.Ct. 749, 51 L.Ed. 1084, held that a soldier who had been acquitted of murder by a federal court-martial could not be retried for the same offense by a territorial court in the Philippines.9 And Puerto Rico v. Shell Co., 302 U.S. 253, 264-266, 58 S.Ct. 167, 172-173, 82 L.Ed. 235, reiterated that successive prosecutions by federal and territorial courts are impermissible because such courts are "creations emanating from the same sovereignty." Similarly, in Waller v. Florida, 397 U.S. 387, 90 S.Ct. 1184, 25 L.Ed.2d 435, we held that a city and the State of which it is a political subdivision could not bring successive prosecutions for unlawful conduct growing out of the same episode, despite the fact that state law treated the two as separate sovereignties.
8
The respondent contends, and the Court of Appeals held, that the "dual sovereignty" concept should not apply to successive prosecutions by an Indian tribe and the United States because the Indian tribes are not themselves sovereigns, but derive their power to punish crimes from the Federal Government. This argument relies on the undisputed fact that Congress has plenary authority to legislate for the Indian tribes in all matters, including their form of government. Winton v. Amos, 255 U.S. 373, 391-392, 41 S.Ct. 342, 349, 65 L.Ed. 684; In re Heff, 197 U.S. 488, 498-499, 25 S.Ct. 506, 516, 49 L.Ed. 848; Lone Wolf v. Hitchcock, 187 U.S. 553, 23 S.Ct. 216, 47 L.Ed. 299; Talton v. Mayes, 163 U.S. 376, 384, 16 S.Ct. 986, 989, 41 L.Ed. 196. Because of this all-encompassing federal power, the respondent argues that the tribes are merely "arms of the federal government"10 which in the words of his brief, "owe their existence and vitality solely to the political department of the federal government."
9
We think that the respondent and the Court of Appeals, in relying on federal control over Indian tribes, have misconceived the distinction between those cases in which the "dual sovereignty" concept is applicable and those in which it is not. It is true that Territories are subject to the ultimate control of Congress,11 and cities to the control of the State which created them.12 But that fact was not relied upon as the basis for the decisions in Grafton, Shell Co.,13 and Waller. What differentiated those cases from Bartkus and Abbate was not the extent of control exercised by one prosecuting authority over the other but rather the ultimate source of the power under which the respective prosecutions were undertaken.
10
Bartkus and Abbate rest on the basic structure of our federal system, in which States and the National Government are separate political communities. State and Federal Governments "[derive] power from different sources," each from the organic law that established it. United States v. Lanza, 260 U.S. 377, 382, 43 S.Ct. 141, 142, 67 L.Ed. 314. Each has the power, inherent in any sovereign, independently to determine what shall be an offense against its authority and to punish such offenses, and in doing so each "is exercising its own sovereignty, not that of the other." Ibid. And while the States, as well as the Federal Government, are subject to the overriding requirements of the Federal Constitution, and the Supremacy Clause gives Congress within its sphere the power to enact laws superseding conflicting laws of the States, this degree of federal control over the exercise of state governmental power does not detract from the fact that it is a State's own sovereignty which is the origin of its power.14
11
By contrast, cities are not sovereign entities. "Rather, they have been traditionally regarded as subordinate governmental instrumentalities created by the State to assist in the carrying out of state governmental functions." Reynolds v. Sims, 377 U.S. 533, 575, 84 S.Ct. 1362, 1388, 12 L.Ed.2d 506.15 A city is nothing more than "an agency of the State." Williams v. Eggleston, 170 U.S. 304, 310, 18 S.Ct. 617, 623, 42 L.Ed. 1047. Any power it has to define and punish crimes exists only because such power has been granted by the State; the power "derive[s] . . . from the source of [its] creation." Mount Pleasant v. Beckwith, 100 U.S. 514, 524, 25 L.Ed. 699. As we said in Waller v. Florida, supra, 397 U.S., at 393, 90 S.Ct., at 1188, "the judicial power to try pet tioner . . . in municipal court springs from the same organic law that created the state court of general jurisdiction."
12
Similarly, a territorial government is entirely the creation of Congress, "and its judicial tribunals exert all their powers by authority of the United States." Grafton v. United States, supra, 206 U.S., at 354, 27 S.Ct., at 755; see Cincinnati Soap Co. v. United States, 301 U.S. 308, 317, 57 S.Ct. 764, 768, 81 L.Ed. 1122; United States v. Kagama, 118 U.S. 375, 380, 6 S.Ct. 1109, 1111, 30 L.Ed. 228; American Ins. Co. v. Canter, 1 Pet. 511, 542, 7 L.Ed. 242.16 When a territorial government enacts and enforces criminal laws to govern its inhabitants, it is not acting as an independent political community like a State, but as "an agency of the federal government." Domenech v. National City Bank, 294 U.S. 199, 204-205, 55 S.Ct. 366, 369, 79 L.Ed. 857.
13
Thus, in a federal Territory and the Nation, as in a city and a State, "[t]here is but one system of government, or of laws operating within [its] limits." Benner v. Porter, 9 How. 235, 242, 13 L.Ed. 119. City and State, or Territory and Nation, are not two separate sovereigns to whom the citizen owes separate allegiance in any meaningful sense, but one alone.17 And the "dual sovereignty" concept of Bartkus and Abbate does not permit a single sovereign to impose multiple punishment for a single offense merely by the expedient of establishing multiple political subdivisions with the power to punish crimes.
III
14
It is undisputed that Indian tribes have power to enforce their criminal laws against tribe members. Although physically within the territory of the United States and subject to ultimate federal control, they nonetheless remain "a separate people, with the power of regulating their internal and social relations." United States v. Kagama, supra, 118 U.S., at 381-382, 6 S.Ct., at 1113; Cherokee Nation v. Georgia, 5 Pet. 1, 16, 8 L.Ed. 25.18 Their right of internal self-government includes the right to prescribe laws applicable to tribe members and to enforce those laws by criminal sanctions. United States v. Antelope, 430 U.S. 641, 643 n. 2, 97 S.Ct. 1395, 1397, 51 L.Ed.2d 701; Talton v. Mayes, 163 U.S. at 380, 16 S.Ct., at 988; Ex parte Crow Dog, 109 U.S. 556, 571-572, 3 S.Ct. 396, 405, 27 L.Ed. 1030; see 18 U.S.C. § 1152 (1976 ed.), infra, n. 21. As discussed above in Part II, the controlling question in this case is the source of this power to punish tribal offenders: Is it a part of inherent tribal sovereignty, or an aspect of the sovereignty of the Federal Government which has been delegated to the tribes by Congress?
15
* The powers of Indian tribes are, in general, "inherent powers of a limited sovereignty which has never been extinguished." F. Cohen, Handbook of Federal Indian Law 122 (1945) (emphasis in original). Before the coming of the Europeans, the tribes were self-governing sovereign political communities. See McClanahan v. Arizona State Tax Comm'n, 411 U.S. 164, 172, 93 S.Ct. 1257, 1262, 36 L.Ed.2d 129. Like all sovereign bodies, they then had the inherent power to prescribe laws for their members and to punish infractions of those laws.
16
Indian tribes are, of course, no longer "possessed of the full attributes of sovereignty." United States v. Kagama, supra, 118 U.S., at 381, 6 S.Ct., at 1112. Their incorporation within the territory of the United States, and their acceptance of its protection, necessarily divested them of some aspects of the sovereignty which they had previously exercised.19 By specific treaty provision they yielded up other sovereign powers; by statute, in the exercise of its plenary control, Congress has removed still others.
17
But our cases recognize that the Indian tribes have not given up their full sovereignty. We have recently said that: "Indian tribes are unique aggregations possessing attributes of sovereignty over both their members and their territory . . . . [They] are a good deal more than 'private, voluntary organizations.' " United States v. Mazurie, 419 U.S. 544, 557, 95 S.Ct. 710, 717, 42 L.Ed.2d 706; see also Turner v. United States, 248 U.S. 354, 354-355, 39 S.Ct. 109, 63 L.Ed. 291; Cherokee Nation v. Georgia, supra, 5 Pet. at 16-17. The sovereignty that the Indian tribes retain is of a unique and limited character. It exists only at the sufferance of Congress and is subject to complete defeasance. But until Congress acts, the tribes retain their existing sovereign powers. In sum, Indian tribes still possess those aspects of sovereignty not withdrawn by treaty or statute, or by implication as a necessary result of their dependent status. See Oliphant v. Suquamish Indian Tribe, 435 U.S. 191, 98 S.Ct. 1011, 55 L.Ed.2d 209.
B
18
It is evident that the sovereign power to punish tribal offenders has never been given up by the Navajo Tribe and that tribal exercise of that power today is therefore the continued exercise of retained tribal sovereignty. Although both of the treaties executed by the Tribe with the United States20 provided for punishment by the United States of Navajos who commit crimes against non-Indians, nothing in either of them deprived the Tribe of its own jurisdiction to charge, try, and punish members of the Tribe for violations of tribal law. On the contrary, we have said that "[i]mplicit in these treaty terms . . . was the understanding that the internal affairs of the Indians remained exclusively within the jurisdiction of whatever tribal government existed." Williams v. Lee, 358 U.S. 217, 221-222, 79 S.Ct. 269, 271, 3 L.Ed.2d 251; see also Warren Trading Post v. Tax Comm'n, 380 U.S. 685, 85 S.Ct. 1242, 14 L.Ed.2d 165.
19
Similarly, statutes establishing federal criminal jurisdiction over crimes involving Indians have recognized an Indian tribe's jurisdiction over its members. The first Indian Trade and Intercourse Act, Act of July 22, 1790, § 5, 1 Stat. 138, provided only that the Federal Government would punish offenses committed against Indians by "any citizen or inhabitant of the United States"; it did not mention crimes committed by Indians. In 1817 federal criminal jurisdiction was ex ended to crimes committed within the Indian country by "any Indian, or other person or persons," but "any offence committed by one Indian against another, within any Indian boundary" was excluded. Act of Mar. 3, 1817, ch. 92, 3 Stat. 383. In the Indian Trade and Intercourse Act of 1834, § 25, 4 Stat. 733, Congress enacted the direct progenitor of the General Crimes Act, now 18 U.S.C. § 1152 (1976 ed.), which makes federal enclave criminal law generally applicable to crimes in "Indian country."21 In this statute Congress carried forward the intra-Indian offense exception because "the tribes have exclusive jurisdiction" of such offenses and "we can [not] with any justice or propriety extend our laws to" them. H.R.Rep. No. 474, 23d Cong., 1st Sess., 13 (1834). And in 1854 Congress expressly recognized the jurisdiction of tribal courts when it added another exception to the General Crimes Act, providing that federal courts would not try an Indian "who has been punished by the local law of the tribe." Act of Mar. 27, 1854, § 3, 10 Stat. 270.22 Thus, far from depriving Indian tribes of their sovereign power to punish offenses against tribal law by members of a tribe, Congress has repeatedly recognized that power and declined to disturb it.23
20
Moreover, the sovereign power of a tribe to prosecute its members for tribal offenses clearly does not fall within that part of sovereignty which the Indians implicitly lost by virtue of their dependent status. The areas in which such implicit divestiture of sovereignty has been held to have occurred are those involving the relations between an Indian tribe and nonmembers of the tribe. Thus, Indian tribes can no longer freely alienate to non-Indians the land they occupy. Oneida Indian Nation v. County of Oneida, 41 U.S. 661, 667-668, 94 S.Ct. 772, 777, 39 L.Ed.2d 73; Johnson v. M'Intosh, 8 Wheat. 543, 574, 5 L.Ed. 681. They cannot enter into direct commercial or governmental relations with foreign nations. Worcester v. Georgia, 6 Pet. 515, 559, 8 L.Ed. 483; Cherokee Nation v. Georgia, 5 Pet., at 17-18; Fletcher v. Peck, 6 Cranch 87, 147, 3 L.Ed. 162 (Johnson, J., concurring). And, as we have recently held, they cannot try nonmembers in tribal courts. Oliphant v. Suquamish Indian Tribe, 435 U.S. 191, 98 S.Ct. 1011, 55 L.Ed.2d 209.
21
These limitations rest on the fact that the dependent status of Indian tribes within our territorial jurisdiction is necessarily inconsistent with their freedom independently to determine their external relations. But the powers of self-government, including the power to prescribe and enforce internal criminal laws, are of a different type. They involve only the relations among members of a tribe. Thus, they are not such powers as would necessarily be lost by virtue of a tribe's dependent status. "[T]he settled doctrine of the law of nations is, that a weaker power does not surrender its independence—its right to self government, by associating with a stronger, and taking its protection." Worcester v. Georgia, supra, at 560-561.
C
22
That the Navajo Tribe's power to punish offenses against tribal law committed by its members is an aspect of its retained sovereignty is further supported by the absence of any federal grant of such power. If Navajo self-government were merely the exercise of delegated federal sovereignty, such a delegation should logically appear somewhere. But no provision in the relevant treaties or statutes confers the right of self-government in general, or the power to punish crimes in particular, upon the Tribe.24
23
It is true that in the exercise of the powers of self-government, as in all other matters, the Navajo Tribe, like all Indian tribes, remains subject to ultimate federal control. Thus, before the Navajo Tribal Council created the present Tribal Code and tribal courts,25 the Bureau of Indian Affairs established a Code of Indian Tribal Offenses and a Court of Indian Offenses for the reservation. See 25 CFR Part 11 (1977); cf. 25 U.S.C. § 1311.26 Pursuant to federal regulations, the present Tribal Code was approved by the Secretary of the Interior before becoming effective. See 25 CFR § 11.1(e) (1977). Moreover, the Indian Reorganization Act of 1934, § 16, 48 Stat. 987, 25 U.S.C. § 476, and the Act of Apr. 19, 1950, § 6, 64 Stat. 46, 25 U.S.C. § 636, each authorized the Tribe to adopt a constitution for self-government. And the Indian Civil Rights Act of 1968, 82 Stat. 77, 25 U.S.C. § 1302, made most of the provisions of the Bill of Rights applicable to the Indian tribes and limited the punishment tribal courts could impose to imprisonment for six months, or a fine of $500, or both.
24
But none of these laws created the Indians' power to govern themselves and their right to punish crimes committed by tribal offenders. Indeed, the Wheeler-Howard Act and the Navajo-Hopi Rehabilitation Act both recognized that Indian tribes already had such power under "existing law." See Powers of Indian Tribes, 55 I.D. 14 (1934). That Congress has in certain ways regulated the manner and extent of the tribal power of self-government does not mean that Congress is the source of that power.
25
In sum, the power to punish offenses against tribal law committed by Tribe members, which was part of the Navajos' primeval sovereignty, has never been taken away from them, either explicitly or implicitly, and is attributable in no way to any delegation to them of federal authority.27 It follows that when the Navajo Tribe exercises this power, it does so as part of its retained sovereignty and not as an arm of the Federal Government.28
D
26
The conclusion that an Indian tribe's power to punish tribal offenders is part of its own retained sovereignty is clearly reflected in a case decided by this Court more than 80 years ago, Talton v. Mayes, 163 U.S. 376, 16 S.Ct. 986, 41 L.Ed. 196. There a Cherokee Indian charged with murdering another Cherokee in the Indian Territory claimed that his indictment by the Tribe was defective under the Grand Jury Clause of the Fifth Amendment. In holding that the Fifth Amendment did not apply to tribal prosecutions, the Court stated:
27
"The case . . . depends upon whether the powers of local government exercised by the Cherokee nation are Federal powers created by and springing from the Constitution of the United States, and hence controlled by the Fifth Amendment to that Constitution, or whether they are local powers not created by the Constitution, although subject to its general provisions and the paramount authority of Congress. The repeated adjudications of this Court have long since answered the former question in the negative. . . .
28
* * * * *
29
"True it is that in many adjudications of this court the fact has been fully recognized, that although possessed of these attributes of local self government, when exercising their tribal functions, all such rights are subject to the supreme legislative authority of the United States. . . . But the existence of the right in Congress to regulate the manner in which the local powers of the Cherokee nation shall be exercised does not render such local powers Federal powers arising from and created by the Constitution of the United States." Id., at 382-384.
30
The relevance of Talton v. Mayes to the present case is clear. The Court there held that when an Indian tribe criminally punishes a tribe member for violating tribal law, the tribe acts as an independent sovereign, and not as an arm of the Federal Government.29 Since tribal and federal prosecutions are brought by separate sovereigns, they are not "for the same offence," and the Double Jeopardy Clause thus does not bar one when the other has occurred.
IV
31
The respondent contends that, despite the fact that successive tribal and federal prosecutions are not "for the same offence," the "dual sovereignty" concept should be limited to successive state and federal prosecutions. But we cannot accept so restrictive a view of that concept, a view which, as has been noted, would require disregard of the very words of the Double Jeopardy Clause. Moreover, the same sort of "undesirable consequences" identified in Abbate could occur if successive tribal and federal prosecutions were barred despite the fact that tribal and federal courts are arms of separate sovereigns. Tribal courts can impose no punishment in excess of six months' imprisonment or a $500 fine. 25 U.S.C. § 1302(7). On the other hand, federal jurisdiction over crimes committed by Indians includes many major offenses. 18 U.S.C. § 1153 (1976 ed.).30 Thus, when both a federal prosecution for a major crime and a tribal prosecution for a lesser included offense are possible, the defendant will often face the potential of a mild tribal punishment and a federal punishment of substantial severity. Indeed, the respondent in the present case faced the possibility of a federal sentence of 15 years in prison, but received a tribal sentence of no more than 75 days and a small fine. In such a case, the prospect of avoiding more severe federal punishment would surely motivate a member of a tribe charged with the commission of an offense to seek to stand trial first in a tribal court. Were the tribal prosecution held to bar the federal one, important federal interests in the prosecution of major offenses on Indian reservations31 would be frustrated.32
32
This problem would, of course, be solved if Congress, in the exercise of its plenary power over the tribes, chose to deprive them of criminal jurisdiction altogether. But such a fundamental abridgment of the powers of Indian tribes might be thought as undesirable as the federal pre-emption of state criminal jurisdiction that would have avoided conflict in Bartkus and Abbate. The Indian tribes are "distinct political communities" with their own mores and laws, Worcester v. Georgia, 6 Pet., at 557; The Kansas Indians, 5 Wall. 737, 756,33 which can be enforced by formal criminal proceedings in tribal courts as well as by less formal means. They have a significant interest in maintaining orderly relations among their members and in preserving tribal customs and traditions, apart from the federal interest in law and order on the reservation. Tribal laws and procedures are often influenced by tribal custom and can differ greatly from our own. See Ex parte Crow Dog, 109 U.S., at 571, 3 S.Ct. 396.34
33
Thus, tribal courts are important mechanisms for protecting significant tribal interests.35 Federal pre-emption of a tribe's jurisdiction to punish its members for infractions of tribal law would detract substantially from tribal self-government, just as federal pre-emption of state criminal jurisdiction would trench upon important state interests. Thus, just as inBartkus and Abbate, there are persuasive reasons to reject the respondent's argument that we should arbitrarily ignore the settled "dual sovereignty" concept as it applies to successive tribal and federal prosecutions.
34
Accordingly, the judgment of the Court of Appeals is reversed, and the case is remanded for further proceedings consistent with this opinion.
35
It is so ordered.
36
Mr. Justice BRENNAN took no part in the consideration or decision of this case.
1
The record does not make clear the details of the incident that led to the respondent's arrest. After the bringing of the federal indictment an evidentiary hearing was held on the respondent's motion to suppress statements he had made to police officers. This hearing revealed only that the respondent had been intoxicated at the time of his arrest; that his clothing had been disheveled and he had had a bloodstain on his face; that the incident had involved a Navajo girl; and that the respondent claimed that he had been trying to help the girl, who had been attacked by several other boys.
2
The record does not reveal how the sentence of the Navajo Tribal Court was carried out.
3
The indictment charged that "[o]n or about the 16th day of October, 1974, in the District of Arizona, on and within the Navajo Indian Reservation, Indian Country, ANTHONY ROBERT WHEELER, an Indian male, did carnally know a female Indian . . . not his wife, who had not then attained the age of sixteen years, but was fifteen years of age. In violation of Title 18, United States Code, Sections 1153 and 2032."
At the time of the indictment, 18 U.S.C. § 1153 provided in relevant part:
"Any Indian who commits against the person or property of another Indian or other person any of the following offenses, namely, . . . carnal knowledge of any female, not his wife, who has not attained the age of sixteen years, . . . within the Indian country, shall be subject to the same laws and penalties as all other persons committing any of the above offenses, within the exclusive jurisdiction of the United States."
The Major Crimes Act has since been amended in respects not relevant here. Indian Crimes Act of 1976, § 2, 90 Stat. 585.
Title 18 U.S.C. § 2032 (1976 ed.), applicable within areas of exclusive federal jurisdiction, punishes carnal knowledge of any female under 16 years of age who is not the defendant's wife by imprisonment for up to 15 years.
4
The holding of the District Court and the Court of Appeals that the tribal offense of contributing to the delinquency of a minor was included within the federal offense of statutory rape is not challenged here by the Government.
5
The decision of the District Court is unreported.
6
In a later case, the Court of Appeals for the Eighth Circuit held that the Double Jeopardy Clause does not bar successive tribal and federal prosecutions for the same offense, expressly rejecting the view of the Ninth Circuit in the present case. United States v. Walking Crow, 560 F.2d 386. See also United States v. Elk, 561 F.2d 133 (CA8); United States v. Kills Plenty, 466 F.2d 240, 243 n. 3 (CA8).
7
Although the problems arising from concurrent federal and state criminal jurisdiction had been noted earlier, see Houston v. Moore, 5 Wheat. 1, 5 L.Ed. 19, the Court did not clearly address the issue until Fox v. Ohio, 5 How. 410, 12 L.Ed. 213, United States v. Marigold, 9 How. 560, 13 L.Ed. 257, and Moore v. Illinois, 14 How. 13, 14 L.Ed. 306, in the mid-19th century. Those cases upheld the power of States and the Federal Government to make the same act criminal; in each case the possibility of consecutive state and federal prosecutions was raised as an objection to concurrent jurisdiction, and was rejected by the Court on the ground that such multiple prosecutions, if they occurred, would not constitute double jeopardy. The first case in which actual multiple prosecutions were upheld was United States v. Lanza, 260 U.S. 377, 43 S.Ct. 141, 67 L.Ed. 314, involving a prosecution for violation of the Volstead Act, ch. 85, 41 Stat. 305, after a conviction for criminal violation of liquor laws of the State of Washington.
8
In Abbate itself the petitioners had received prison terms of three months on their state convictions, but faced up to five years' imprisonment on the federal charge. 359 U.S., at 195, 79 S.Ct., at 670. And in Bartkus the Court referred to Screws v. United States, 325 U.S. 91, 65 S.Ct. 1031, 89 L.Ed. 1495, in which the same facts could give rise to a federal prosecution under what are now 18 U.S.C. §§ 242 and 371 (1976 ed.) (which then carried maximum penalties of one and two years' imprisonment) and a state prosecution for murder, a capital offense. "Were the federal prosecution of a comparatively minor offense to prevent state prosecution of so grave an infraction of state law, the result would be a shocking and untoward deprivation of the historic right and obligation of the States to maintain peace and order within their confines." Bartkus v. Illinois, 359 U.S. 121, 137, 79 S.Ct. 676, 685, 3 L.Ed.2d 684.
9
The prohibition against double jeopardy had been made applicable to the Philippines by Act of Congress. Act of July 1, 1902, § 5, 32 Stat. 692. In a previous case, the Court had held it unnecessary to decide whether the Double Jeopardy Clause would have applied within the Philippines of its own force in the absence of this statute. Kepner v. United States, 195 U.S. 100, 124-125, 24 S.Ct. 797, 802, 49 L.Ed. 114.
10
Colliflower v. Garland, 342 F.2d 369, 379 (CA9).
11
Binns v. United States, 194 U.S. 486, 491, 24 S.Ct. 816, 817, 48 L.Ed. 1087; De Lima v. Bidwell, 182 U.S. 1, 196-197, 21 S.Ct. 743, 752, 45 L.Ed. 1041; Mormon Church v. United States, 136 U.S. 1, 42, 10 S.Ct. 792, 802, 34 L.Ed. 481; Murphy v. Ramsey, 114 U.S. 15, 44-45, 5 S.Ct. 747, 763, 29 L.Ed. 47.
12
Trenton v. New Jersey, 262 U.S. 182, 187, 43 S.Ct. 534, 536, 67 L.Ed. 937; Hunter v. Pittsburgh, 207 U.S. 161, 178-179, 28 S.Ct. 40, 46, 52 L.Ed. 151; Williams v. Eggleston, 170 U.S. 304, 310, 18 S.Ct. 617, 619, 42 L.Ed. 1047; Mount Pleasant v. Beckwith, 100 U.S. 514, 529, 25 L.Ed. 699; see 2 E. McQuillin, Law of Municipal Corporations § 4.03 (3d ed. 1966).
13
Indeed, in the Shell Co. case the Court noted that Congress had given Puerto Rico "an autonomy similar to that of the states . . . ." 302 U.S., at 262, 58 S.Ct., at 171.
14
Cf. United States v. Lanza, 260 U.S., at 379-382, 43 S.Ct., at 141-143, holding that a State's power to enact prohibition laws did not derive from the Eighteenth Amendment's provision that Congress and the States should have concurrent jurisdiction in that area, but rather from the State's inherent sovereignty.
15
See also Trenton v. New Jersey, supra, 262 U.S., at 185-186, 43 S.Ct., at 536; Hunter v. Pittsburgh, supra, 207 U.S., at 178, 28 S.Ct., at 46; Worcester v. Street R. Co., 196 U.S. 539, 548, 25 S.Ct. 327, 329, 49 L.Ed. 591; Barnes v. District of Columbia, 91 U.S. 540, 544, 23 L.Ed. 440.
16
Indeed, the relationship of a Territory to the Federal Government has been accurately compared to the relationship between a city and a State. Dorr v. United States, 195 U.S. 138, 147-148, 24 S.Ct. 808, 812, 49 L.Ed. 128, quoting T. Cooley, General Principles of Constitutional Law 164-165 (1880); see National Bank v. County of Yankton, 101 U.S. 129, 133, 25 L.Ed. 1046.
17
Cf. Gonzales v. Williams, 192 U.S. 1, 13, 24 S.Ct. 177, 179, 48 L.Ed. 317; American Ins. Co. v. Canter, 1 Pet. 511, 542, 7 L.Ed. 242.
18
Thus, unless limited by treaty or statute, a tribe has the power to determine tribe membership, Cherokee Intermarriage Cases, 203 U.S. 76, 27 S.Ct. 29, 51 L.Ed. 96; Roff v. Burney, 168 U.S. 218, 222-223, 18 S.Ct. 60, 62, 42 L.Ed. 442; to regulate domestic relations among tribe members, Fisher v. District Court, 424 U.S. 382, 96 S.Ct. 943, 47 L.Ed.2d 106; cf. United States v. Quiver, 241 U.S. 602, 36 S.Ct. 699, 60 L.Ed. 196; and to prescribe rules for the inheritance of property. Jones v. Meehan, 175 U.S. 1, 29, 20 S.Ct. 1, 12, 44 L.Ed. 49; United States ex rel. Mackey v. Coxe, 18 How. 100, 15 L.Ed. 299.
19
See infra, at 326.
20
The first treaty was signed at Canyon de Chelly in 1849, and ratified by Congress in 1850. 9 Stat. 974. The second treaty was signed and ratified in 1868. 15 Stat. 667.
21
Title 18 U.S.C. § 1152 (1976 ed.) now provides:
"Except as otherwise expressly provided by law, the general laws of the United States as to the punishment of offenses committed in any place within the sole and exclusive jurisdiction of the United States, except the District of Columbia, shall extend to the Indian country.
"This section shall not extend to offenses committed by one Indian against the person or property of another Indian, nor to any Indian committing any offense in the Indian country who has been punished by the local law of the tribe, or to any case where, by treaty stipulation, the exclusive jurisdiction over such offenses is or may be secured to the Indian tribes respectively."
Despite the statute's broad language, it does not apply to crimes committed by non-Indians against non-Indians, which are subject to state jurisdiction. United States v. McBratney, 104 U.S. 621, 26 L.Ed. 869.
22
This statute is not applicable to the present case. The Major Crimes Act, under which the instant prosecution was brought, was enacted in 1885. Act of Mar. 3, 1885, § 9, 23 Stat. 385. It does not contain any exception for Indians punished under tribal law. We need not decide whether this " 'carefully limited intrusion of federal power into the otherwise exclusive jurisdiction of the Indian tribes to punish Indians for crimes committed on Indian land,' " United States v. Antelope, 430 U.S. 641, 643 n. 1, 97 S.Ct. 1395, 1397, 51 L.Ed.2d 701, deprives a tribal court of jurisdiction over the enumerated offenses, since the crimes to which the respondent pleaded guilty in the Navajo Tribal Court are not among those enumerated in the Major Crimes Act. Cf. Oliphant v. Suquamish Indian Tribe, 435 U.S., at 203-204, 98 S.Ct., at 1018, n. 14.
23
See S.Rep. No. 268, 41st Cong., 3d Sess., 10 (1870):
"Their right of self government, and to administer justice among themselves, after their rude fashion, even to the extent of inflicting the death penalty, has never been questioned; and . . . the Government has carefully abstained from attempting to regulate their domestic affairs, and from punishing crimes committed by one Indian against another in the Indian country."
24
This Court has referred to treaties made with the Indians as "not a grant of rights to the Indians, but a grant of rights from them—a reservation of those not granted." United States v. Winans, 198 U.S. 371, 381, 25 S.Ct. 662, 664, 49 L.Ed. 1089.
25
The tribal courts were established in 1958, and the law-and-order provisions of the Tribal Code in 1959, by resolution of the Navajo Tribal Council. See Titles 7 and 17 of the Navajo Tribal Code; Oliver v. Udall, 113 U.S.App.D.C. 212, 306 F.2d 819.
26
Such Courts of Indian Offenses, or "CFR Courts," still exist on approximately 30 reservations "in which traditional agencies for the enforcement of tribal law and custom have broken down [and] no adequate substitute has been provided." 25 CFR § 11.1(b) (1977). We need not decide today whether such a court is an arm of the Federal Government or, like the Navajo Tribal Court, derives its powers from the inherent sovereignty of the tribe.
27
The Department of Interior, charged by statute with the responsibility for "the management of all Indian affairs and of all matters arising out of Indian relations," 25 U.S.C. § 2, clearly is of the view that tribal self-government is a matter of retained sovereignty rather than congressional grant. Department of the Interior, Federal Indian Law 398 (1958); Powers of Indian Tribes, 55 I.D. 14, 56 (1934). See also 1 Final Report of the American Indian Policy Review Commission 99-100, 126 (1977).
28
By emphasizing that the Navajo Tribe never lost its sovereign power to try tribal criminals, we do not mean to imply that a tribe which was deprived of that right by statute or treaty and then regained it by Act of Congress would necessarily be an arm of the Federal Government. That interesting question is not before us, and we express no opinion thereon.
29
Cf. Mescalero Apache Tribe v. Jones, 411 U.S. 145, 93 S.Ct. 1267, 36 L.Ed.2d 114, holding that a business enterprise operated off the reservation by a tr be was not a "federal instrumentality" free from state taxation.
30
Federal jurisdiction also extends to crimes committed by an Indian against a non-Indian which have not been punished in tribal court, 18 U.S.C. § 1152 (1976 ed.); see n. 21, supra, and to crimes over which there is federal jurisdiction regardless of whether an Indian is involved, such as assaulting a federal officer, 18 U.S.C. § 111 (1976 ed.). Stone v. United States, 506 F.2d 561 (CA8).
31
See Keeble v. United States, 412 U.S. 205, 209-212, 93 S.Ct. 1993, 1996, 36 L.Ed.2d 844, describing the reasons for enactment of the Major Crimes Act, 18 U.S.C. § 1153 (1976 ed.).
32
Moreover, since federal criminal jurisdiction over Indians extends as well to offenses as to which there is an independent federal interest to be protected, see n. 30, supra, the Federal Government could be deprived of the power to protect those interests as well.
33
" 'Navaho' is not their own word for themselves. In their own language, they are dine, 'The People.' . . . This term is a constant reminder that the Navahos still constitute a society in which each individual has a strong sense of belonging with the others who speak the same language and, by the same token, a strong sense of difference and isolation from the rest of humanity." C. Kluckhohn & D. Leighton, The Navaho 23 (Rev. ed. 1974).
34
Traditional tribal justice tends to be informal and consensual rather than adjudicative, and often emphasizes restitution rather than punishment. See 1 Final Report of the American Indian Policy Review Commission 160-166 (1977); W. Hagan, Indian Police and Judges 11-17 (1966); Van Valkenburgh, Navajo Common Law, 9 Museum of Northern Arizona Notes 17 (1936); id., at 51 (1937); 10 id., at 37 (1938). See generally materials in M. Price, Law and the American Indian 133-150, 712-716 (1973).
35
Tribal courts of all kinds, including Courts of Indian Offenses, see n. 26, supra, handled an estimated 70,000 cases in 1973. 1 Final Report of the American Indian Policy Review Commission 163-164 (1977).
| 01
|
435 U.S. 333
98 S.Ct. 1091
55 L.Ed.2d 319
Ensio Ruben LAKESIDE, Petitioner,v.State of OREGON.
No. 76-6942.
Argued Jan. 18, 1978.
Decided March 22, 1978.
Syllabus
1. The giving by a state trial judge, over a criminal defendant's objection, of a cautionary instruction that the jury is not to draw any adverse inference from the defendant's decision not to testify in his behalf does not violate the privilege against compulsory self-incrimination guaranteed by the Fifth and Fourteenth Amendments. Pp. 336-341.
(a) Though in Griffin v. California, 380 U.S. 609, 85 S.Ct. 1229, 14 L.Ed.2d 106, the Court stated that "comment on the refusal to testify" violates the constitutional privilege, the Court was there concerned only with adverse comment, whereas here the very purpose of the instruction is to remove from the jury's deliberations any influence of unspoken adverse inferences. Pp. 338-339.
(b) Petitioner's contention that such an instruction may encourage adverse inferences in a trial like his, where the defense was presented through several witnesses, would require indulgence, on which federal constitutional law cannot rest, in the dubious speculative assumptions (1) that the jurors have not noticed defendant's failure to testify and will not therefore draw adverse inferences on their own; and (2) that the jurors will totally disregard the trial judge's instruction. Pp. 339-340.
2. The challenged instruction does not deprive the objecting defendant of his right to counsel by interfering with his attorney's trial strategy. To hold otherwise would implicate the right to counsel in almost every permissible ruling of a trial judge if made over the objection of the defendant's lawyer. Pp. 341-342.
277 Or. 569, 561 P.2d 612, affirmed.
Phillip M. Margolin, Portland, Or., for petitioner.
Thomas H. Denney, Salem, Or., for respondent.
Mr. Justice STEWART delivered the opinion of the Court.
1
The petitioner did not t ke the witness stand at his trial on a criminal charge in a state court. Over his objection the trial judge instructed the jury not to draw any adverse inference from the petitioner's decision not to testify. The question before us is whether the giving of such an instruction over the defendant's objection violated the Constitution.
2
* The petitioner was brought to trial in an Oregon court on a charge of escape in the second degree.1 The evidence showed that he had been an inmate of the Multnomah County Correctional Institution, a minimum-security facility in Multnomah County, Ore. On June 16, 1975, he received a special overnight pass requiring him to return by 10 o'clock the following evening. He did not return. The theory of the defense, supported by the testimony of a psychiatrist and three lay witnesses, was that the petitioner was not criminally responsible for his failure to return to the institution.2
3
At the conclusion of the evidence, the trial judge informed counsel in chambers that he intended to include the following instruction in his charge to the jury:
4
"Under the laws of this State a defendant has the option to take the witness stand to testify in his or her own behalf. If a defendant chooses not to testify, such a circumstance gives rise to no inference or presumption against the defendant, and this must not be considered by you in determining the question of guilt or innocence."
5
Defense counsel objected to the giving of that instruction, and, after it was given, the following colloquy took place in chambers:
6
"[Defense Counsel]: . . . I have one exception.
7
"I made this in Chambers prior to the closing statement. I told the Court that I did not want an instruction to the effect that the defendant doesn't have to take the stand, because I felt that that's like waving a red flag in front of the jury. . . .
8
"THE COURT: The defendant did orally request the Court just prior to instructing that the Court not give the usual instruction to the effect that there are no inferences to be drawn against the defendant for failing to take the stand in his own behalf.
9
"The Court felt that it was necessary to give that instruction in order to properly protect the defendant, and therefore, the defendant may have his exception."
10
The Oregon Court of Appeals reversed the petitioner's conviction and ordered a new trial on the ground that "the better rule is to not give instructions ostensibly designed for defendant's benefit over the knowledgeable objection of competent defense counsel." 25 Or.App. 539, 542, 549 P.2d 1287, 1288. The Oregon Supreme Court reinstated the conviction, holding that the giving of the instruction over the objection of counsel did not violate the constitutional rights of the defendant. 277 Or. 569, 561 P.2d 612.
11
The petitioner then sought review in this Court, claiming that the instruction infringed upon both his constitutional privilege not to be compelled to incriminate himself, and his constitutional right to the assistance of counsel. Because of conflicting decisions in several other courts,3 we granted certiorari, 434 U.S. 889, 98 S.Ct. 391, 54 L.Ed.2d 275.
II
A.
12
The Fifth Amendment commands that no person "shall be compelled in any criminal case to be a witness against himself." This guarantee was held to be applicable against the States through the Fourteenth Amendment in Malloy v. Hogan, 378 U.S. 1, 84 S.Ct. 1489, 12 L.Ed.2d 653.4 That case, decided in 1964, established that "the same standards" must attach to the privilege "in either a federal or state proceeding." Id., at 11, 84 S.Ct., at 1495. Less than a year later the Court held in Griffin v. California, 380 U.S. 609, 85 S.Ct. 1229, 12 L.Ed.2d 653, that it is a violation of this constitutional guarantee to tell a jury in a state criminal trial that a defendant's failure to testify supports an unfavorable inference against him.5
13
In Griffin, the prosecutor had encouraged the jury to draw adverse inferences from the defendant's failure to respond to the testimony against him. And the trial judge had instructed the jury that as to evidence which the defendant might be expected to explain, his failure to testify could be taken " 'into consideration as tending to indicate the truth of such evidence and as indicating that among the inferences that may be reasonably drawn therefrom those unfavorable to the defendant are the more probable.' " Id., at 610, 85 S.Ct., at 1230. In setting aside the judgment of conviction, the Court held that the Constitution "forbids either comment by the prosecution on the accused's silence or instructions by the court that such silence is evidence of guilt." Id., at 615, 85 S.Ct., at 1233.6
14
The Griffin opinion expressly reserved decision "on whether an accused can require . . . that the jury be instructed that his silence must be disregarded." Id., at 615, 85 S.Ct., at 1233 n. 6. It is settled in Oregon, however, that a defendant has an absolute right to require such an instruction. State v. Patton, 208 Or. 610, 303 P.2d 513.7 The petitioner in the present case does not question this rule, nor does he assert that the instruction actually given was in any respect an erroneous statement of the law. His argument is, quite simply, that this protective instruction becomes constitutionally impermissible when given over the defendant's objection.
15
In the Griffin case, the petitioner argues, the Court said that "comment on the refusal to testify" violates the constitutional privilege against compulsory self-incrimination, 380 U.S., at 614, 85 S.Ct., at 1232, and thus the "comment" made by the trial judge over the defendant's objection in the present case was a literal violation of the language of the Griffin opinion.8 Quite apart from this semantic argument, the petitioner contends that it is an invasion of the privilege against compulsory self-incrimination, as that privilege was perceived in the Griffin case, for a trial judge to draw the jury's attention in any way to a defendant's failure to testify unless the defendant acquiesces. We cannot accept this argument, either in terms of the language of the Griffin opinion or in terms of the basic postulates of the Fifth and Fourteenth Amendments.
16
It is clear from even a cursory review of the facts and the square holding of the Griffin case that the Court was there concerned only with adverse comment, whether by the prosecutor or the trial judge—"comment by the prosecution on the accused's silence or instructions by the court that such silence is evidence of guilt." Id., at 615, 85 S.Ct., at 1233. The Court reasoned that such adverse comment amounted to "a penalty imposed by courts for exercising a constitutional privilege. It cuts down on the privilege by making its assertion costly." Id., at 614, 85 S.Ct., at 1232.
17
By definition, "a necessary element of compulsory self-incrimination is some kind of compulsion." Hoffa v. United States, 385 U.S. 293, 304, 87 S.Ct. 408, 414, 17 L.Ed.2d 374. The Court concluded in Griffin that unconstitutional compulsion was inherent in a trial where prosecutor and judge were free to ask the jury to draw adverse inferences from a defendant's failure to take the witness stand.9 But a judge's instruction that the jury must draw no adverse inferences of any kind from the defendant's exercise of his privilege not to testify is "comment" of an entirely different order. Such an instruction cannot provide the pressure on a defendant found impermissible in Griffin. On the contrary, its very purpose is to remove from the jury's deliberations any influence of unspoken adverse inferences. It would be strange indeed to conclude that this cautionary instruction violates the very constitutional provision it is intended to protect.
18
The petitioner maintains, however, that whatever beneficent effect such an instruction may have in most cases, it may in some cases encourage the jury to draw adverse inferences from a defendant's silence, and, therefore, it cannot constitutionally be given in any case when a defendant objects to it. Specifically, the petitioner contends that in a trial such as this one, where the defense was presented through several witnesses, the defendant can reasonably hope that the jury will not notice that he himself did not testify. In such circumstances, the giving of the cautionary instruction, he says, is like "waving a red flag in front of the jury."
19
The petitioner's argument would require indulgence in two very doubtful assumptions: First, that the jurors have not noticed that the defendant did not testify and will not, therefore, draw adverse inferences on their own;10 second, that the jurors will totally disregard the instruction, and affirmatively give weight to what they have been told not to consider at all.11 Federal constitutional law cannot rest on speculative assumptions so dubious as these.
20
Moreover, even if the petitioner's simile be accepted, it does not follow that the cautionary instruction in these circumstances violates the privilege against compulsory self-incrimination. The very purpose of a jury charge is to flag the jurors' attention to concepts that must not be misunderstood, such as reasonable doubt and burden of proof. To instruct them in the meaning of the privilege against compulsory self-incrimination is no different.
21
It may be wise for a trial judge not to give such a cautionary instruction over a defendant's objection. And each State is, of course, free to forbid its trial judges from doing so as a matter of state law. We hold only that the giving of such an instruction over the defendant's objection does not violate the privilege against compulsory self-incrimination guaranteed by the Fifth and Fourteenth Amendments.12
B
22
The petitioner's second argument is based upon his constitutional right to counsel. Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799; Argersinger v. Hamlin, 407 U.S. 25, 92 S.Ct. 2006, 32 L.Ed.2d 530. That right was violated, he says, when the trial judge refused his lawyer's request not to give the instruction in question, thus interfering with counsel § trial strategy. That strategy assertedly was based upon studious avoidance of any mention of the fact that the defendant had not testified.
23
The argument is an ingenious one, but, as a matter of federal constitutional law, it falls of its own weight once the petitioner's primary argument has been rejected. In sum, if the instruction was itself constitutionally accurate, and if the giving of it over counsel's objection did not violate the Fifth and Fourteenth Amendments, then the petitioner's right to the assistance of counsel was not denied when the judge gave the instruction. To hold otherwise would mean that the constitutional right to counsel would be implicated in almost every wholly permissible ruling of a trial judge, if it is made over the objection of the defendant's lawyer.
24
In an adversary system of criminal justice, there is no right more essential than the right to the assistance of counsel. But that right has never been understood to confer upon defense counsel the power to veto the wholly permissible actions of the trial judge. It is the judge, not counsel, who has the ultimate responsibility for the conduct of a fair and lawful trial. " '[T]he judge is not a mere moderator, but is the governor of the trial for the purpose of assuring its proper conduct and of determining questions of law.' Quercia v. United States, 289 U.S. 466, 469, 53 S.Ct. 698, 77 L.Ed. 1321 (1933)." Geders v. United States, 425 U.S. 80, 86, 96 S.Ct. 1330, 1334, 47 L.Ed.2d 592.
25
The trial judge in this case determined in the exercise of his duty to give the protective instruction in the defendant's interest. We have held that it was no violation of the defendant's constitutional privilege for him to do so, even over the objection of defense counsel. Yet the petitioner argues that his constitutional right to counsel means that this instruction could constitutionally be given only if his lawyer did not object to it. We cannot accept the proposition that the right to counsel, precious though it be, can operate to prevent a court from instructing a jury in the basic constitutional principles that govern the administration of criminal justice.
26
For the reasons discussed in this opinion, the judgment of the Supreme Court of Oregon is affirmed.
27
It is so ordered.
28
Mr. Justice BRENNAN took no part in the consideration or decision of this case.
29
Mr. Justice STEVENS, dissenting.
30
Experience teaches us that most people formally charged with crime are guilty; yet we presume innocence until the trial is over. Experience also justifies the inference that most people who remain silent in the face of serious accusation have something to hide and are therefore probably guilty; yet we forbid trial judges or juries to draw that inference. The presumption of innocence and the protections afforded by the Due Process Clause impose a significant cost on the prosecutor who must prove the defendant's guilt beyond a reasonable doubt without the aid of his testimony. That cost is justified by the paramount importance of protecting a small minority of accused persons—those who are actually innocent—from wrongful conviction.
31
The Fifth Amendment itself is predicated on the assumption that there are innocent persons who might be found guilty if they could be compelled to testify at their own trials.1 Every trial lawyer knows that some truthful denials of guilt may be considered incredible by a jury—either because of their inherent improbability or because their explanation, under cross-examination, will reveal unfavorable facts about the witness or his associates. The Constitution therefore gives the defendant and his lawyer the absolute right to decide that the accused shall not become a witness against himself. Even if the judge is convinced that the defendant's testimony would exonerate him, and even if he is motivated only by a desire to protect the defendant from the risk of an erroneous conviction, the judge has no power to override couns l's judgment about what is in his client's best interest.2
32
The Constitution wisely commits the critical decision of whether the defendant shall take the stand to the defendant and his lawyer, rather than the judge, for at least two reasons. First, they have greater access to information bearing on the decision than the judge can normally have. Second, they are motivated solely by concern for the defendant's interests; the judge inevitably is concerned with society's interest in convicting the guilty as well as protecting the innocent. The choice, therefore, to testify or not to testify is for the defendant and his lawyer, not the judge, to make. The Constitution commands that the decision be made free of any compulsion by the State.
33
In Griffin v. California, 380 U.S. 609, 85 S.Ct. 1229, 14 L.Ed.2d 106, the Court held that fair and accurate comment by the trial judge on the defendant's failure to take the witness stand was a form of compulsion forbidden by the Constitution.3 By making silence "costly," the Court ruled, the trial judge's comments had an effect similar in kind, though not in degree, to a contempt ruling or a thumbscrew. Id., at 614, 85 S.Ct., at 1232-1233. Of course, a defendant's silence at his own trial is "almost certain to prejudice the defense no matter what else happens in the courtroom";4 for the jury will probably draw an unfavorable inference despite instructions to the contrary. Although this "cost" can never be eliminated, Griffin stands for the proposition that the government may not add unnecessarily to the risk taken by a defendant who stands mute. Reasonable men may differ about the wisdom of that holding.5 But if it is still the law, this conviction should be overturned.
34
In some trials, the defendant's silence will be like "the sun . . . shining with full blaze on the open eye." State v. Cleaves, 59 Me. 298, 301 (1871). But in other trials—perhaps when the whole story has been told by other witnesses or when the prosecutor's case is especially weak—the jury may not focus on the defendant's failure to testify. For the judge or prosecutor to call it to the jury's attention has an undeniably adverse effect on the defendant. Even if jurors try faithfully to obey their instructions, the connection between silence and guilt is often too direct and too natural to be resisted. When the jurors have in fact overlooked it, telling them to ignore the defendant's silence is like telling them not to think of a white bear.
35
The Court thinks it "would be strange indeed to conclude that this cautionary instruction violates the very constitutional provision it is intended to protect." Ante, at 339. Unless the same words mean different things in different mouths, this holding also applies to statements made by the prosecutor in his closing argument. Yet I wonder if the Court would find petitioner's argument as strange if the prosecutor, or even the judge, had given the instruction three or four times, in slightly different form, just to make sure the jury knew that silence, like killing Caesar, is consistent with honor.6
36
It is unrealistic to assume that instructions on the right to silence always have a benign effect.7 At times the instruction will make the defendant's silence costly indeed. So long as Griffin is good law, the State must have a strong reason for ignoring the defendant's request that the instruction not be given. Remarkably, the Court fails to identify any reason for overriding the defendant's choice.8 Eliminating the instruction on request costs the State nothing, other than the advantage of calling attention to the defendant's silence. A defendant may waive his Fifth Amendment right to silence, and a judge who thinks his decision unwise may not overrule it. The defendant should also be able to waive, without leave of court, his lesser right to an instruction about his Fifth Amendment right to silence.9 Many state courts have accepted this conclusion by ruling that no self-incrimination instruction should be given over the defendant's objection.10 An ungrudging application of Griffin requires that we do the same.
37
I respectfully dissent.
38
Mr. Justice MARSHALL joins this opinion, with the exception of the first paragraph and footnote 5.
1
Section 162.155 of Ore.Rev.Stat. (1977) provides, in pertinent part:
"(1) A person commits the crime of escape in the second degree if:
* * * * *
"(c) He escapes from a correctional facility."
2
Section 161.295 of Ore.Rev.Stat. (1977) provides:
"(1) A person is not responsible for criminal conduct if at the time of such conduct as a result of mental disease or defect he lacks substantial capacity either to appreciate the criminality of his conduct or to conform his conduct to the requirements of law.
"(2) . . . [T]he terms 'mental disease or defect' do not include an abnormality manifested only by repeated criminal or otherwise antisocial conduct."
3
The federal courts have generally held that giving the protective instruction ov r the defendant's objection is not a constitutional violation. See, e. g., United States v. Williams, 172 U.S.App.D.C. 290, 295, 521 F.2d 950, 955; United States v. McGann, 431 F.2d 1104, 1109 (CA5); United States v. Rimanich, 422 F.2d 817, 818 (CA7); but cf. Mengarelli v. United States Marshal ex rel Dist. of Nevada, 476 F.2d 617 (CA9); United States v. Smith, 392 F.2d 302 (CA4). By contrast, several state courts have held, although not always in constitutional terms, that the giving of such an instruction in these circumstances is prejudicial error. See, e. g., Russell v. State, 240 Ark. 97, 398 S.W.2d 213 (reversible error); People v. Molano, 253 Cal.App.2d 841, 61 Cal.Rptr. 821 (proscribed by Griffin v. California, 380 U.S. 609, 85 S.Ct. 1229, 14 L.Ed.2d 106); Gross v. State, 261 Ind. 489, 306 N.E.2d 371 (violates Fifth Amendment); State v. Kimball, 176 N.W.2d 864 (Iowa) (may violate spirit of Griffin ).
4
The Malloy decision overruled the long-settled doctrine of Twining v. New Jersey, 211 U.S. 78, 29 S.Ct. 14, 53 L.Ed. 97, and Adamson v. California, 332 U.S. 46, 67 S.Ct. 1672, 91 L.Ed. 1903. See Snyder v. Massachusetts, 291 U.S. 97, 105, 54 S.Ct. 330, 332, 78 L.Ed.2d 674; Cohen v. Hurley, 366 U.S. 117, 127-129, 81 S.Ct. 954, 6 L.Ed.2d 156.
5
The practice held unconstitutional in Griffin had previously been the subject of considerable academic and professional controversy. See, e. g., Note, Comment on Defendant's Failure to Take the Stand, 57 Yale L.J. 145 (1947); Bruce, The Right to Comment on the Failure of the Defendant to Testify, 31 Mich.L.Rev. 226 (1932). Indeed, at one time the practice had enjoyed the approval of the American Law Institute and the American Bar Association. 9 ALI Proceedings 202, 203 (1931); 56 A.B.A.Rep. 137-159 (1931); 59 A.B.A.Rep. 130-141 (1934). And instructions similar to those at issue in Griffin had been sanctioned by the Model Code of Evidence and the Uniform Rules of Evidence. ALI Model Code of Evidence, Rule 201 (1942); Uniform Rules of Evidence, Rule 23(4) (1953).
6
In Tehan v. U. S. ex rel. Shott, 382 U.S. 406, 86 S.Ct. 459, 15 L.Ed.2d 453, it was held that the rule of Griffin v. California was not to be given retrospective application.
7
It has long been established that a defendant in a federal criminal trial has that right as a matter of statutory law. Bruno v. United States, 308 U.S. 287, 60 S.Ct. 198, 84 L.Ed. 257.
8
The petitioner also relies upon a remark in the dissenting opinion in United States v. Gainey, 380 U.S. 63, 73, 85 S.Ct. 754, 761, 13 L.Ed.2d 658: "or, if the defendant sees fit, he may choose to have no mention made of his silence by anyone." This reliance is misplaced. The Gainey case did not involve the Fifth Amendment; the statement in the dissenting opinion expressed the author's understanding of a federal statute, not the Constitution; and, perhaps most important, the statement was subscribed to by no other Member of the Court.
9
Compulsion was also found to be present in Brooks v. Tennessee, 406 U.S. 605, 92 S.Ct. 1891, 32 L.Ed.2d 358, where the State required a defendant who chose to testify to take the witness stand ahead of any othe defense witnesses. Thus a defendant was compelled to make his decision—whether or not to testify—at a point in the trial when he could not know if his testimony would be necessary or even helpful to his case. Id., at 610-611, 92 S.Ct., at 1894-95.
10
It has often been noted that such inferences may be inevitable. Jeremy Bentham wrote more than 150 years ago: "[B]etween delinquency on the one hand, and silence under inquiry on the other, there is a manifest connexion; a connexion too natural not to be constant and inseparable." 5 J. Bentham, Rationale of Judicial Evidence 209 (1827). And Wigmore, among many others, made the same point: "What inference does a plea of privilege support? The layman's natural first suggestion would probably be that the resort to privilege in each instance is a clear confession of crime." 8 J. Wigmore, Evidence § 2272, p. 426 (McNaughton rev. 1961).
11
As this Court has remarked before: "[W]e have not yet attained that certitude about the human mind which would justify us in . . . a dogmatic assumption that jurors, if properly admonished, neither could nor would heed the instructions of the trial court . . . ." Bruno v. United States, supra, at 294, 60 S.Ct., at 201.
12
More than 50 years ago, Judge Learned Hand dealt with this question in a single sentence: "It is no doubt better if a defendant requests no charge upon the subject, for the trial judge to say nothing about it; but to say that when he does, it is error, carries the doctrine of self-incrimination to an absurdity." Becher v. United States, 5 F.2d 45, 49 (CA2).
1
"But the act was framed with a due regard also to those who might prefer to rely upon the presumption of innocence which the law gives to every one, and not wish to be witnesses. It is not every one who can safely venture on the witness stand, though entirely innocent of the charge against him. Excessive timidity, nervousness when facing others and attempting to explain transactions of a suspicious character, and offences charged against him, will often confuse and embarrass him to such a degree as to increase rather than remove prejudices against him. It is not every one, however honest, who would, therefore, willingly be placed on the witness stand. The statute, in tenderness to the weakness of those who from the causes mentioned might refuse to ask to be a witness, particularly when they may have been in some degree compromised by their association with others, declares that the failure of the defendant in a criminal action to request to be a witness shall not create any presumption against him." Wilson v. United States, 149 U.S. 60, 66, 13 S.Ct. 765, 766, 37 L.Ed. 650.
The Court was there referring to the statutory prohibition against comment on the failure of the accused to testify. But, as we stated in Griffin v. California, 380 U.S. 609, 613-614, 85 S.Ct. 1229, 1232, 14 L.Ed.2d 106: "If the words 'Fifth Amendment' are substituted for 'act' and for 'statute,' the spirit of the Self-Incrimination Clause is reflected."
2
Moreover, there are defendants who prefer to risk a finding of guilt rather than being required to incriminate others whom they either love or fear.
3
Griffin was decided over the dissent of Mr. Justice Stewart and Mr. Justice White. I cannot believe that any Member of the Griffin majority would join today's opinion.
4
United States v. Davis, 437 F.2d 928, 933 (CA7 1971).
5
The Court today cites the same scholarly materials, prepared in the 1930's and 1940's, that Mr. Justice Stewart cited in his dissent in Griffin. Compare ante, at 337 n. 5, with 380 U.S., at 622 nn. 6-8, 85 S.Ct., at 1237 nn. 6-8. The list could have been much longer. In fact, the roster of scholars and judges with reservations about expanding the Fifth Amendment privilege read like an honor roll of the legal profession. See, e. g., Wigmore, Nemo Tenetur Seipsum Prodere, 5 Harv.L.Rev. 71, 75-88 (1891); Corwin, The Supreme Court's Construction of the Self-Incrimination Clause, 29 Mich.L.Rev. 191, 207 (1930); Pound, Legal Interrogation of Persons Accused or Suspected of Crime, 24 J.Crim.L.C. & P.S. 1014 (1934); Friendly, The Fifth Amendment Tomorrow: The Case For Constitutional Change, 37 U.Cin.L.Rev. 671 (1968); W. Schaefer, The Suspect and Society 59-76 (1967); Traynor, The Devils of Due Process in Criminal Detection, Detention, and Trial, 33 U.Chi.L.Rev. 657, 677 (1966).
6
Cf. W. Shakespeare, Julius Caesar, Act III, Sc. II:
"Here, under leave of Brutus and the rest
(For Brutus is an honourable man;
So are they all, all honourable men)
Come I to speak in Caesar's funeral.
He was my friend, faithful and just to me:
But Brutus says he was ambitious;
And Brutus is an honourable man.
He hath brought many captives home to Rome,
Whose ransoms did the general coffers fill:
Did this in Caesar seem ambitious?
When that the poor have cried, Caesar hath wept:
Ambition should be made of sterner stuff:
Yet Brutus says he was ambitious;
And Brutus is an honourable man.
You all did see that on the Lupercal
I thrice presented him a kingly crown,
Which he did thrice refuse: was this ambition?
Yet Brutus says he was ambitious;
And, sure, he is an honourable man."
For the sake of comparison, here is a charge actually given in one reported case:
" 'I recall that the defendant, even though he offered evidence, he did not take the stand and testify in his own behalf. Now, I make mention of that fact for this purpose. I have told you that he had no responsibility to offer any evidence, had a right to but no responsibility to; that he owed you no duty to offer any evidence; that the State had the whole burden and has the whole burden of proof throughout this case. Now that being so, he had an absolute right under the law to try his lawsuit in the fashion that he decided that it ought to be tried. He had a right to offer no evidence. If he offered any, he had a right to remain off the stand. You can't punish any man for exercising a lawful right. So I give emphasis to this fact: The fact that the defendant did not testify does not permit you to speculate about why he did not. I have told you why he did not. He has exercised a lawful right. You may not take the position during your deliberations did he have something
he didn't want us to know. He has exercised the lawful right and you may not hold it against him to any extent the fact that he id not testify. You must deal with what you have before you in this evidence and you may not hold against the defendant a'tall the fact that he did not testify.' " State v. Caron, 288 N.C. 467, 471-472, 219 S.E.2d 68, 71 (1975), cert. denied, 425 U.S. 971, 96 S.Ct. 2168, 48 L.Ed.2d 794.
7
Deciding when the instruction will do more harm than good is not an easy task. But the same may be said of deciding whether to take the stand at all.
8
How far the Court deviates from the course charted in Griffin may be seen by comparing its reasoning to the analysis in an earlier case that followed Griffin more faithfully. In Brooks v. Tennessee, 406 U.S. 605, 92 S.Ct. 1891, 32 L.Ed.2d 358, state law required the defendant to be the first defense witness if he wanted to testify at all. Since defendants may not be sequestered like other witnesses, this rule was the only way to prevent opportunistic defendants from shading their testimony to match that of other defense witnesses. Despite the substantial state interest in avoiding perjury, this Court struck down the rule, relying on Griffin. 406 U.S., at 611, 92 S.Ct., at 1894. The Brooks court thought that a defendant who planned to take the stand only if his case was weak, but who could not judge its weakness in advance, might be unnecessarily compelled to testify under the Tennessee law. In Brooks, the State had a good reason for its action; here the State has none. In Brooks, the compulsive force of the rule was speculative at best; here it is direct and plain. If today we are true to Griffin, as the Court asserts, then Brooks was surely wrong.
9
It is true that Learned Hand thought it absurd to find a violation of the Fifth Amendment when an instruction of this sort was given over the defendant's objection. Ante, at 341 n. 12. See Becher v. United States, 5 F.2d 45, 49 (CA2 1924). But Judge Hand did not foresee Griffin, just as he did not foresee developments that were nearer at hand. In United States v. Bruno, 105 F.2d 921 (CA2 1939), for example, he joined an opinion affirming a conviction even though the trial judge had refused to instruct the jury not to penalize the defendants for remaining silent. This Court granted certiorari and reversed. 308 U.S. 287, 60 S.Ct. 198, 84 L.Ed. 257. Now that Griffin has been decided, the more significant portion of Judge Hand's statement is his belief that "[i]t is no doubt better if a defendant requests no charge upon the subject, for the trial judge to say nothing about it." 5 F.2d, at 49.
10
See People v. Hampton, 394 Mich. 437, 231 N.W.2d 654 (1975); Gross v. State, 261 Ind. 489, 306 N.E.2d 371 (1974); State v. White, 285 A.2d 832 (Me.1972); Villines v. State, 492 P.2d 343 (Okl.Crim.App.1971); State v. Kimball, 176 N.W.2d 864 (Iowa 1970); Russell v. State, 240 Ark. 97, 398 S.W.2d 213 (1966); People v. Horrigan, 253 al.App.2d 519, 61 Cal.Rptr. 403 (1967); People v. Molano, 253 Cal.App.2d 841, 61 Cal.Rptr. 821 (1967). See also United States v. Smith, 392 F.2d 302 (CA4 1968).
| 01
|
435 U.S. 291
98 S.Ct. 1067
55 L.Ed.2d 287
Edmund FOLEY, Appellant,v.William G. CONNELIE, Individually and in his capacity as Superintendent of the New York State Police, and S. A. Smith, Individually, and in his capacity as Director of Personnel of the New York State Police.
No. 76-839.
Argued Nov. 8, 1977.
Decided March 22, 1978.
Syllabus
New York statute limiting appointment of members of state police force to citizens of the United States held not to violate the Equal Protection Clause of the Fourteenth Amendment. Pp. 294-300.
(a) Citizenship may be a relevant qualification for fulfilling those "important nonelective . . . positions" held by "officers who participate directly in the formulation, execution, or review of broad public policy," Sugarman v. Dougall, 413 U.S. 634, 647, 93 S.Ct. 2842, 2850, 37 L.Ed.2d 853. Strict equal protection scrutiny is not required to justify classifications applicable to such positions; a State need only show some rational relationship between the interest sought to be protected and the limiting classification. In deciding what level of scrutiny is to be applied, each position in question must be examined to determine whether it involves discretionary decisionmaking, or execution of policy, which substantially affects members of the political community. Pp. 294-297.
(b) Police officials are clothed with authority to exercise an almost infinite variety of discretionary powers, calling for a very high degree of judgment and discretion, the exercise of which can seriously affect individuals. Police officers fall within the category of "important non-elective . . . officers who participate directly in the . . . execution . . . of broad public policy." Dougall, supra, at 647, 93 S.Ct., at 2850 (emphasis added). In the enforcement and execution of the laws the police function is one where citizenship bears a rational relationship to the special demands of the particular position, and a State may therefore confine the performance of this important public responsibility to those who are citizens. Pp. 297-300.
419 F.Supp. 889, affirmed.
Jonathan A. Weiss, New York City, for appellant.
Judith A. Gordon, New York City, for appellees.
Mr. Chief Justice BURGER delivered the opinion of the Court.
1
We noted probable jurisdiction in this case to consider whether a State may constitutionally limit the appointment of members of its police force to citizens of the United States. 430 U.S. 944, 97 S.Ct. 1577, 51 L.Ed.2d 791 (1977).
2
The appellant, Edmund Foley, is an alien eligible in due course to become a naturalized citizen, who is lawfully in this country as a permanent resident. He applied for appointment as a New York State trooper, a position which is filled on the basis of competitive examinations. Pursuant to a New York statute, N.Y.Exec. Law § 215(3) (McKinney 1972), state authorities refused to allow Foley to take the examination. The statute provides:
3
"No person shall be appointed to the New York state police force unless he shall be a citizen of the United States."
4
Appellant then brought this action in the United States District Court for the Southern District of New York, seeking a declaratory judgment that the State's exclusion of aliens from its police force violates the Equal Protection Clause of the Fourteenth Amendment. After Foley was certified as representative of a class of those similarly situated, a three-judge District Court was convened to consider the merits of the claim. The District Court held the statute to be constitutional. 419 F.Supp. 889 (1976). We affirm.
5
* The essential facts in this case are uncontroverted. New York Exec. Law § 215(3) (McKinney 1972) prohibits appellant and his class from becoming state troopers. It is not disputed that the State has uniformly complied with this restriction since the statute was enacted in 1927. Under it, an alien who desires to compete for a position as a New York State trooper must relinquish his foreign citizenship and become an American citizen. Some members of the class, including appellant, are not currently eligible for American citizenship due to waiting periods imposed by congressional enactment.1
6
A trooper in New York is a member of the state police force, a law enforcement body which exercises broad police authority throughout the State. The powers of troopers are generally described in the relevant statutes as including those functions traditionally associated with a peace officer. Like most peace officers, they are charged with the prevention and detection of crime, the apprehension of suspected criminals, investigation of suspect conduct, execution of warrants and have powers of search, seizure and arrest without a formal warrant under limited circumstances. In the course of carrying out these responsibilities an officer is empowered by New York law to resort to lawful force, which may include the use of any weapon that he is required to carry while on duty. All troopers are on call 24 hours a day and are required to take appropriate action whenever criminal activity is observed.
7
Perhaps the best shorthand description of the role of the New York State trooper was that advanced by the District Court: "State police are charged with the enforcement of the law, not in a private profession and for the benefit of themselves and their clients, but for the benefit of the people at large of the State of New York." 419 F.Supp., at 896.
II
8
Appellant claims that the relevant New York statute violates his rights under the Equal Protection Clause.
9
The decisions of this Court with regard to the rights of aliens living in our society have reflected fine, and often difficult, questions of values. As a Nation we exhibit extraordinary hospitality to those who come to our country,2 which is not surprising for we have often been described as "a nation of immigrants." Indeed, aliens lawfully residing in this society have many rights which are accorded to noncitizens by few other countries. Our cases generally reflect a close scrutiny of restraints imposed by States on aliens. But we have never suggested that such legislation is inherently invalid, nor have we held that all limitations on aliens are suspect. See Sugarman v. Dougall, 413 U.S. 634, 648, 93 S.Ct. 2842, 2850, 37 L.Ed.2d 853 (1973). Rather, beginning with a case which involved the denial of welfare assistance essential to life itself, the Court has treated certain restrictions on al ens with "heightened judicial solicitude," Graham v. Richardson, 403 U.S. 365, 372, 91 S.Ct. 1848, 1852, 29 L.Ed.2d 534 (1971), a treatment deemed necessary since aliens—pending their eligibility for citizenship—have no direct voice in the political processes. See United States v. Carolene Products Co., 304 U.S. 144, 152-153, 58 S.Ct. 778, 783-784, 82 L.Ed. 1234, n. 4 (1938).3
10
Following Graham, a series of decisions has resulted requiring state action to meet close scrutiny to exclude aliens as a class from educational benefits, Nyquist v. Mauclet, 432 U.S. 1, 97 S.Ct. 2120, 53 L.Ed.2d 63 (1977); eligibility for a broad range of public employment, Sugarman v. Dougall, supra; or the practice of licensed professions, Examining Board v. Flores de Otero, 426 U.S. 572, 96 S.Ct. 2264, 49 L.Ed.2d 65 (1976); In re Griffiths, 413 U.S. 717, 93 S.Ct. 2851, 37 L.Ed.2d 910 (1973). These exclusions struck at the noncitizens' ability to exist in the community, a position seemingly inconsistent with the congressional determination to admit the alien to permanent residence. See Graham, supra, 403 U.S. at 377-378, 91 S.Ct. at 1854-1855; Barrett, Judicial Supervision of Legislative Classifications—A More Modest Role for Equal Protection?, 1976 B.Y.U.L.Rev. 89, 101.4
11
It would be inappropriate, however, to require every statutory exclusion of aliens to clear the high hurdle of "strict scrutiny," because to do so would "obliterate all the distinctions between citizens and aliens, and thus depreciate the historic values of citizenship." Mauclet, supra, at 14, 97 S.Ct. at 2128. (BURGER, C. J., dissenting). The act of becoming a citizen is more than a ritual with no content beyond the fanfare of ceremony. A new citizen has become a member of a Nation, part of a people distinct from others. Cf. Worcester v. Georgia, 6 Pet. 515, 559, 8 L.Ed. 483 (1832). The individual, at that point, belongs to the polity and is entitled to participate in the processes of democratic decisionmaking. Accordingly, we have recognized "a State's historical power to exclude aliens from participation in its democratic political institutions," Dougall, supra, 413 U.S., at 648, 93 S.Ct., at 2850, as part of the sovereign's obligation " 'to preserve the basic conception of a political community.' " 413 U.S., at 647, 93 S.Ct., at 2850.
12
The practical consequence of this theory is that "our scrutiny will not be so demanding where we deal with matters firmly within a State's constitutional prerogatives." Dougall, supra, at 648, 93 S.Ct. at 2850. The State need only justify its classification by a showing of some rational relationship between the interest sought to be protected and the limiting classification. This is not intended to denigrate the valuable contribution of aliens who benefit from our traditional hospitality. It is no more than recognition of the fact that a democratic society is ruled by its people. Thus, it is clear that a State may deny aliens the right to vote, or to run for elective office, for these lie at the heart of our political institutions. See 413 U.S., at 647-649, 93 S.Ct., at 2850-2851. Similar considerations support a legislative determination o exclude aliens from jury service. See Perkins v. Smith, 370 F.Supp. 134 (Md.1974), aff'd, 426 U.S. 913, 96 S.Ct. 2616, 49 L.Ed.2d 368 (1976). Likewise, we have recognized that citizenship may be a relevant qualification for fulfilling those "important nonelective executive, legislative, and judicial positions," held by "officers who participate directly in the formulation, execution, or review of broad public policy." Dougall, supra, 413 U.S. at 647, 93 S.Ct. at 2850. This is not because our society seeks to reserve the better jobs to its members. Rather, it is because this country entrusts many of its most important policy responsibilities to these officers, the discretionary exercise of which can often more immediately affect the lives of citizens than even the ballot of a voter or the choice of a legislator. In sum, then, it represents the choice, and right, of the people to be governed by their citizen peers. To effectuate this result, we must necessarily examine each position in question to determine whether it involves discretionary decisionmaking, or execution of policy, which substantially affects members of the political community.5 The essence of our holdings to date is that although we extend to aliens the right to education and public welfare, along with the ability to earn a livelihood and engage in licensed professions, the right to govern is reserved to citizens.
III
13
A discussion of the police function is essentially a description of one of the basic functions of government, especially in a complex modern society where police presence is pervasive. The police function fulfills a most fundamental obligation of government to its constituency. Police officers in the ranks do not formulate policy, per se, but they are clothed with authority to exercise an almost infinite variety of discretionary powers.6 The execution of the broad powers vested in them affects members of the public significantly and often in the most sensitive areas of daily life. Our Constitution, of course, provides safeguards to persons, homes and possessions, as well as guidance to police officers. And few countries, if any, provide more protection to individuals by limitations on the power and discretion of the police. Nonetheless, police may, in the exercise of their discretion, invade the privacy of an individual in public places, e. g., Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). They may under some conditions break down a door to enter a dwelling or other building in the execution of a warrant, e. g., Miller v. United States, 357 U.S. 301, 78 S.Ct. 1190, 2 L.Ed.2d 1332 (1958), or without a formal warrant in very limited circumstances; they may stop vehicles traveling on public highways, e. g., Pennsylvania v. Mimms, 434 U.S. 106, 98 S.Ct. 330, 54 L.Ed.2d 331 (1977).
14
An arrest, the function most commonly associated with the police, is a serious matter for any person even when no prosecution follows or when an acquittal is obtained. Most arrests are without prior judicial authority, as when an officer observes a criminal act in progress or suspects that felonious activity is afoot. Even the routine traffic arrests made by the state trooper—for speeding, weaving, reckless driving, improper license plates, absence of inspection stickers, or dangerous physical condition of a vehicle, to describe only a few of the more obvious common viol tions—can intrude on the privacy of the individual. In stopping cars, they may, within limits, require a driver or passengers to disembark and even search them for weapons, depending on time, place and circumstances. That this prophylactic authority is essential is attested by the number of police officers wounded or killed in the process of making inquiry in borderline, seemingly minor violation situations—for example, where the initial stop is made for a traffic offense but, unknown to the officer at the time, the vehicle occupants are armed and engaged in or embarked on serious criminal conduct.
15
Clearly the exercise of police authority calls for a very high degree of judgment and discretion, the abuse or misuse of which can have serious impact on individuals.7 The office of a policeman is in no sense one of "the common occupations of the community" that the then Mr. Justice Hughes referred to in Truax v. Raich, 239 U.S. 33, 41, 36 S.Ct. 7, 10, 60 L.Ed. 131 (1915). A policeman vested with the plenary discretionary powers we have described is not to be equated with a private person engaged in routine public employment or other "common occupations of the community" who exercises no broad power over people generally. Indeed, the rationale for the qualified immunity historically granted to the police rests on the difficult and delicate judgments these officers must often make. See Pierson v. Ray, 386 U.S. 547, 555-557, 87 S.Ct. 1213, 1218-1219, 18 L.Ed.2d 288 (1967); cf. Scheuer v. Rhodes, 416 U.S. 232, 245-246, 94 S.Ct. 1683, 1691, 40 L.Ed.2d 90 (1974).
16
In short, it would be as anomalous to conclude that citizens may be subjected to the broad discretionary powers of noncitizen police officers as it would be to say that judicial officers and jurors with power to judge citizens can be aliens. It is not surprising, therefore, that most States expressly confine the employment of police officers to citizens,8 whom the State may reasonably presume to be more familiar with and sympathetic to American traditions.9 Police officers very clearly fall within the category of "important non-elective . . . officers who participate directly in THE . . . EXECUTION . . . Of broad public polICY." dougall, 413 u.s., at 647, 93 S.Ct., at 2850 (emphasis added). In the enforcement and execution of the laws the police function is one where citizenship bears a rational relationship to the special demands of the particular position. A State may, therefore, consonant with the Constitution, confine the performance of this important public responsibility to citizens of the United States.10
17
Accordingly, the judgment of the District Court is
18
Affirmed.
19
Mr. Justice STEWART, concurring.
20
The dissenting opinions convincingly demonstrate that it is difficult if not impossible to reconcile the Court's judgment in this case with the full sweep of the reasoning and authority of some of our past decisions. It is only because I have become increasingly doubtful about the validity of those decisions (in at least some of which I concurred) that I join the opinion of the Court in this case.
21
Mr. Justice BLACKMUN, concurring in the result.
22
Once again the Court is called upon to adjudicate the constitutionality of one of New York's many statutes that impose a requirement of citizenship for occupational activity.* Although I have joined the Court in striking down citizenship requirements of this kind, see 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); Examining Board v. Flores de Otero, 426 U.S. 572, 96 S.Ct. 2264, 49 L.Ed.2d 65 (1976), including, specifically, some imposed by the State of New York, see Sugarman v. Dougall, 413 U.S. 634, 93 S.Ct. 2842, 37 L.Ed.2d 853 (1973); and Nyquist v. Mauclet, 432 U.S. 1, 97 S.Ct. 2120, 53 L.Ed.2d 63 (1977), I have no difficulty in agreeing with the result the Court reaches here.
23
The Court's prior cases clearly establish the standards to be applied in this one. Mauclet, of course, decided just last Term, is our most recent pronouncement in this area of constitutional law. There, citing Graham v. Richardson, 403 U.S. at 372, 91 S.Ct. at 1852, we observed once again that a State's classifications based on alienage "are inherently suspect and subject to close judicial scrutiny, ' and, citing Flores de Otero, 426 U.S., at 605, 96 S.Ct., at 2282, we went on to say that " '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.' " 432 U.S., at 7, 97 S.Ct., at 2124. In the same opinion, however, limitations were intimated when, citing Sugarman v. Dougall, 413 U.S., at 642 and 647, 93 S.Ct., at 2847 and 2850, we said:
24
"[T]he 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, or of 'elective or important nonelective' officials 'who participate directly in the formulation, execution, or review of broad public policy.' [413 U.S.], at 647, 93 S.Ct. 2842. See id., at 648, 93 S.Ct. 2842." 432 U.S., at 11, 97 S.Ct., at 2126.
25
When the State is so acting, it need justify its discriminatory classifications only by showing some rational relationship between its interest in preserving the political community and the classification it employs.
26
I agree with the Court's conclusion that the State of New York has vested its state troopers with powers and duties that are basic to the function of state government. The State may rationally conclude that those who are to execute these duties should be limited to persons who can be presumed to share in the values of its political community as, for example, those who possess citizenship status. New York, therefore, consistent with the Federal Constitution, may preclude aliens from serving as state troopers.
27
Mr. Justice MARSHALL, with whom Mr. Justice BRENNAN and Mr. Justice STEVENS joins, dissenting.
28
Almost a century ago, in the landmark case of Yick Wo v. Hopkins, 118 U.S. 356, 369, 6 S.Ct. 1064, 1070, 30 L.Ed. 220 (1886), this Court recognized that aliens are "persons" within the meaning of the Fourteenth Amendment. Eighty-five years later, in Graham v. Richardson, 403 U.S. 365, 91 S.Ct. 1848, 29 L.Ed.2d 534 (1971), the Court concluded that aliens constitute a " 'discrete and insular' minority," and that laws singling them out for unfavorable treatment "are therefore subject to strict judicial scrutiny." Id. at 372, 376, 91 S.Ct., at 1854. During the ensuing six Terms, we have invalidated state laws discriminating against aliens on four separate occasions, finding that such discrimination could not survive strict scrutiny. Sugarman v. Dougall, 413 U.S. 634, 93 S.Ct. 2842, 37 L.Ed.2d 853 (1973) (competitive civil service); In re Griffiths, 413 U.S. 717, 93 S.Ct. 2851, 37 L.Ed.2d 910 (1973) (attorneys); Examining Board v. Flores de Otero, 426 U.S. 572, 96 S.Ct. 2264, 49 L.Ed.2d 65 (1976) (civil engineers); Nyquist v. Mauclet, 432 U.S. 1, 97 S.Ct. 2120, 53 L.Ed.2d 63 (1977) (financial assistance for higher education).
29
Today the Court upholds a law excluding aliens from public employment as state troopers. It bases its decision largely on dictum from Sugarman v. Dougall, supra, to the effect that aliens may be barred from holding "state elective or important nonelective executive, legislative, and judicial positions," because persons in these positions "participate directly in the formulation, execution, or review of broad public policy." 413 U.S., at 647, 93 S.Ct., at 2850.1 I do not agree with the Court that state troopers perform functions placing them within this "narro[w] . . . exception," Nyquist v. Mauclet, supra, at 11, 97 S.Ct., at 2126, to our usual rule that discrimination against aliens is presumptively unconstitutional. According y I dissent.
30
In one sense, of course, it is true that state troopers participate in the execution of public policy. Just as firefighters execute the public policy that fires should be extinguished, and sanitation workers execute the public policy that streets should be kept clean, state troopers execute the public policy that persons believed to have committed crimes should be arrested. But this fact simply demonstrates that the Sugarman exception, if read without regard to its context, "would swallow the rule." Nyquist, supra, at 11, 97 S.Ct. at 2127. Although every state employee is charged with the "execution" of public policy, Sugarman unambiguously holds that a blanket exclusion of aliens from state jobs is unconstitutional.
31
Thus the phrase "execution of broad public policy" in Sugarman cannot be read to mean simply the carrying out of government programs, but rather must be interpreted to include responsibility for actually setting government policy pursuant to a delegation of substantial authority from the legislature. The head of an executive agency for example, charged with promulgating complex regulations under a statute, executes broad public policy in a sense that file clerks in the agency clearly do not. In short, as Sugarman indicates, those "elective or important nonelective" positions that involve broad policymaking responsibilities are the only state jobs from which aliens as a group may constitutionally be excluded. 413 U.S., at 647, 93 S.Ct., at 2850. In my view, the job of state trooper is not one of those positions.
32
There is a vast difference between the formulation and execution of broad public policy and the application of that policy to specific factual settings. While the Court is correct the "the exercise of police authority calls for a very high degree of judgment and discretion," ante, at 298, the judgments required are factual in nature; the policy judgments that govern an officer's conduct are contained in the Federal and State Constitutions, statutes, and regulations.2 The officer responding to a particular situation is only applying the basic policy choices—which he has no role in shaping—to the facts as he perceives them.3 We have previously recognized this distinction between the broad policy responsibilities exercised by high executive officials and the more limited responsibilities of police officers and found it relevant in defining the scope of immunity afforded under 42 U.S.C. § 1983:
33
"When a court evaluates police conduct relating to an arrest its guideline is 'good faith and probable cause.' In the case of higher officers of the executive branch, however, the inquiry is far more complex since the range of decisions and choices—whether the formulation of policy, of legislation, of budgets, or of day-to-day decisions—is virtually infinite. . . . [S]ince the options which a chief executive and his principal subordinates must consider are far broader and far more subtle than those made by officials with less responsibility, the range of discretion must be comparably broad." Scheuer v. Rhodes, 416 U.S. 232, 245-247, 94 S.Ct. 1683, 1691, 40 L.Ed.2d 90 (1974) (citation omitted).
34
The Court places great reliance on the fact that policemen make arrests and perform searches, often "without prior judicial authority." Ante, at 298. I certainly agree that "[an] arrest is a serious matter," ibid., and that we should be concerned about all "intru[sions] on the privacy of the individual." Ibid. But these concerns do not in any way make it "anomalous" for citizens to be arrested and searched by "noncitizen police officers," ante, at 299, at least not in New York State. By statute, New York authorizes "any person" to arrest another who has actually committed a felony or who has committed any other offense in the arresting person's presence. N.Y.Crim.Proc.Law § 140.30 (McKinney 1971). Moreover, a person making an arrest pursuant to this statute is authorized to make a search incident to the arrest.4 While law enforcement is primarily the responsibility of state troopers, it is nevertheless difficult to understand how the Court can imply that the troopers' arrest and search authority justifies excluding aliens from the police force when the State has given all private persons, including aliens, such authority.
35
In Griffiths we held that the State could not limit the practice of law to citizens, "despite a recognition of the vital public and political role of attorneys," Nyquist v. Mauclet, 432 U.S., at 11, 97 S.Ct., at 2126. It is similarly not a denigration of the important public role of the state trooper—who, as the Court notes, ante, at 297, operates "in the most sensitive areas of daily life"—to find that his law enforcement responsibilities do not "make him a formulator of government policy." In re Griffiths, 413 U.S., at 729, 93 S.Ct., at 2858. Since no other rational reason, let alone a compelling state interest, has been advanced in support of the statute here at issue,5 I would hold that the statute's xclusion of aliens from state trooper positions violates the Equal Protection Clause of the Fourteenth Amendment.
36
Mr. Justice STEVENS, with whom Mr. Justice BRENNAN joins, dissenting.
37
A State should, of course, scrutinize closely the qualifications of those who perform professional services within its borders. Police officers, like lawyers, must be qualified in their field of expertise and must be trustworthy. Detailed review of each individual's application for employment is therefore appropriate. Conversely, a rule which disqualifies an entire class of persons from professional employment is doubly objectionable. It denies the State access to unique individual talent; it also denies opportunity to individuals on the basis of characteristics that the group is thought to possess.
38
The first objection poses a question of policy rather than constitutional law. The wisdom of a rule denying a law enforcement agency the services of Hercule Poirot or Sherlock Holmes is thus for New York, not this Court, to decide. But the second objection raises a question of a different kind and a satisfactory answer to this question is essential to the validity of the rule: What is the group characteristic that justifies the unfavorable treatment of an otherwise qualified individual simply because he is an alien?
39
No one suggests that aliens as a class lack the intelligence or the courage to serve the public as police officers. The disqualifying characteristic is apparently a foreign allegiance which raises a doubt concerning trustworthiness and loyalty so pervasive that a flat ban against the employment of any alien in any law enforcement position is thought to be justified. But if the integrity of all aliens is suspect, why may not a State deny aliens the right to practice law? Are untrustworthy or disloyal lawyers more tolerable than untrustworthy or disloyal policemen? Or is the legal profession better able to detect such characteristics on an individual basis that is the police department? Unless the Court repudiates its holding in In re Griffiths, 413 U.S. 717, 93 S.Ct. 2851, 37 L.Ed.2d 910, it must reject any conclusive presumption that aliens, as a class, are disloyal or untrustworthy.1
40
A characteristic that all members of the class do possess may provide the historical explanation for their exclusion from some categories of public employment. Aliens do not vote. Aliens and their families were therefore unlikely to have been beneficiaries of the patronage system which controlled access to public employment during so much of our history. The widespread exclusion of aliens from such positions today may well be nothing more than a vestige of the historical relationship between nonvoting aliens and a system of distributing the spoils of victory to the party faithful.2 If that be true, it might explain, but cannot justify, the discrimination.
41
Even if patronage never influenced the selection of police officers in New York, reference to the law governing denial of public employment for political reasons is nevertheless instructive. In Elrod v. Burns, 427 U.S. 347, 96 S.Ct. 2673, 49 L.Ed.2d 547, the Court held that most public employees are protected from discharge because of their political beliefs but recognized that an exception was required for policymaking officials.3 The exception identified in Burns was essentially the same as the category of "officers who participate in the formulation, execution, or review of broad public policy" described in Sugarman v. Dougall, 413 U.S. 634, 647, 93 S.Ct. 2842, 2850, 37 L.Ed.2d 853. In both cases the special nature of the policymaking position was recognized as justifying a form of discriminatory treatment that could not be applied to regular employees.
42
The Court should draw the line between policymaking and nonpolicymaking positions in as consistent and intelligible a fashion as possible. As Mr. Justice MARSHALL points out, ante, at 305, in the context of immunity from liability under 42 U.S.C. § 1983, the Court placed the police officer in a different category from the Governor of Ohio. See Scheuer v. Rhodes, 416 U.S. 232, 245-247, 94 S.Ct. 1683, 1691-1692, 40 L.Ed.2d 90. And under Elrod v. Burns, supra, the Court would unquestionably condemn the dismissal of a citizen state trooper because his political affiliation differed from that of his superiors. Yet, inexplicably, every state trooper is transformed into a high ranking, policymaking official when the question presented is whether persons may be excluded from all positions in the police force simply because they are aliens.
43
Since the Court does not purport to disturb the teaching of Sugarman, this transformation must rest on the unarticulated premise that the police function is at "the heart of representative government" and therefore all persons employed by the institutions performing that function "participate directly in the formulation, execution, or review of broad public policy . . . ." Sugarman v. Dougall supra, 413 U.S., at 647, 93 S.Ct., at 2850. In my judgment, to state the premise is to refute it. Respect for the law enforcement profession and its essential function, like respect for the military, should not cause us to lose sight of the fact that in our representative democracy neither the constabulary nor the military is vested with broad policymaking responsibility. Instead, each implements the basic policies formulated directly or indirectly by the citizenry. Under the standards announced in Sugarman, therefore, a blanket exclusion of aliens from this particular governmental institution is especially inappropriate.
44
The Court's misapprehension of the role of the institutionalized police function in a democratic society obfuscates the true significance of the distinction between citizenship and alienage. The privilege of participating in the formulation of broad public policy—a privilege largely denied to the institutions exercising the police function in our society—is the essence of individual citizenship. It is this privilege which gives dramatic meaning to the naturalization ceremony.4 The transition from alienage to citizenship is a fundamental change in the status of a person. This change is qualitatively different from any incremental increase in economic benefits that may accrue to holders of citizenship papers. The new citizen's right to vote and to participate in the democratic decisionmaking process is the honorable prerogative which no alien has a constitutional right to enjoy.
45
In final analysis, therefore, our society is governed by its citizens. But it is a government of and for all persons subject to its jurisdiction, and the Constitution commands their equal treatment. Although a State may deny the alien the right to participate in the making of policy, it may not deny him equal access to employment opportunities without a good and relevant reason. Sugarman plainly teaches us that the burgeoning public employment market cannot be totally foreclosed to aliens. Since the police officer is not a policymaker in this country, the total exclusion of aliens from the police force must fall.
46
Even if the Court rejects this analysis, it should not uphold a statutory discrimination against aliens, as a class, without expressly identifying the group characteristic that justifies the discrimination. If the unarticulated characteristic is concern about possible disloyalty, it must equally disqualify aliens from the practice of law; yet the Court does not question the continuing vitality of its decision in Griffiths. Or if that characteristic is the fact that aliens do not participate in our democratic decisionmaking process, it is irrelevant to eligibility for this category of public service. If there is no group characteristic that explains the discrimination, one can only conclude that it is without any justification that has not already been rejected by the Court.5
47
Because the Court's unique decision fails either to apply or to reject established rules of law, and for the reasons stated by Mr. Justice MARSHALL, I respectfully dissent.
1
We recognize that New York's statute may effectively prevent some class members from ever becoming troopers since state law limits eligibility for these positions to those between the ages of 21 and 29 years. N.Y.Exec. Law § 215(3) (McKinney 1972).
2
One indication of this attitude is Congress' determination to make it relatively easy for immigrants to become naturalized citizens. See 8 U.S.C. § 1427 (1976 ed.).
3
The alien's status is, at least for a time, beyond his control since Congress has imposed durational residency requirements for the attainment of citizenship. Federal law generally requires an alien to lawfully reside in this country for five years as a prerequisite to applying for naturalization. 8 U.S.C. § 1427(a) (1976 ed.).
4
In Mauclet, for example, New York State policy reflected a legislative judgment that higher education was " 'no longer . . . a luxury; it is a necessity for strength, fulfillment and survival.' " 432 U.S., at 8 n. 9, 97 S.Ct., at 2125.
5
This is not to say, of course, that a State may accomplish this end with a citizenship restriction that "sweeps indiscriminately," Dougall, 413 U.S., at 643, 93 S.Ct., at 2848, without regard to the differences in the positions involved.
6
See ABA Project on Standards for Criminal Justice, The Urban Police Function 119 (App. Draft 1973); National Advisory Commission on Criminal Justice Standards and Goals, Police 22-23 (1973); President's Commission on Law Enforcement and Administration of Justice, The Challenge of Crime in a Free Society 10 (1967).
7
After the event, some abuses of power may be subject to remedies by one showing injury. See Bivens v. Six Unknown Fed. Narcotics Agents, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971). And conclusive evidence of criminal conduct may be kept from the knowledge of a jury because of police error or misconduct.
8
Twenty-four States besides New York specifically require United States citizenship as a prerequisite for becoming a member of a statewide law enforcement agency: see Ark.Stat.Ann. § 42-406 (1964); Cal.Govt.Code Ann. § 1031 (West Supp. 1976); Fla.Stat.Ann. § 943.13(2) (West Supp. 1977); Ga.Code § 92A-214 (Supp. 1977); Ill.Rev.Stat., ch. 121, § 307.9 (1975); Ind.Rules & Regs., Tit. 10, Art. 1, ch. 1 § 4-7 (1976); Iowa Code § 80.15 (1977); Kan.Stat.Ann. § 74-2113(c) (Supp. 1976); Ky.Rev.Stat. § 16.040(2)(c) (1971); Mich.Comp.Laws § 28.4 (1967); Miss.Code Ann. § 45-3-9 (Supp. 1977); Mo.Rev.Stat. § 43.060 (1969); Mont.Rev.Codes Ann. § 31-105(3)(a)(v) (Supp. 1977); Nev.Rev.Stat. § 281.060(1) (1975); N.H.Rev.Stat.Ann. § 106-B:20 (Supp. 1975); N.J.Stat.Ann. § 53:1-9 (West Supp. 1977); N.M.Stat.Ann. § 39-2-6 (1972); N.D.Cent.Code § 39-03-04(4) (Supp. 1977); Ore.Rev.Stat. § 181.260(1)(a) (1977); Pa.Stat.Ann., Tit. 71, § 1193 (Purdon 1962); R.I.Gen.Laws § 42-28-10 (1970); S.D.Comp.Laws Ann. § 3-7-9 and § 3-1-4 (1974); Tex.Rev.Civ.Stat.Ann., Art. 4413(9)(2) (Vernon 1976); Utah Code Ann. § 27-11-11 (1976). Oklahoma requires its officers to be citizens of the State. See Okla.Stat., Tit. 47, § 2-105(a) (Supp. 1976). Nine other States require American citizenship as part of a general requirement applicable to all types of state officers or employees: see Ala.Code, Tit. 36, § 2-1(a)(1) (1977); Ariz.Rev.Stat.Ann. § 38-201 (1974); Haw.Rev.Stat. § 78-1 (1976); Idaho Code § 59-101 (1976) and Idaho Const., Art. 6, § 2; Me.Rev.Stat.Ann., Tit. 5, § 556 (Supp. 1977); Mass.Gen.Laws Ann., ch. 31, § 12 (West Supp. 1977); Ohio Rev.Code Ann. § 124.22 (1978); Tenn.Code Ann. § 8-1801 (Supp. 1977); Vt. Stat.Ann., Tit. 3, § 262 (1972); W.Va.Const., Art. 4, § 4.
9
Police powers in many countries are exercised in ways that we would find intolerable and indeed violative of constitutional rights. To take only one example, a large number of nations do not share our belief in the freedom of movement and travel, requiring persons to carry identification cards at all times. This, inter alia, affords a rational basis for States to require that those entrusted with the execution of the laws be individuals who, even if not native Americans, have indicated acceptance and allegiance to our Constitution by becoming citizens.
10
Cf. McCarthy v. Philadelphia Civil Service Comm'n, 424 U.S. 645, 96 S.Ct. 1154, 47 L.Ed.2d 366 (1976); Detroit Police Officers Assn. v. Detroit, 385 Mich. 519, 190 N.W.2d 97 (1971), dismissed for want of substantial federal question, 405 U.S. 950, 92 S.Ct. 1173, 31 L.Ed.2d 227 (1972).
*
One of the appellees in Nyquist v. Mauclet, 432 U.S. 1, 97 S.Ct. 2120, 53 L.Ed.2d 63 (1977), listed a succession of New York statutes requiring citizenship, or a declaration of intent to become a citizen, for no fewer than 37 occupations. Brief for Appellee Mauclet, O.T. 1976, No. 76-208, pp. 19-22, nn. 8-44, inclusive. Some of the statutes have been legislatively repealed or modified, or judicially invalidated. Others, apparently, are still in effect; among them are those relating to the occupations of inspector, certified shorthand reporter, funeral director, masseur, physical therapist, and animal health technician.
1
In Sugarman, the Court indicated that, if the State were to exclude aliens from these positions, the exclusion would be scrutinized under a standard less demanding than that normally accorded classifications involving a " 'discrete and insular' minority." 413 U.S., at 642, 93 S.Ct., at 2850. The Court did not explain why the level of scrutiny should vary with the nature of the job from which aliens are being excluded, and the focus of this part of the opinion was on the State's interest in preserving " 'the basic conception of a political community.' " Ibid., quoting Dunn v. Blumstein, 405 U.S. 330, 344, 92 S.Ct. 995, 1004, 31 L.Ed.2d 274 (1972); see 413 U.S., at 647-648, 93 S.Ct., at 2850-2851. Sugarman may thus be viewed as defining the circumstances under which laws excluding aliens from state jobs would further a compelling state interest, rather than as defining the circumstances under which lesser scrutiny is applicable. Regardless of which approach is followed, however, the question in this case remains the same: Is the job of state trooper a position involving direct participation "in the formulation, execution, or review of broad public policy"?
2
If the state exclusion here were limited to the job of Superintendent of the State Police, a different case would be presented to the extent that this official executes broad public policy in deciding how to deploy officers and in formulating rules governing police conduct.
3
This view of the differences between those who apply policy and those with policymaking responsibilities was rejected by Mr. Justice REHNQUIST in his lone dissenting opinion in Sugarman. His position was that " 'low level' civil servants . . . who apply facts to individual cases are as much 'governors' as those who write the laws or regulations the 'low-level' administrator must 'apply.' " 413 U.S., at 661, 93 S.Ct., at 2867. The eight-Justice Sugarman majority, in holding as it did, necessarily took the opposite position: that those "who apply facts to individual cases" do not have responsibility for broad policy execution that is in any way comparable to the responsibility exercised by "those who write the laws or regulations."
4
See United States v. Rosse, 418 F.2d 38, 39-40 (C.A.2 1969); United States v. Viale, 312 F.2d 595, 599, 600 (C.A.2 1963). Although many of the cases discussing the right of a private individual to make arrests and searches refer to a "citizen" taking the action, see United States v. Swarovski, 557 F.2d 40 (C.A.2 1977), cert. denied, 434 U.S. 1045, 98 S.Ct. 889, 54 L.Ed.2d 796 (1978); United States v. Rosse, supra, at 39; United States v. Viale, supra, it is clear from the context and from the plain language of the statutory provision that the right to arrest is not limited to citizens but applies to "any person."
5
One other justification for the statute was proffered by the appellee, see App. D-30 (affidavit of Superintendent of State Police), and accepted by the court below:
"The state quite rightly observes that conflicts of allegiance would be most glaring with respect to the alien's duty as a state policeman to make arrests of violators of the federal immigration laws, to participate in the Governor's Detail which provides protection for the Governor and visiting foreign dignitaries, to conduct investigations into matters having to do with government security, and to provide security at events involving foreign visitors such as the 1980 Winter Olympics to be held in Lake Placid, New York." 419 F.Supp. 889, 898 (S.D.N.Y.1976).
Not surprisingly, the appellee does not rely on this argument in his brief here, and the Court does not mention it. The suggestion that alien troopers would refuse to enforce the law against other aliens is highly offensive. This rationale would justify the State's refusal to hire members of any group on the basis that the individuals could not be trusted to faithfully enforce the law against other members of their race, nationality, or sex. I would have thought that the day had long since passed when a court would accept such a justification for exclusion of a group from public employment.
1
It is worth reiterating that "one need not be a citizen in order to take in good conscience an oath to support the Constitution. See In re Griffiths, 413 U.S., at 726 n. 18, 93 S.Ct. 2851." Hampton v. Mow Sun Wong, 426 U.S. 88, 111 n.43, 96 S.Ct. 1895, 1909, 48 L.Ed.2d 495.
2
"In its historical context, the assumption that only citizens would be employed in the federal service is easily understood. The new system of merit appointment, based on competitive examination, was replacing a patronage system in which appointment had often been treated as a method of rewarding support at the polls; since such rewards were presumably reserved for voters (or members of their families) who would necessarily be citizens, citizenship must have characterized most, if not all, federal employees at that time. The assumption that such a requirement would survive the enactment of the new statute is by no means equivalent to a considered judgment that it should do so." Id., at 107, 96 S.Ct., at 1907.
3
"A second interest advanced in support of patronage is the need for political loyalty of employees, not to the end that effectiveness and efficiency be insured, but to the end that representative government not be undercut by tactics obstructing the implementation of policies of the new administration, policies presumably sanctioned by the electorate. The justification is not without force, but is nevertheless inadequate to validate patronage wholesale. Limiting patronage dismissals to policymaking positions is sufficient to achieve this governmental end." Elrod v. Burns, 427 U.S., at 367, 96 S.Ct., at 2687.
4
As the Court eloquently points out:
"The act of becoming a citizen is more than a ritual with no content beyond the fanfare of ceremony. A new citizen has become a member of a Nation, part of a people distinct from others. Cf. Worcester v. Georgia, 6 Pet. 515, 559, 8 L.Ed. 483 (1832). The individual, at that point, belongs to the polity and is entitled to participate in the processes of democratic decisionmaking. Accordingly, we have recognized 'a State's historical power to exclude aliens from participation in its democratic political institutions.' Dougall, supra, 413 U.S. at 648, 93 S.Ct. at 2850, as part of the sovereign's obligation 'to preserve the basic conception of a political community.' 413 U.S., at 647, 93 S.Ct., at 2125." Ante, at 295-296.
5
The Court has squarely held that a State may not treat employment as a scarce resource to be reserved for its own citizens. Sugarman v. Dougall, 413 U.S. 634, 641-645, 93 S.Ct. 2842, 2847-2849, 37 L.Ed.2d 853. Nor may a State impose special burdens on aliens to pro ide them with an incentive to become naturalized citizens. Nyquist v. Mauclet, 432 U.S. 1, 9-11, 97 S.Ct. 2120, 2126-2127, 53 L.Ed.2d 63. For it is the Federal Government that exercises plenary control over naturalization and immigration. Hampton v. Mow Sun Wong, 426 U.S., at 100-101, 96 S.Ct., at 1904. The Court's understanding that "most States expressly confine the employment of police officers to citizens," ante, at 299, is not persuasive. Most of the statutes cited to support that understanding were enacted before the Court had decided Sugarman. Some of the cited statutes are patently invalid as a result of Sugarman, and there is no evidence that most of the States referred to by the Court have decided to continue enforcement of their citizenship requirement for police officers after deliberate consideration of Sugarman's teaching that only policymaking officials would be unaffected by the holding.
| 12
|
435 U.S. 381
98 S.Ct. 1117
55 L.Ed.2d 357
BANKERS TRUST COMPANY, Petitioner,v.Samuel MALLIS and Franklyn Kupferman.
No. 76-1359.
March 28, 1978.
Rehearing Denied May 15, 1978.
See 436 U.S. 915, 98 S.Ct. 2259.
PER CURIAM.
1
Respondents sued petitioner Bankers Trust Co. under § 10(b) of the Securities Exchange Act of 1934, 48 Stat. 891, 15 U.S.C. § 78j(b) (1976 ed.), for allegedly fraudulent statements. The District Court for the Southern District of New York dismissed the action on the ground that the fraud alleged had not occurred "in connection with the purchase or sale" of a security, as required by § 10(b). Mallis v. Federal Deposit Ins. Corp., 407 F.Supp. 7 (1975). The Court of Appeals for the Second Circuit reversed, holding that respondents were "purchasers [of securities] by virtue of their acceptance of [a] pledge" of stock and that petitioner was "a seller by virtue of its release of [a] pledge." Mallis v. Federal Deposit Ins. Corp., 568 F.2d 824, 830 (1977). We granted certiorari to consider the correctness of these rulings of the Court of Appeals. 431 U.S. 928, 97 S.Ct. 2630, 53 L.Ed.2d 243 (1977).
2
We find ourselves initially confronted, however, by a difficult question of federal appellate jurisdiction. As the Court of Appeals noted in its opinion, a search of the District Court record fails to uncover "any document that looks like a judgment." 568 F.2d, at 827 n. 4. Because both the parties and the District Court "proceeded on the assumption that there was an adjudication of dismissal," ibid.,1 the Court of Appeals felt free to consider the merits of the appeal. The Court of Appeals action, however, conflicts with the decisions of other Courts of Appeals concluding that a judgment set forth on a "separate document" is a prerequisite to appellate jurisdiction.2 We conclude that the Court of Appeals for the Second Circuit was correct in deciding that it had jurisdiction in this case despite the absence of a separate judgment.
3
Appellate jurisdiction was invoked under 28 U.S.C. § 1291, which provides that the "courts of appeals shall have jurisdiction of appeals from all final decisions of the district courts of the United States." The issue posed is whether a decision of a district court can be a "final decision" for purposes of § 1291 if not set forth on a document separate from the opinion. The issue arises because of Fed.Rule Civ.Proc. 58, which reads in part:
4
"Every judgment shall be set forth on a separate document. A judgment is effective only when so set forth and when entered as provided in Rule 79(a)."3
5
We assume, without deciding, that the requirements for an effective judgment set forth in the Federal Rules of Civil Procedure must generally be satisfied before § 1291 jurisdiction may be invoked.4 We nonetheless conclude that it could not have been intended that the separate-document requirement of Rule 58 be such a categorical imperative that the parties are not free to waive it.
6
The sole purpose of the separate-document requirement, which was added to Rule 58 in 1963, was to clarify when the time for appeal under 28 U.S.C. § 2107 begins to run.5 According to the Advisory Committee that drafted the 1963 amendment:
7
"Hitherto some difficulty has arisen, chiefly where the court has written an opinion or memorandum containing some apparently directive or dispositive words, e. g., 'the plaintiff's motion [for summary judgment] is granted,' see United States v. F. & M. Schaefer Brewing Co., 356 U.S. 227, 229, 78 S.Ct. 674, 2 L.Ed.2d 721 (1958). Clerks on occasion have viewed these opinions or memoranda as being in themselves a sufficient basis for entering judgment in the civil docket as provided by Rule 79(a). However, where the opinion or memorandum has not contained all the elements of a judgment, or where the judge has later signed a formal judgment, it has become a matter of doubt whether the purported entry of a judgment was effective, starting the time running for post-v rdict motions and for the purpose of appeal. . . .
8
"The amended rule eliminates these uncertainties by requiring that there be a judgment set out on a separate document—distinct from any opinion or memorandum—which provides the basis for the entry of judgment." 28 U.S.C.App., p. 7824.
9
The separate-document requirement was thus intended to avoid the inequities that were inherent when a party appealed from a document or docket entry that appeared to be a final judgment of the district court only to have the appellate court announce later that an earlier document or entry had been the judgment and dismiss the appeal as untimely. The 1963 amendment to Rule 58 made clear that a party need not file a notice of appeal until a separate judgment has been filed and entered. See United States v. Indrelunas, 411 U.S. 216, 220-222, 93 S.Ct. 1562, 1564-1565, 36 L.Ed.2d 202 (1973). Certainty as to timeliness, however, is not advanced by holding that appellate jurisdiction does not exist absent a separate judgment. If, by error, a separate judgment is not filed before a party appeals, nothing but delay would flow from requiring the court of appeals to dismiss the appeal. Upon dismissal, the district court would simply file and enter the separate judgment, from which a timely appeal would then be taken. Wheels would spin for no practical purpose.6 In United States v. Indrelunas, we recognized that the separate-document rule must be "mechanically applied" in determining whether an appeal is timely. Id., at 221-222, 93 S.Ct., at 1564-1565.7 Technical application of the separate-judgment requirement is necessary in that context to avoid the uncertainties that once plagued the determination of when an appeal must be brought. Cf. United States v. F. & M. Schaefer Brewing Co., 356 U.S. 227, 78 S.Ct. 674, 2 L.Ed.2d 721 (1958). The need for certainty as to the timeliness of an appeal, however, should not prevent the parties from waiving the separate-judgment requirement where one has accidentally not been entered. As Professor Moore notes, if the only obstacle to appellate review is the failure of the District Court to set forth its judgment on a separate document, "there would appear to be no point in obliging the appellant to undergo the formality of obtaining a formal judgment." 9 J. Moore, Federal Practice ¶ 110.08[2], p. 120 n. 7 (1970). "[I]t must be remembered that the rule is designed to simplify and make certain the matter of appealability. It is not designed as a trap for the inexperienced. . . . The rule should be interpreted to prevent loss of the right of appeal, not to facilitate loss." Id., at 119-120.
10
The Federal Rules of Civil Procedure are to be "construed to secure the just, speedy, and inexpensive determination of every action." In Foman v. Davis, 371 U.S. 178, 83 S.Ct. 227, 9 L.Ed.2d 222 (1962), this Court was asked to apply Rule 73 which, as then written, provided that an appeal was to be taken "by filing with the District Court a notice of appeal," which notice "shall designate the judgment or part thereof appealed from." Under Rule 73 it was clear that the filing of a notice of appeal was "jurisdictional," and the contents of the notice of appeal were prescribed in the Rule. This Court nonetheless held in Foman that a notice of appeal from a denial of motions to vacate a judgment and to amend the complaint was, in view of an earlier and premature notice of appeal, a notice of appeal from the original judgment.
11
"The defect in the second notice of appeal did not mislead or prejudice the respondent. With both notices of appeal before it (even granting the asserted ineffectiveness of the first) the Court of Appeals should have treated the appeal from the denial of the motions as an effective, although inept, attempt to appeal from the judgment sought to be vacated." 371 U.S., at 181, 83 S.Ct., at 229.
12
The same principles of commonsense interpretation that led the Court in Foman to conclude that the technical requirements for a notice of appeal were not mandatory where the notice "did not mislead or prejudice" the appellee demonstrate that parties to an appeal may waive the separate-judgment requirement of Rule 58. "It is too late in the day and entirely contrary to the spirit of the Federal Rules of Civil Procedure for decisions on the merits to be avoided on the basis of such mere technicalities." 371 U.S., at 181, 83 S.Ct., at 230.
13
Here, the District Court clearly evidenced its intent that the opinion and order from which an appeal was taken would represent the final decision in the case. A judgment of dismissal was recorded in the clerk's docket. And petitioner did not object to the taking of the appeal in the absence of a separate judgment. Under these circumstances, the parties should be deemed to have waived the separate-judgment requirement of Rule 58, and the Court of Appeals properly assumed appellate jurisdiction under § 1291.
14
Although we conclude that the Court of Appeals did have appellate jurisdiction to pass on the merits of this case, we do not reach them. At oral argument, counsel for respondents took the position that "the mere release of a pledge is [not] a sale." Tr. of Oral Arg. 32. Counsel urged that the judgment of the Court of Appeals be affirmed on a theory which differed from the reasoning of the Court of Appeals in reversing the District Court. Because of the change in the posture of the case between the time of the decision of the Court of Appeals and its presentation to us for decision, we dismiss the writ of certiorari as having been improvidently granted.
15
Dismissed.
16
Mr. Justice BLACKMUN took no part in the consideration or decision of this case.
1
Respondents appealed from a combined opinion and order of the District Court dated September 30, 1975. In the relatively lengthy opinion, the District Court granted petitioner's motion to dismiss the claim for failure to state a federal claim upon which relief could be granted and then concluded: "Complaint dismissed in its entirety. So ORDERED." On the same day, an entry was made on the District Court docket reading, "Complaint dismissed in its entirety. So Ordered. Pollack, J. (mn)."
2
See, e. g., Lyons v. Davoren, 402 F.2d 890 (CA1 1968); Sassoon v. United States, 549 F.2d 983 (CA5 1977); Richland Trust Co. v. Federal Ins. Co., 480 F.2d 1212 (CA6 1973); Home Fed. Sav. & Loan v. Republic Ins. Co., 405 F.2d 18 (CA7 1968); Baity v. Ciccone, 507 F.2d 717 (CA8 1974); Baker v. Southern Pac. Transp., 542 F.2d 1123 (CA9 1976). But see W. G. Cosby Transfer & Storage Corp. v. Froehlke, 480 F.2d 498, 501 n. 4 (CA4 1973).
3
Rule 58 reads in its entirety:
"Subject to the provisions of Rule 54(b): (1) upon a general verdict of a jury, or upon a decision by the court that a party shall recover only a sum certain or costs or that all relief shall be denied, the clerk, unless the court otherwise orders, shall forthwith prepare, sign, and enter the judgment without awaiting any direction by the court; (2) upon a decision by the court granting other relief, or upon a special verdict or a general verdict accompanied by answers to interrogatories, the court shall promptly approve the form of the judgment, and the clerk shall thereupon enter it. Every judgment shall be set forth on a separate document. A judgment is effective only when so set forth and when entered as provided in Rule 79(a). Entry of the judgment shall not be delayed for the taxing of costs. Attorneys shall not submit forms of judgment except upon direction of the court, and these directions shall not be given as a matter of course."
4
A "judgment" for purposes of the Federal Rules of Civil Procedure would appear to be equivalent to a "final decision" as that term is used in 28 U.S.C. § 1291. Federal Rule Civ.Proc. 54(a), for example, provides that " '[j]udgment' as used in these rules includes a decree and any order from which an appeal lies." See also Ex parte Tiffany, 252 U.S. 32, 36, 40 S.Ct. 239, 240, 64 L.Ed. 443 (1920); 6A J. Moore, Federal Practice ¶ 58.02, pp. 51-52 (1972). Because Rule 58 provides that a "judgment is effective only . . . when entered as provided in Rule 79(a)," it is arguable that a decision must be entered on the civil docket before it may constitute a "final decision" for purposes of § 1291. Unlike the separate-document requirement, however, the keeping of a civil docket pursuant to Rule 79 fulfills a public recordkeeping function over and above the giving of notice to the losing party that a final decision has been entered against it. A judgment of dismissal was entered in this case below. See n. 1, supra.
5
Section 2107 provides that "[e]xcept as otherwise provided in this section, no appeal shall bring any judgment, order or decree in an action, suit or proceeding of a civil nature before a court of appeals for review unless notice of appeal is filed, within thirty days after the entry of such judgment, order or decree." See also Fed.Rule App.Proc. 4(a).
6
Nor would strict compliance with the separate-judgment requirement aid in the court of appeals' determination of whether the decision of the District Court was "final" for purposes of § 1291. Even if a separate judgment is filed, the courts of appeals must still determine whether the district court intended the judgment to represent the final decision in the case. Cf. United States v. Hark, 320 U.S. 531, 64 S.Ct. 359, 88 L.Ed. 290 (1944).
7
While our decision in Indrelunas is consistent with the result we reach today, the beginning paragraph of Indrelunas could be read as holding that a separate judgment must be filed in compliance with Rule 58 before a decision is "final" for purposes of § 1291. In Indrelunas, we noted that since both parties conceded "that the jurisdiction of the Court of Appeals was based on the provisions of 28 U.S.C. § 1291, making final decisions of the district courts appealable, the correctness of the Court of Appeals' decision depends on whether the District Court's judgment of February 25, 1971, was a final decision. That question, in turn, depends on whether actions taken in the District Court previous to the February date amounted to the 'entry of judgment' as that term is used in Fed.Rule Civ.Proc. 58." 411 U.S., at 216, 93 S.Ct., at 1562. o the extent the above passage is inconsistent with our decision today, we disavow it.
| 89
|
435 U.S. 371
98 S.Ct. 1112
55 L.Ed.2d 349
UNITED STATES, Petitioner,v.Donald Lavern CULBERT.
No. 77-142.
Argued Jan. 11, 1978.
Decided March 28, 1978.
Syllabus
Respondent was convicted under the Hobbs Act, 18 U.S.C. § 1951, of attempting to obtain money from a federally insured bank by means of threats of violence to its president. The Court of Appeals reversed, holding that the Government had failed to prove that respondent's conduct constituted "racketeering," which in its view was a necessary element of a Hobbs Act offense. Held: The plain language and legislative history of the statute make clear that Congress did not intend to limit the statute's scope by reference to an undefined category of conduct termed "racketeering," but rather that Congress intended to reach all conduct within the express terms of the statute. Pp. 373-380.
548 F.2d 1355, reversed.
Sara S. Beale, Ann Arbor, Mich., for petitioner.
James F. Hewitt, San Francisco, for respondent.
Mr. Justice MARSHALL delivered the opinion of the Court.
1
Respondent was convicted of violating the Hobbs Act, 18 U.S.C. § 1951 (1976 ed.), which provides in relevant part:
2
"Whoever in any way or degree obstructs, delays, or affects commerce or the movement of any article or commodity in 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." § 1951 (a).
3
The question in this case is whether the Government not only had to establish that respondent violated the express terms of the Act, but also had to prove that his conduct constituted "racketeering."
4
The evidence at respondent's jury trial showed that he and an accomplice attempted to obtain $100,000 from a federally insured bank by means of threats of physical violence made to the bank's president. The United States Court of Appeals for the Ninth Circuit, with one judge dissenting, reversed the Hobbs Act conviction,1 holding that, " 'although an activity may be within the literal language of the Hobbs Act, it must constitute 'racketeering" to be within the perimeters of the Act.' " 548 F.2d 1355, 1357, quoting United States v. Yokley, 542 F.2d 300, 304 (CA6 1976). We granted certiorari, 434 U.S. 816, 98 S.Ct. 53, 54 L.Ed.2d 71 (1977),2 and we now reverse.
5
* Nothing on the face of the statute suggests a congressional intent to limit its coverage to persons who have engaged in "racketeering." To the contrary, the statutory language sweeps within it all persons who have "in any way or degree . . . affect[ed] commerce . . . by robbery or extortion." 18 U.S.C. § 1951(a) (1976 ed.). These words do not lend themselves to restrictive interpretation; as we have recognized, they "manifest . . . a purpose to use all the constitutional power Congress has to punish interference with interstate commerce by extortion, robbery or physical violence," Stirone v. United States, 361 U.S. 212, 215, 80 S.Ct. 270, 272, 4 L.Ed. 252 (1960). The statute, moreover, carefully defines its key terms, such as "robbery," "extortion," and "commerce."3 Hence the absence of any reference to "racketeering"—much less any definition of the word—is strong evidence that Congress did not intend to make "racketeering" an element of a Hobbs Act violation.
6
Respondent nevertheless argues that we should read a racketeering requirement into the statute. To do so, however, might create serious constitutional problems, in view of the absence of any definition of racketeering in the statute. Neither respondent nor either of the two Courts of Appeals that have read this requirement into the statute has even attempted to provide a definition. Without such a definition, the statute might well violate "the first essential of due process of law": It would forbid "the doing of an act in terms so vague that [persons] of common intelligence [would] necessarily [have to] guess at its meaning and differ as to its application." Connally v. General Constr. Co., 269 U.S. 385, 391, 46 S.Ct. 126, 127, 70 L.Ed. 322 (1926); see, e. g., Hynes v. Mayor of Oradell, 425 U.S. 610, 620, 96 S.Ct. 1755, 1760, 48 L.Ed.2d 243 (1976). But we need not concern ourselves with these potential constitutional difficulties because a construction that avoids them is virtually compelled by the language and structure of the statute.
II
A.
7
Nothing in the legislative history supports the interpretation of the statute adopted by the Court of Appeals.4 The predecessor to the Hobbs Act, the Anti-Racketeering Act of 1934, ch. 569, 48 Stat. 979, was enacted, as its name implies, at a time when Congress was very concerned about racketeering activities. Despite these concer s, however, the Act, which was written in broad language similar to the language of the Hobbs Act, nowhere mentioned racketeering.5 This absence of the term is not surprising, since the principal congressional committee working on the Act, known as the Copeland Committee, found that the term and the associated word "racket" had "for some time been used loosely to designate every conceivable sort of practice or activity which was either questionable, unmoral, fraudulent, or even disliked, whether criminal or not." S.Rep.No.1189, 75th Cong., 1st Sess., 2 (1937).6
8
The Copeland Committee proceeded to develop its own "working definition" of racketeering, but it did not incorporate this definition into the Act. Ibid. Critical to the definition was the existence of "an organized conspiracy to commit the crimes of extortion or coercion." Id., at 3. Yet the Act itself did not require a conspiracy to engage in unlawful conduct, and the Senate Judiciary Committee Report expressly stated that a violation of the Act would be established " 'whether the restraints [of commerce] are in form of conspiracies or not,' " S.Rep.No.532, 73d Cong., 2d Sess., 2 (1934), quoting Justice Department memorandum; see H.R.Rep.No.1833, 73d Cong., 2d Sess., 2 (1934). Moreover, the Act included a separate prohibition on conspiracies, § 2(d), 48 Stat. 980; see n. 5, supra, that would have been superfluous if proof of racketeering—as defined by the Copeland Committee to require conspiracy—were an integral element of the substantive offenses.7 There is nothing in the legislative history to dispell the conclusion compelled by these bservations. Congress simply did not intend to make racketeering a separate, unstated element of an Anti-Racketeering Act violation.
B
9
Given the absence of this intent in the Hobbs Act's predecessor, any requirement that racketeering be proved must be derived from the Hobbs Act itself or its legislative history. While the Hobbs Act was enacted to correct a perceived deficiency in the Anti-Racketeering Act, that deficiency had nothing to do with the element of racketeering. See United States v. Enmons, 410 U.S. 396, 401-404, 93 S.Ct. 1007, 1010-1011, 35 L.Ed.2d 379 (1973). Rather, it involved the latter Act's requirement that the proscribed "force, violence or coercion" lead to exaction of "valuable consideration" and its exclusion of wage payments from the definition of consideration. See n. 5, supra. In construing the wage-payments exclusion, this Court had held that the Act did not cover the actions of union truckdrivers who exacted money by threats or violence from out-of-town drivers in return for undesired and often unutilized services. United States v. Teamsters, 315 U.S. 521, 62 S.Ct. 642, 86 L.Ed. 1004 (1942). Shortly thereafter, several bills were introduced in Congress to alter this result. United States v. Enmons, supra, 410 U.S., at 402, and n. 8, 93 S.Ct. at 1010.
10
The bill that eventually became the Hobbs Act deleted the exception on which the Court had relied in Teamsters and substituted specific prohibitions against robbery and extortion for the Anti-Racketeering Act's language relating to the use of force or threats of force. The primary focus in the Hobbs Act debates was on whether the bill was designed as an attack on organized labor. Opponents of the bill argued that it would be used to prosecute strikers and interfere with labor unions. See, e. g., 91 Cong.Rec. 11848 (1945) (remarks of Rep. Lane); ibid. (remarks of Rep. Powell); id., at 11902 (remarks of Rep. Celler). The proponents of the bill steadfastly maintained that the purpose of the bill was to prohibit robbery and extortion perpetrated by anyone. See, e. g., id., at 11900 (remarks of Rep. Hancock); id., at 11904 (remarks of Rep. Gwynne); id., at 11912 (remarks of Rep. Hobbs); id., at 11914 (remarks of Rep. Russell). Although there were many references in the debates to "racketeers" and "racketeering," see, e. g., id., at 11906 (remarks of Rep. Robinson); id., at 11908 (remarks of Rep. Vursell); id., at 11910 (remarks of Rep. Andersen), none of the comments supports the conclusion that Congress did not intend to make punishable all conduct falling within the reach of the statutory language. To the contrary, the debates are fully consistent with the statement in the Report of the House Committee on the Judiciary that the purpose of the bill was "to prevent anyone from obstructing, delaying, or affecting commerce, or the movement of any article or commodity in commerce by robbery or extortion as defined in the bill." H.R.Rep.No.238, 79th Cong., 1st Sess., 9 (1945) (emphasis added); see also S.Rep.No.1516, 79th Cong., 2d Sess., 1 (1946).8
11
Indeed, many Congressmen praised the bill because it set out with more precision the conduct that was being made criminal. As Representative Hobbs noted, the words robbery and extortion "have been construed a thousand times by the courts. Everybody knows what they mean." 91 Cong.Rec. 11912 (1945). See also id., at 11906 (remarks of Rep. Robsion); id., at 11910 (remarks of Rep. Springer); id., at 11914 (remarks of Rep. Russell). In the wake of the Court's decision in Teamsters, moreover, a paramount congressional concern was to be clear about what conduct was prohibited:
12
"We are explicit. That language is too general, and we thought it better to make this bill explicit, and leave nothing to the imagination of the court." 91 Cong.Rec. 11904 (1945) (remarks of Rep. Hancock).
13
See id. at 11912 (remarks of Rep. Hobbs).
14
It is inconceivable that, at the same time Congress was so concerned about clearly defining the acts prohibited under the bill it intended to make proof of racketeering—a term not mentioned in the statute—a separate prerequisite to criminal liability under the Hobbs Act.9
III
15
We therefore conclude that respondent's position has no support in either the statute or its legislative history. Respondent also invokes, as did the court below, two maxims of statutory construction, but neither is applicable here. It is true 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 that, "unless Congress conveys its purpose clearly, it will not be deemed to have significantly changed the federal-state balance," United States v. Bass, 404 U.S. 336, 349, 92 S.Ct. 515, 523, 30 L.Ed.2d 488 (1971). But here Congress has conveyed its purpose clearly, and we decline to manufacture ambiguity where none exists. The two maxims only apply "when we are uncertain about the statute's meaning"; they are "not to be used 'in complete disregard of the purpose of the legislature.' " Scarborough v. United States, 431 U.S. 563, 577, 97 S.Ct. 1963, 1970, 52 L.Ed.2d 582 (1977), quoting United States v. Bramblett, 348 U.S. 503, 510, 75 S.Ct. 504, 508, 99 L.Ed. 594 (1955).
16
With regard to the concern about disturbing the federal-state balance, moreover, there is no question that Congress intended to define as a federal crime conduct that it knew was punishable under state law. The legislative debates are replete with statements that the conduct punishable under the Hobbs Act was already punishable under state robbery and extortion statutes. See, e. g., 91 Cong.Rec. 11848 (1945) (remarks of Rep. Powell); id., at 11900 (remarks of Rep. Hancock); id., at 11904 (remarks of Rep. Gwynne). Those who opposed the Act argued that it was a grave interference with the rights of the States. See, e. g., id., at 11903 (remarks of Rep. Welch); id., at 11913 (remarks of Rep. Resa). Congress apparently believed, however, that the States had not been effectively prosecuting robbery and extortion affecting interstate commerce and that the Federal Government had an obligation to do so. See, e. g., id., at 11911 (remarks of Rep. Jennings); id., at 11904, 11920 (remarks of Rep. G ynne).
17
Our examination of the statutory language and the legislative history of the Hobbs Act impels us to the conclusion that Congress intended to make criminal all conduct within the reach of the statutory language. We therefore decline the invitation to limit the statute's scope by reference to an undefined category of conduct termed "racketeering." The judgment of the Court of Appeals is, accordingly,
18
Reversed.
19
Mr. Justice BRENNAN took no part in the consideration or decision of this case.
1
Respondent was also convicted of attempted bank robbery, a violation of 18 U.S.C. § 2113(a) (1976 ed.). In the Court of Appeals, however, the Government confessed error on the ground that § 2113(a) is not violated unless the taking of the bank's money is "from the person or presence of another." Since respondent's plan involved the delivery of the money by the bank president to a parking lot and did not contemplate any entry by respondent into the bank or any taking from the person or presence of the president, the Government conceded that the bank robbery conviction should be vacated. 548 F.2d 1355, 1356-1357.
In its brief in this Court, the Government notes that "the United States Attorney's concession was not approved by the Solicitor General and does not represent the position of the Department of Justice on this question." Brief for United States 33 n. 19. We express no view on the validity of the United States Attorney's interpretation of § 2113(a).
2
There is a conflict in the Circuits on this issue. Compare United States v. Culbert, 548 F.2d 1355 (CA9 1977) (case below), and United States v. Yokley, 542 F.2d 300 (CA6 1976), with United States v. Frazier, 560 F.2d 884, 886 (CA8 1977), cert. pending, No. 77-847; United States v.
Warledo, 557 F.2d 721, 730 (CA10 1977); and United States v. Brecht, 540 F.2d 45, 52 (CA2 1976).
3
Title 18 U.S.C. § 1951(b) (1976 ed.) provides:
"As used in this section—
"(1) The term 'robbery' means the unlawful taking or obtaining of personal property from the person or in the presence of another, against his will, by means of actual or threatened force, or violence, or fear of injury, immediate or future, to his person or property, or property in his custody or possession, or the person or property of a relative or member of his family or of anyone in his company at the time of the taking or obtaining.
"(2) The term 'extortion' means the obtaining of property from another, with his consent, induced by wrongful use of actual or threatened force, violence, or fear, or under color of official right.
"(3) The term 'commerce' means commerce within the District of Columbia, or any Territory or Possession of the United States; all commerce between any point in a State, Territory, Possession, or the District of Columbia and any point outside thereof; all commerce between points within the same State through any place outside such State; and all other commerce over which the United States has jurisdiction."
4
Although we find the statutory language to be clear, we have often stated that, "[w]hen aid to construction of the meaning of words, as used in the statute, is available, there certainly can be no 'rule of law' which forbids its use, however clear the words may appear on 'superficial examination.' " United States v. American Trucking Assns., Inc., 310 U.S. 534, 543-544, 60 S.Ct. 1059, 1064, 84 L.Ed. 1345 (1940) (footnotes omitted). See Train v. Colorado Public Interest Research Group, Inc., 426 U.S. 1, 10, 96 S.Ct. 1938, 1942, 48 L.Ed.2d 434 (1976); Cass v. United States, 417 U.S. 72, 77-79, 94 S.Ct. 2167, 2170-2171, 40 L.Ed.2d 668 (1974).
5
The Anti-Racketeering Act provided in pertinent part:
"Sec. 2. Any person who, in connection with or in relation to any act in any way or in any degree affecting trade or commerce or any article or commodity moving or about to move in trade or commerce—
"(a) Obtains or attempts to obtain, by the use of or attempt to use or threat to use force, violence, or coercion, the payment of money or other valuable considerations, or the purchase or rental of property or protective services, not including, however, the payment of wages by a bona-fide employer to a bona-fide employee: or
"(b) Obtains the property of another, with his consent, induced by wrongful use of force or fear, or under color of official right; or
"(c) Commits or threatens to commit an act of Physical violence or physical injury to a person or property in furtherance of a plan or purpose to violate sections (a) or (b); or
"(d) Conspires or acts concertedly with any other person or persons to commit any of the foregoing acts; shall, upon conviction thereof, be guilty of a felony and shall be punished by imprisonment from one to ten years or by a fine of $10,000, or both.
"Sec. 3. (a) As used in this Act the term 'wrongful' means in violation of the criminal laws of the United States or of any State or Territory.
"(b) The terms 'property', 'money', or 'valuable considerations' used herein shall not be deemed to include wages paid by a bona-fide employer to a bona-fide employee."
6
Although the cited report was issued in 1937, it was intended to provide "a complete picture" of the earlier work of the Copeland Committee. S.Rep.No.1189, 75th Cong., 1st Sess., 1 (1937).
7
The Hobbs Act also separately proscribes conspiracies. 18 U.S.C. § 1951 (a) (1976 ed.), quoted, supra, at 371-372.
8
There are other indications that Congress did not intend to make criminal liability under the Hobbs Act turn on proof of some additional element of "racketeering." One Congressman, in enumerating for his colleagues exactly what the Government would have to prove to establish an individual's liability under the bill, made no reference to "racketeering." 91 Cong.Rec. 11903 (1945) (remarks of Rep. Gwynne). Another emphasized that, with respect to a predecessor bill—one that "was substantially carried forward into the [Hobbs] Act," United States v. Enmons, 410 U.S. 396, 404-405, n. 14, 93 S.Ct. 1007, 1012, 35 L.Ed.2d 379 (1973) Congress was "trying to make a legal definition of racketeering" by proscribing specific onduct in the statute. 89 Cong.Rec. 3227 (1943) (remarks of Rep. Vorys).
9
We note that when Congress wanted to make racketeering an element of an offense, it knew how to do so. In the Organized Crime Control Act of 1970, Pub.L. 91-452, 84 Stat. 922, Congress not only made "racketeering activity" an element of a statutory offense, but it specifically defined the term for purposes of the statute. 18 U.S.C. § 1961(1) (1976 ed.). Moreover, the statute defines as "racketeering activity" any act which violates certain state laws as well as "any act which is indictable under . . . title 18, United States Code . . . section 1951"—the Hobbs Act. § 1961(1)(B).
| 01
|
435 U.S. 349
98 S.Ct. 1099
55 L.Ed.2d 331
Harold D. STUMP et al., Petitioners,v.Linda Kay SPARKMAN and Leo Sparkman.
No. 76-1750.
Argued Jan. 10, 1978.
Decided March 28, 1978.
Rehearing Denied June 5, 1978.
See 436 U.S. 951, 98 S.Ct. 2862.
Syllabus
A mother filed a petition in affidavit form in an Indiana Circuit Court, a court of general jurisdiction under an Indiana statute, for authority to have her "somewhat retarded" 15-year-old daughter (a respondent here) sterilized, and petitioner Circuit Judge approved the petition the same day in an ex parte proceeding without a hearing and without notice to the daughter or appointment of a guardian ad litem. The operation was performed shortly thereafter, the daughter having been told that she was to have her appendix removed. About two years later she was married, and her inability to become pregnant led her to discover that she had been sterilized. As a result she and her husband (also a respondent here) filed suit in Federal District Court pursuant to 42 U.S.C. § 1983 against her mother, the mother's attorney, the Circuit Judge, the doctors who performed or assisted in the sterilization, and the hospital where it was performed, seeking damages for the alleged violation of her constitutional rights. Holding that the constitutional claims required a showing of state action and that the only state action alleged was the Circuit Judge's approval of the sterilization petition, the District Court held that no federal action would lie against any of the defendants because the Circuit Judge, the only state agent, was absolutely immune from suit under the doctrine of judicial immunity. The Court of Appeals reversed, holding that the "crucial issue" was whether the Circuit Judge acted within his jurisdiction, that he had not, that accordingly he was not immune from damages liability, and that in any event he had forfeited his immunity "because of his failure to comply with elementary principles of procedural due process." Held: The Indiana law vested in the Circuit Judge the power to entertain and act upon the petition for sterilization, and he is, therefore, immune from damages liability even if his approval of the petition was in error. Pp. 355-364.
(a) A judge will not be deprived of immunity because the action he took was in error, was done maliciously, or was in excess of his authority, but rather he will be subject to liability only when he has acted in the "clear absence of all jurisdiction," Bradley v. Fisher, 13 Wall. 335, 351, 20 L.Ed. 646. Pp. 355-357.
(b) Here there was not "clear absence of all jurisdiction" in the Circuit Court to consider the sterilization petition. That court had jurisdiction under the Indiana statute granting it broad general jurisdiction, it appearing that neither by statute nor by case law had such jurisdiction been circumscribed to foreclose consideration of the petition. Pp. 357-358.
(c) Because the Circuit Court is a court of general jurisdiction, neither the procedural errors the Circuit Judge may have committed nor the lack of a specific statute authorizing his approval of the petition in question rendered him liable in damages for the consequences of his actions. Pp. 358-360.
(d) The factors determining whether an act by a judge is "judicial" relate to the nature of the act itself (whether it is a function normally performed by a judge) and the expectation of the parties (whether they dealt with the judge in his judicial capacity), and here both of these elements indicate that the Circuit Judge's approval of the sterilization petition was a judicial act, even though he may have proceeded with informality. Pp. 360-363.
(e) Disagreement with the action taken by a judge does not justify depriving him of his immunity, and thus the fact that in this case tragic consequences ensued from the judge's action does not deprive him of his immunity; moreover, the fact that the issue before the judge is a controversial one, as here, is all the more reason that he should be able to act without fear of suit. Pp. 363-364.
552 F.2d 172, reversed and remanded.
George E. Fruechtenicht, Fort Wayne, Ind., for petitioners.
Richard H. Finley, Kendallville, Ind., for respondents.
Mr. Justice WHITE delivered the opinion of the Court.
1
This case requires us to consider the scope of a judge's immunity from damages liability when sued under 42 U.S.C. § 1983.
2
* The relevant facts underlying respondents' suit are not in dispute. On July 9, 1971, Ora Spitler McFarlin, the mother of respondent Linda Kay Spitler Sparkman, presented to Judge Harold D. Stump of the Circuit Court of DeKalb County, Ind., a document captioned "Petition To Have Tubal Ligation Performed On Minor and Indemnity Agreement." The document had been drafted by her attorney, a petitioner here. In this petition Mrs. McFarlin stated under oath that her daughter was 15 years of age and was "somewhat retarded," although she attended public school and had been promoted each year with her class. The petition further stated that Linda had been associating with "older youth or young men" and had stayed out overnight with them on several occasions. As a result of this behavior and Linda's mental capabilities, it was stated that it would be in the daughter's best interest if she underwent a tubal ligation in order "to prevent unfortunate circumstances . . . ." In the same document Mrs. McFarlin also undertook to indemnify and hold harmless Dr. John Hines, who was to perform the operation, and the DeKalb Memorial Hospital, where the operation was to take place, against all causes of action that might arise as a result of the performance of the tubal ligation.1
3
The petition was approved by Judge Stump on the same day. He affixed his signature as "Judge, DeKalb Circuit Court," to the statement that he did "hereby approve the above Petition by affidavit form on behalf of Ora Spitler McFarlin, to have Tubal Ligation performed upon her minor daughter, Linda Spitler, subject to said Ora Spitler McFarlin covenanting and agreeing to indemnify and keep indemnified Dr. John Hines and the DeKalb Memorial Hospital from any matters or causes of action arising therefrom."
4
On July 15, 1971, Linda Spitler entered the DeKalb Memorial Hospital, having been told that she was to have her appendix removed. The following day a tubal ligation was performed upon her. She was released several days later, unaware of the true nature of her surgery.
5
Approximately two years after the operation, Linda Spitler was married to respondent Leo Sparkman. Her inability to become pregnant led her to discover that she had been sterilized during the 1971 operation. As a result of this revelation, the Sparkmans filed suit in the United States District Court for the Northern District of Indiana against Mrs. McFarlin, her attorney, Judge Stump, the doctors who had performed and assisted in the tubal ligation, and the DeKalb Memorial Hospital. Respondents sought damages for the alleged violation of Linda Sparkman's constitutional rights;2 also asserted were pendent state claims for assault and battery, medical malpractice, and loss of potential fatherhood.
6
Ruling upon the defendants' various motions to dismiss the complaint, the District Court concluded that each of the constitutional claims asserted by respondents required a showing of state action and that the only state action alleged in the complaint was the approval by Judge Stump, acting as Circuit Court Judge, of the petition presented to him by Mrs. McFarlin. The Sparkmans sought to hold the private defendants liable on a theory that they had conspired with Judge Stump to bring about the allegedly unconstitutional acts. The District Court, however, held that no federal action would lie against any of the defendants because Judge Stump, the only state agent, was absolutely immune from suit under the doctrine of judicial immunity. The court stated that "whether or not Judge Stump's 'approval' of the petition may in retrospect appear to have been premised on an erroneous view of the law, Judge Stump surely had jurisdiction to consider the petition and to act thereon." Sparkman v. McFarlin, Civ. No. F 75-129 (ND Ind., May 13, 1976). Accordingly, under Bradley v. Fisher, 13 Wall. 335, 351, 20 L.Ed. 646 (1872), Judge Stump was entitled to judicial immunity.3
7
On appeal, the Court of Appeals for the Seventh Circuit reversed the judgment of the District Court,4 holding that the "crucial issue" was "whether Judge Stump acted within his jurisdiction" and concluding that he had not. 552 F.2d, at 174. He was accordingly not immune from damages liability under the controlling authorities. The Court of Appeals also held that the judge had forfeited his immunity "because of his failure to comply with elementary principles of procedural due process." Id., at 176.
8
We granted certiorari, 434 U.S. 815, 98 S.Ct. 51, 54 L.Ed.2d 70 (1977), to consider the correctness of this ruling. We reverse.
II
9
The governing principle of law is well established and is not questioned by the parties. As early as 1872, the Court recognized that it was "a general principle of the highest importance to the proper administration of justice that a judicial officer, in exercising the authority vested in him, [should] be free to act upon his own convictions, without apprehension of personal consequences to himself." Bradley v. Fisher, supra, at 347.5 For that reason the Court held that "judges of courts of superior or general jurisdiction are not liable to civil actions for their judicial acts, even when such acts are in excess of their jurisdiction, and are alleged to have been done maliciously or corruptly."6 13 Wall., at 351. Later we held that this doctrine of judicial immunity was applicable in suits under § 1 of the Civil Rights Act of 1871, 42 U.S.C. § 1983, for the legislative record gave no indication that Congress intended to abolish this long-established principle. Pierson v. Ray, 386 U.S. 547, 87 S.Ct. 1213, 18 L.Ed.2d 288 (1967).
10
The Court of Appeals correctly recognized that the necessary inquiry in determining whether a defendant judge is immune from suit is whether at the time he took the challenged action he had jurisdiction over the subject matter before him. Because "some of the most difficult and embarrassing questions which a judicial officer is called upon to consider and determine relate to his jurisdiction . . . ," Bradley, supra, at 352, the scope of the judge's jurisdiction must be construed broadly where the issue is the immunity of the judge. A judge will not be deprived of immunity because the action he took was in error, was done maliciously, or was in excess of his authority; rather, he will be subject to liability only when he has acted in the "clear absence of all jurisdiction."7 13 Wall., at 351.
11
We cannot agree that there was a "clear absence of all jurisdiction" in the DeKalb County Circuit Court to consider the petition presented by Mrs. McFarlin. As an Indiana Circuit Court Judge, Judge Stump had "original exclusive jurisdiction in all cases at law and in equity whatsoever . . . ," jurisdiction over the settlement of estates and over guardianships, appellate jurisdiction as conferred by law, and jurisdiction over "all other causes, matters and proceedings where exclusive jurisdiction thereof is not conferred by law upon some other court, board or officer." Ind.Code § 33-4-4-3 (1975).8 This is indeed a broad jurisdictional grant; yet the Court of Appeals concluded that Judge Stump did not have jurisdiction over the petition authorizing Linda Sparkman's sterilization.
12
In so doing, the Court of Appeals noted that the Indiana statutes provided for the sterilization of institutionalized persons under certain circumstances, see Ind.Code §§ 16-13-13-1 through 16-13-13-4 (1973), but otherwise contained no express authority for judicial approval of tubal ligations. It is true that the statutory grant of general jurisdiction to the Indiana circuit courts does not itemize types of cases those courts may hear and hence does not expressly mention sterilization petitions presented by the parents of a minor. But in our view, it is more significant that there was no Indiana statute and no case law in 1971 prohibiting a circuit court, a court of general jurisdiction, from considering a petition of the type presented to Judge Stump. The statutory authority for the sterilization of institutionalized persons in the custody of the State does not warrant the inference that a court of general jurisdiction has no power to act on a petition for sterilization of a minor in the custody of her parents, particularly where the parents have authority under the Indiana statutes to "consent to and contract for medical or hospital care or treatment of [the minor] including surgery." Ind.Code § 16-8-4-2 (1973). The District Court concluded that Judge Stump had jurisdiction under § 33-4-4-3 to entertain and act upon Mrs. McFarlin's petition. We agree with the District Court, it appearing that neither by statute nor by case law has the broad jurisdiction granted to the circuit courts of Indiana been circumscribed to foreclose consideration of a petition for authorization of a minor's sterilization.
13
The Court of Appeals also concluded that support for Judge Stump's actions could not be found in the common law of Indiana, relying in particular on the Indiana Court of Appeals' intervening decision in A. L. v. G. R. H., 163 Ind.App. 636, 325 N.E.2d 501 (1975). In that case the Indiana court held that a parent does not have a common-law right to have a minor child sterilized, even though the parent might "sincerely believe the child's adulthood would benefit therefrom." Id., at 638, 325 N.E.2d, at 502. The opinion, however, speaks only of the rights of the parents to consent to the sterilization of their child and does not question the jurisdiction of a circuit judge who is presented with such a petition from a parent. Although under that case a circuit judge would err as a matter of law if he were to approve a parent's petition seeking the sterilization of a child, the opinion in A. L. v. G. R. H. does not indicate that a circuit judge is without jurisdiction to entertain the petition. Indeed, the clear implication of the opinion is that, when presented with such a petition, the circuit judge should deny it on its merits rather than dismiss it for lack of jurisdiction.
14
Perhaps realizing the broad scope of Judge Stump's jurisdiction, the Court of Appeals stated that, even if the action taken by him was not foreclosed under the Indiana statutory scheme, it would still be "an illegitimate exercise of his common law power because of his failure to comply with elementary principles of procedural due process." 552 F.2d, at 176. This misconceives the doctrine of judicial immunity. A judge is absolutely immune from liability for his judicial acts even if his exercise of authority is flawed by the commission of grave procedural errors. The Court made this point clear in Bradley, 13 Wall., at 357, where it stated: "[T]his erroneous manner in which [the court's] jurisdiction was exercised, however it may have affected the validity of the act, did not make the act any less a judicial act; nor did it render the defendant liable to answer in damages for it at the suit of the plaintiff, as though the court had proceeded without having any jurisdiction whatever . . . ."
15
We conclude that the Court of Appeals, employing an unduly restrictive view of the scope of Judge Stump's jurisdictio , erred in holding that he was not entitled to judicial immunity. Because the court over which Judge Stump presides is one of general jurisdiction, neither the procedural errors he may have committed nor the lack of a specific statute authorizing his approval of the petition in question rendered him liable in damages for the consequences of his actions.
16
The respondents argue that even if Judge Stump had jurisdiction to consider the petition presented to him by Mrs. McFarlin, he is still not entitled to judicial immunity because his approval of the petition did not constitute a "judicial" act. It is only for acts performed in his "judicial" capacity that a judge is absolutely immune, they say. We do not disagree with this statement of the law, but we cannot characterize the approval of the petition as a nonjudicial act.
17
Respondents themselves stated in their pleadings before the District Court that Judge Stump was "clothed with the authority of the state" at the time that he approved the petition and that "he was acting as a county circuit court judge." Plaintiffs' Reply Brief to Memorandum Filed on Behalf of Harold D. Stump in Support of his Motion to Dismiss in Civ. No. F 75-129, p. 6. They nevertheless now argue that Judge Stump's approval of the petition was not a judicial act because the petition was not given a docket number, was not placed on file with the clerk's office, and was approved in an ex parte proceeding without notice to the minor, without a hearing, and without the appointment of a guardian ad litem.
18
This Court has not had occasion to consider, for purposes of the judicial immunity doctrine, the necessary attributes of a judicial act; but it has previously rejected the argument, somewhat similar to the one raised here, that the lack of formality involved in the Illinois Supreme Court's consideration of a petitioner's application for admission to the state bar prevented it from being a "judicial proceeding" and from presenting a case or controversy that could be reviewed by this Court. In re Summers, 325 U.S. 561, 65 S.Ct. 1307, 89 L.Ed. 1795 (1945). Of particular significance to the present case, the Court in Summers noted the following: "The record does not show that any process issued or that any appearance was made. . . . While no entry was placed by the Clerk in the file, on a docket, or in a judgment roll, the Court took cognizance of the petition and passed an order which is validated by the signature of the presiding officer." Id., at 567, 65 S.Ct., at 1311. Because the Illinois court took cognizance of the petition for admission and acted upon it, the Court held that a case or controversy was presented.
19
Similarly, the Court of Appeals for the Fifth Circuit has held that a state district judge was entitled to judicial immunity, even though "at the time of the altercation [giving rise to the suit] Judge Brown was not in his judge's robes, he was not in the courtroom itself, and he may well have violated state and/or federal procedural requirements regarding contempt citations." McAlester v. Brown, 469 F.2d 1280, 1282 (1972).9 Among the factors relied upon by the Court of Appeals in deciding that the judge was acting within his judicial capacity was the fact that "the confrontation arose directly and immediately out of a visit to the judge in his official capacity." Ibid.10 The relevant cases demonstrate that the factors determining whether an act by a judge is a "judicial" one relate to the nature of the act itself, i. e., whether it is a function normally performed by a judge, and to the expectations of the parties, i. e., whether they dealt with the judge in his judicial capacity. Here, both factors indicate that Judge Stump's approval of the sterilization petition was a judicial act.11 State judges with general jurisdiction not infrequently are called upon in their official capacity to approve petitions relating to the affairs of minors, as for example, a petition to settle a minor's claim. Furthermore, as even respondents have admitted, at the time he approved the petition presented to him by Mrs. McFarlin, Judge Stump was "acting as a county circuit court judge." See supra, at 360. We may infer from the record that it was only because Judge Stump served in that position that Mrs. McFarlin, on the advice of counsel, submitted the petition to him for his approval. Because Judge Stump performed the type of act normally performed only by judges and because he did so in his capacity as a Circuit Court Judge, we find no merit to respondents' argument that the informality with which he proceeded rendered his action nonjudicial and deprived him of his absolute immunity.12
20
Both the Court of Appeals and the respondents seem to suggest that, because of the tragic consequences of Judge Stump's actions, he should not be immune. For example, the Court of Appeals noted that "[t]here are actions of purported judicial character that a judge, even when exercising general jurisdiction, is not empowered to take," 552 F.2d, at 176, and respondents argue that Judge Stump's action was "so unfair" and "so totally devoid of judicial concern for the interests and well-being of the young girl involved" as to disqualify it as a judicial act. Brief for Respondents 18. Disagreement with the action taken by the judge, however, does not justify depriving that judge of his immunity. Despite the unfairness to litigants that sometimes results, the doctrine of judicial immunity is thought to be in the best interests of "the proper administration of justice . . . [, for it allows] a judicial officer, in exercising the authority vested in him [to] be free to act upon his own convictions, without apprehension of personal consequences to himself." Bradley v. Fisher, 13 Wall., at 347. The fact that the issue before the judge is a controversial one is all the more reason that he should be able to act without fear of suit. As the Court pointed out in Bradley :
21
"Controversies involving not merely great pecuniary interests, but the liberty and character of the parties, and consequently exciting the deepest feelings, are being constantly determined in those courts, in which there is great conflict in the evidence and great doubt as to the law which should govern their decision. It is this class of cases which impose upon the judge the severest labor, and often create in his mind a painful sense of responsibility." Id., at 348.
22
The Indiana law vested in Judge Stump the power to entertain and act upon the petition for sterilization. He is, therefore, under the controlling cases, immune from damages liability even if his approval of the petition was in error. Accordingly, the judgment of the Court of Appeals is reversed, and the case is remanded for further proceedings consistent with this opinion.13
23
It is so ordered.
24
Mr. Justice BRENNAN took no part in the consideration or decision of this case.
25
Mr. Justice STEWART, with whom Mr. Justice MARSHALL and Mr. Justice POWELL join, dissenting.
26
It is established federal law that judges of general jurisdiction are absolutely immune from monetary liability "for their judicial acts, even when such acts are in excess of their jurisdiction, and are alleged to have been done maliciously or corruptly." Bradley v. Fisher, 13 Wall. 335, 351, 20 L.Ed. 646. It is also established that this immunity is in no way diminished in a proceeding under 42 U.S.C. § 1983. Pierso v. Ray, 386 U.S. 547, 87 S.Ct. 1213, 18 L.Ed.2d 288. But the scope of judicial immunity is limited to liability for "judicial acts," and I think that what Judge Stump did on July 9, 1971, was beyond the pale of anything that could sensibly be called a judicial act.
27
Neither in Bradley v. Fisher nor in Pierson v. Ray was there any claim that the conduct in question was not a judicial act, and the Court thus had no occasion in either case to discuss the meaning of that term.1 Yet the proposition that judicial immunity extends only to liability for "judicial acts" was emphasized no less than seven times in Mr. Justice Field's opinion for the Court in the Bradley case.2 Cf. Imbler v. Pachtman, 424 U.S. 409, 430, 96 S.Ct. 984, 995, 47 L.Ed.2d 128. And if the limitations inherent in that concept have any realistic meaning at all, then I cannot believe that the action of Judge Stump in approving Mrs. McFarlin's petition is protected by judicial immunity.
28
The Court finds two reasons for holding that Judge Stump's approval of the sterilization petition was a judicial act. First, the Court says, it was "a function normally performed by a judge." Second, the Court says, the act was performed in Judge Stump's "judicial capacity." With all respect, I think that the first of these grounds is factually untrue and that the second is legally unsound.
29
When the Court says that what Judge Stump did was an act "normally performed by a judge," it is not clear to me whether the Court means that a judge "normally" is asked to approve a mother's decision to have her child given surgical treatment generally, or that a judge "normally" is asked to approve a mother's wish to have her daughter sterilized. But whichever way the Court's statement is to be taken, it is factually inaccurate. In Indiana, as elsewhere in our country, a parent is authorized to arrange for and consent to medical and surgical treatment of his minor child. Ind.Code Ann. § 16-8-4-2 (1973). And when a parent decides to call a physician to care for his sick child or arranges to have a surgeon remove his child's tonsils, he does not, "normally" or otherwise, need to seek the approval of a judge.3 On the other hand, Indiana did in 1971 have statutory procedures for the sterilization of certain people who were institutionalized. But these statutes provided foradministrative proceedings before a board established by the superintendent of each public hospital. Only if after notice and an evidentiary hearing, an order of sterilization was entered in these proceedings could there be review in a circuit court. See Ind.Code Ann. §§ 16-13-13-1 through 16-13-13-4 (1973).4
30
In sum, what Judge Stump did on July 9, 1971, was in no way an act "normally performed by a judge." Indeed, there is no reason to believe that such an act has ever been performed by any other Indiana judge, either before or since.
31
When the Court says that Judge Stump was acting in "his judicial capacity" in approving Mrs. McFarlin's petition, it is not clear to me whether the Court means that Mrs. McFarlin submitted the petition to him only because he was a judge, or that, in approving it, he said that he was acting as a judge. But however the Court's test is to be understood, it is, I think, demonstrably unsound.
32
It can safely be assumed that the Court is correct in concluding that Mrs. McFarlin came to Judge Stump with her petition because he was a County Circuit Court Judge. But false illusions as to a judge's power can hardly convert a judge's response to those illusions into a judicial act. In short, a judge's approval of a mother's petition to lock her daughter in the attic would hardly be a judicial act simply because the mother had submitted her petition to the judge in his official capacity.
33
If, on the other hand, the Court's test depends upon the fact that Judge Stump said he was acting in his judicial capacity, it is equally invalid. It is true that Judge Stump affixed his signature to the approval of the petition as "Judge, DeKalb Circuit Court." But the conduct of a judge surely does not become a judicial act merely on his own say-so. A judge is not free, like a loose cannon, to inflict indiscriminate damage whenever he announces that he is acting in his judicial capacity.5
34
If the standard adopted by the Court is invalid, then what is the proper measure of a judicial act? Contrary to implications in the Court's opinion, my conclusion that what Judge Stump did was not a judicial act is not based upon the fact that he acted with informality, or that he may not have been "in his judge's robes," or "in the courtroom itself." Ante, at 361. And I do not reach this conclusion simply "because the petition was not given a docket number, was not placed on file with the clerk's office, and was approved in an ex parte proceeding without notice to the minor, without a hearing, and without the appointment of a guardian ad litem." Ante, at 360.
35
It seems to me, rather that the concept of what is a judicial act must take its content from a consideration of the factors that support immunity from liability for the performance of such an act. Those factors were accurately summarized by the Court in Pierson v. Ray, 386 U.S., at 554, 87 S.Ct., at 1218:
36
"[I]t 'is . . . for the benefit of the public, whose interest it is that the judges should be at liberty to exercise their functions with independence and without fear of consequences'. . . . It is a judge's duty to decide all cases within his jurisdiction that are brought before him, including controversial cases that arouse the most intense feelings in the litigants. His errors may be corrected on ap eal, but he should not have to fear that unsatisfied litigants may hound him with litigation charging malice or corruption. Imposing such a burden on judges would contribute not to principled and fearless decisionmaking but to intimidation."
37
Not one of the considerations thus summarized in the Pierson opinion was present here. There was no "case," controversial or otherwise. There were no litigants. There was and could be no appeal. And there was not even the pretext of principled decision-making. The total absence of any of these normal attributes of a judicial proceeding convinces me that the conduct complained of in this case was not a judicial act.
38
The petitioners' brief speaks of "an aura of deism which surrounds the bench . . . essential to the maintenance of respect for the judicial institution." Though the rhetoric may be overblown, I do not quarrel with it. But if aura there be, it is hardly protected by exonerating from liability such lawless conduct as took place here. And if intimidation would serve to deter its recurrence, that would surely be in the public interest.6
39
Mr. Justice POWELL, dissenting.
40
While I join the opinion of Mr. Justice STEWART, I wish to emphasize what I take to be the central feature of this case—Judge Stump's preclusion of any possibility for the vindication of respondents' rights elsewhere in the judicial system.
41
Bradley v. Fisher, 13 Wall. 335, 20 L.Ed. 646 (1872), which established the absolute judicial immunity at issue in this case, recognized that the immunity was designed to further the public interest in an independent judiciary, sometimes at the expense of legitimate individual grievances. Id., at 349; accord, Pierson v. Ray, 386 U.S. 547, 554, 87 S.Ct. 1213, 1217, 18 L.Ed.2d 288 (1967). The Brady Court accepted those costs to aggrieved individuals because the judicial system itself provided other means for protecting individual rights:
42
"Against the consequences of [judges'] erroneous or irregular action, from whatever motives proceeding, the law has provided for private parties numerous remedies, and to those remedies they must, in such cases, resort." 13 Wall., at 354.
43
Underlying the Bradley immunity, then, is the notion that private rights can be sacrificed in some degree to the achievement of the greater public good deriving from a completely independent judiciary, because there exist alternative forums and methods for vindicating those rights.1
44
But where a judicial officer acts in a manner that precludes all resort to appellate or other judicial remedies that otherwise would be available, the underlying assumption of the Bradley doctrine is inoperative. See Pierson v. Ray, supra, 386 U.S., at 554, 87 S.Ct., at 1213, 1218.2 In this case, as Mr. Justice STEWART points out, ante, at 369, Judge Stump's unjudicial conduct insured that "[t]here was and could be no appeal." The complete absence of normal judicial process foreclosed resort to any of the "numerous remedies" that "the law has provided for private parties." Bradley, supra, at 354.
45
In sum, I agree with Mr. Justice STEWART that petitioner judge's actions were not "judicial," and that he is entitled to no judicial immunity from suit under 42 U.S.C. § 1983.
1
The full text of the petition presented to Judge Stump read as follows:
"STATE OF INDIANA) ss:
COUNTY OF DEKALB)
"PETITION TO HAVE TUBAL LIGATION PERFORMED ON
MINOR AND INDEMNITY AGREEMENT
"Ora Spitler McFarlin, being duly sworn upon her oath states that she
is the natural mother of and has custody of her daughter, Linda Spitler, age fifteen (15) being born January 24, 1956 and said daughter resides with her at 108 Iowa Street, Auburn, DeKalb County, Indiana.
"Affiant states that her daughter's mentality is such that she is considered to be somewhat retarded although she is attending or has attended the public schools in DeKalb Central School System and has been passed along with other children in her age level even though she does not have what is considered normal mental capabilities and intelligence. Further, that said affiant has had problems in the home of said child as a result of said daughter leaving the home on several occasions to associate with older youth or young men and as a matter of fact having stayed overnight with said youth or men and about which incidents said affiant did not become aware of until after such incidents occurred. As a result of this behavior and the mental capabilities of said daughter, affiant believes that it is to the best interest of said child that a Tubal Ligation be performed on said minor daughter to prevent unfortunate circumstances to occur and since it is impossible for the affiant as mother of said minor child to maintain and control a continuous observation of the activities of said daughter each and every day.
"Said affiant does hereby in consideration of the Court of DeKalb Circuit Court approving the Tubal Ligation being performed upon her minor daughter does hereby [sic] covenant and agree to idemnify and keep idemnified and hold Dr. John Hines, Auburn, Indiana, who said affiant is requesting to perform said operation and the DeKalb Memorial Hospital, Auburn, Indiana, whereas [sic] said operation will be performed, harmless from and against all or any matters or causes of action that could or might arise as a result of the performing of said Tubal Ligation.
"IN WITNESS WHEREOF, said affiant, Ora Spitler McFarlin, has hereunto subscribed her name this 9th day of July, 1971.
"/s/ ORA SPITLER MCFARLIN
Ora Spitler McFarlin
Petitioner
"Subscribed and sworn to before me this 9th day of July, 1971.
"/s/ WARREN G. SUNDAY
Warren G. Sunday
Notary Public
"My commission expires January 4, 1975.
"I, Harold D. Stump, Judge of the DeKalb Circuit Court, do hereby approve the above Petition by affidavit form on behalf of Ora Spitler McFarlin, to have Tubal Ligation performed upon her minor daughter, Linda Spitler, subject to said Ora Spitler McFarlin covenanting and agreeing to idemnify and keep idemnified Dr. John Hines and the DeKalb Memorial Hospital from any matters or causes of action arising therefrom."
/s/ HAROLD D. STUMP
Judge, DeKalb Circuit Court
"Dated July 9, 1971"
2
The District Court gave the following summary of the constitutional claims asserted by the Sparkmans:
"Whether laid under section 1331 or 1343(3) and whether asserted
directly or via section 1983 and 1985, plaintiffs' grounds for recovery are asserted to rest on the violation of constitutional rights. Plaintiffs urge that defendants violated the following constitutional guarantees:
"1. that the actions were arbitrary and thus in violation of the due process clause of the Fourteenth Amendment;
"2. that Linda was denied procedural safeguards required by the Fourteenth Amendment;
"3. that the sterilization was permitted without the promulgation of standards;
"4. that the sterilization was an invasion of privacy;
"5. that the sterilization violated Linda's right to procreate;
"6. that the sterilization was cruel and unusual punishment;
"7. that the use of sterilization as punishment for her alleged retardation or lack of self-discipline violated various constitutional guarantees;
"8. that the defendants failed to follow certain Indiana statutes, thus depriving Linda of due process of law; and
"9. that defendants violated the equal protection clause, because of the differential treatment accorded Linda on account of her sex, marital status, and allegedly low mental capacity." Sparkman v. McFarlin, Civ. No. F 75-129 (ND Ind., May 13, 1976).
3
The District Court granted the defendants' motion to dismiss the federal claims for that reason and dismissed the remaining pendent state claims for lack of subject-matter jurisdiction.
4
Sparkman v. McFarlin, 552 F.2d 172 (CA7 1977).
5
Even earlier, in Randall v. Brigham, 7 Wall. 523, 19 L.Ed. 285 (1869), the Court stated that judges are not responsible "to private parties in civil actions for their judicial acts, however injurious may be those acts, and however much they may deserve condemnation, unless perhaps where the acts are palpably in excess of the jurisdiction of the judges, and are done maliciously or corruptly." Id., at 537. In Bradley the Court reconsidered that earlier statement and concluded that "the qualifying words used were not necessary to a correct statement o the law . . . ." 13 Wall., at 351.
6
In holding that a judge was immune for his judicial acts, even when such acts were performed in excess of his jurisdiction, the Court in Bradley stated:
"A distinction must be here observed between excess of jurisdiction and the clear absence of all jurisdiction over the subject-matter. Where there is clearly no jurisdiction over the subject-matter any authority exercised is a usurped authority, and for the exercise of such authority, when the want of jurisdiction is known to the judge, no excuse is permissible. But where jurisdiction over the subject-matter is invested by law in the judge, or in the court which he holds, the manner and extent in which the jurisdiction shall be exercised are generally as much questions for his determination as any other questions involved in the case, although upon the correctness of his determination in these particulars the validity of his judgments may depend." Id., at 351-352.
7
In Bradley, the Court illustrated the distinction between lack of jurisdiction and excess of jurisdiction with the following examples: if a probate judge, with jurisdiction over only wills and estates, should try a criminal case, he would be acting in the clear absence of jurisdiction and would not be immune from liability for his action; on the other hand, if a judge of a criminal court should convict a defendant of a nonexistent crime, he would merely be acting in excess of his jurisdiction and would be immune. Id., at 352.
8
Indiana Code § 33-4-4-3 (1975) states as follows:
"Jurisdiction.—Said court shall have original exclusive jurisdiction in all cases at law and in equity whatsoever, and in criminal cases and actions for divorce, except where exclusive or concurrent jurisdiction is, or may be conferred by law upon justices of the peace. It shall also have exclusive jurisdiction of the settlement of decedents' estates and of guardianships: Provided, however, That in counties in which criminal or superior courts exist or may be organized, nothing in this section shall be construed to deprive such courts of the jurisdiction conferred upon them by laws, and it shall have such appellate jurisdiction as may be conferred by law, and it shall have jurisdiction of all other causes, matters and proceedings where exclusive jurisdiction thereof is not conferred by law upon some other court, board or officer."
9
In McAlester the plaintiffs alleged that they had gone to the courthouse where their son was to be tried by the defendant in order to give the son a fresh set of clothes. When they went into the defendant judge's office, he allegedly ordered them out and had a deputy arrest one of them and place him in jail for the rest of the day. Several months later, the judge issued an order holding the plaintiff in contempt of court, nunc pro tunc.
10
Other Courts of Appeals, presented with different fact situations, have concluded that the challenged actions of defendant judges were not performed as part of the judicial function and that the judges were thus not entitled to rely upon the doctrine of judicial immunity. The Court of Appeals for the Ninth Circuit, for example, has held that a justice of the peace who was accused of forcibly removing a man from his courtroom and physically assaulting him was not absolutely immune. Gregory v. Thompson, 500 F.2d 59 (1974). While the court recognized that a judge has the duty to maintain order in his courtroom, it concluded that the actual eviction of someone from the courtroom by use of physical force, a task normally performed by a sheriff or bailiff, was "simply not an act of a judicial nature." Id., at 64. And the Court of Appeals for the Sixth Circuit held in Lynch v. Johnson, 420 F.2d 818 (1970), that the county judge sued in that case was not entitled to judicial immunity because his service on a board with only legislative and administrative powers did not constitute a judicial act.
11
Mr. Justice STEWART, in dissent, complains that this statement is inaccurate because it nowhere appears that judges are normally asked to approve parents' decisions either with respect to surgical treatment in general or with respect to sterilizations in particular. Of course, the opinion makes neither assertion. Rather, it is said that Judge Stump was performing a "function" normally performed by judges and that he was taking "the type of action" judges normally perform. The dissent makes no effort to demonstrate that Judge Stump was without jurisdiction to entertain and act upon the specific petition presented to him. Nor does it dispute that judges normally entertain petitions with respect to the affairs of minors. Even if it is assumed that in a lifetime of judging, a judge has acted on only one petition of a particular kind, this would not indicate that his function in entertaining and acting on it is not the kind of function that a judge normally performs. If this is the case, it is also untenable to claim that in entertaining the petition and exercising the jurisdiction with which the statutes invested him, Judge Stump was nevertheless not performing a judicial act or was engaging in the kind of conduct not expected of a judge under the Indiana statutes governing the jurisdiction of its courts.
12
Mr. Justice STEWART'S dissent, post, at 369, suggests that Judge Stump's approval of Mrs. McFarlin's petition was not a judicial act because of the absence of what it considers the "normal attributes of a judicial proceeding." These attributes are said to include a "case," with litigants and the opportunity to appeal, in which there is "princip ed decisionmaking." But under Indiana law, Judge Stump had jurisdiction to act as he did; the proceeding instituted by the petition placed before him was sufficiently a "case" under Indiana law to warrant the exercise of his jurisdiction, whether or not he then proceeded to act erroneously. That there were not two contending litigants did not make Judge Stump's act any less judicial. Courts and judges often act ex parte. They issue search warrants in this manner, for example, often without any "case" having been instituted, without any "case" ever being instituted, and without the issuance of the warrant being subject to appeal. Yet it would not destroy a judge's immunity if it is alleged and offer of proof is made that in issuing a warrant he acted erroneously and without principle.
13
The issue is not presented and we do not decide whether the District Court correctly concluded that the federal claims against the other defendants were required to be dismissed if Judge Stump, the only state agent, was found to be absolutely immune. Compare Kermit Constr. Corp. v. Banco Credito y Ahorro Ponceno, 547 F.2d 1 (CA1 1976), with Guedry v. Ford, 431 F.2d 660 (CA5 1970).
1
In the Bradley case the plaintiff was a lawyer who had been disbarred; in the Pierson case the plaintiffs had been found guilty after a criminal trial.
2
See 13 Wall., at 347, 348, 349, 351, 354, 357.
3
This general authority of a parent was held by an Indiana Court of Appeals in 1975 not to include the power to authorize the sterilization of his minor child. A. L. v. G. R. H., 163 Ind.App. 636, 325 N.E.2d 501.
Contrary to the Court's conclusion, ante, at 359, that case does not in the least demonstrate that an Indiana judge is or ever was empowered to act on the merits of a petition like Mrs. McFarlin's. The parent in that case did not petition for judicial approval of her decision, but rather "filed a complaint for declaratory judgment seeking declaration of her right under the common-law attributes of the parent-child relationship to have her son . . . sterilized." 163 Ind.App., at 636-637, 325 N.E.2d, at 501. The Indiana Court of Appeals' decision simply established a limitation on the parent's common-law rights. It neither sanctioned nor contemplated any procedure for judicial "approval" of the parent's decision.
Indeed, the procedure followed in that case offers an instructive contrast to the judicial conduct at issue here:
"At the out et, we thank counsel for their excellent efforts in representing a seriously concerned parent and in providing the guardian ad litem defense of the child's interest." Id., at 638, 325 N.E.2d, at 502.
4
These statutes were repealed in 1974.
5
Believing that the conduct of Judge Stump on July 9, 1971, was not a judicial act, I do not need to inquire whether he was acting in "the clear absence of all jurisdiction over the subject matter." Bradley v. Fisher, 13 Wall., at 351. "Jurisdiction" is a coat of many colors. I note only that the Court's finding that Judge Stump had jurisdiction to entertain Mrs. McFarlin's petition seems to me to be based upon dangerously broad criteria. Those criteria are simply that an Indiana statute conferred "jurisdiction of all . . . causes, matters and proceedings," and that there was not in 1971 any Indiana law specifically prohibiting what Judge Stump did.
6
The only question before us in this case is the scope of judicial immunity. How the absence of a "judicial act" might affect the issue of whether Judge Stump was acting "under color of" state law within the meaning of 42 U.S.C. § 1983, or the issue of whether his act was that of the State within the meaning of the Fourteenth Amendment that need not, therefore, be pursued here.
1
See Handler & Klein, The Defense of Privilege in Defamation Suits Against Government Executive Officials, 74 Harv.L.Rev. 44, 53-55 (1960); Jaffe, Suits Against Governments and Officers: Damage Actions, 77 Harv.L.Rev. 209, 233-235 (1963); Note, Federal Executive Immunity From Civil Liability in Damages: A Reevaluation of Barr v. Maeto, 77 Colum.L.Rev. 625, 647 (1977).
2
In both Bradley and Pierson any errors committed by the judges involved were open to correction on appeal.
| 12
|
435 U.S. 389
98 S.Ct. 1123
55 L.Ed.2d 364
CITY OF LAFAYETTE, LOUISIANA and City of Plaquemine, Louisiana, Petitioners,v.LOUISIANA POWER & LIGHT COMPANY.
No. 76-864.
Argued Oct. 4, 1977.
Decided March 29, 1978.
Syllabus
Petitioner cities, which own and operate electric utility systems both within and beyond their respective city limits as authorized by Louisiana law, brought an action in District Court against respondent investor-owned electric utility with which petitioners compete, alleging tha it committed various federal antitrust offenses that injured petitioners in the operation of their electric utility systems. Respondent counterclaimed, alleging that petitioners had committed various antitrust offenses that injured respondent in its business and property. Petitioners moved to dismiss the counterclaim on the ground that, as cities and subdivisions of the State, the "state action" doctrine of Parker v. Brown, 317 U.S. 341, 63 S.Ct. 307, 87 L.Ed. 315, rendered federal antitrust laws inapplicable to them. The District Court granted the motion, but the Court of Appeals reversed and remanded. Held: Apart from whether petitioners are exempt from the antitrust laws as agents of the State under the Parker doctrine there are insufficient grounds for inferring that Congress did not intend to subject cities to antitrust liability. Pp. 394-408.
(a) The definition of "person" or "persons" covered by the antitrust laws clearly includes cities, whether as municipal utility operators suing as plaintiffs seeking damages for antitrust violations or as such operators being sued as defendants. Chattanooga Foundry & Pipe Works v. Atlanta, 203 U.S. 390, 27 S.Ct. 65, 51 L.Ed. 241; Georgia v. Evans, 316 U.S. 159, 62 S.Ct. 972, 86 L.Ed. 1346. Pp. 394-397.
(b) Petitioners have failed to show the existence of any overriding public policy inconsistent with a construction of coverage of the antitrust laws. The presumption against implied exclusion from such laws cannot be negated either on the ground that it would be anomalous to subject municipalities to antitrust liability or on the ground that the antitrust laws are intended to protect the public only from abuses of private power and not from action of municipalities that exist to serve the public weal. Pp. 400-408.
Mr. Justice BRENNAN, joined by Mr. Justice MARSHALL, Mr. Justice POWELL, and Mr. Justice STEVENS, concluded:
1
1. Parker v. Brown does not automatically exempt from the antitrust laws all governmental entities, whether state agencies or subdivisions of a State, simply by reason of their status as such, but exempts only anticompetitive conduct engaged in as an act of government by the State as sovereign, or by its subdivisions, pursuant to state policy to displace competition with regulation or monopoly public service. Pp. 408-413.
2
2. The Court of Appeals did not err in holding that further inquiry should be made to determine whether petitioners' actions were directed by the State, since when the State itself has not directed or authorized an anticompetitive practice, the State's subdivisions in exercising their delegated power must obey the antitrust laws. While a subordinate governmental unit's claim to Parker immunity is not as readily established as the same claim by a state government sued as such, an adequate state mandate for anticompetitive activities of cities and other subordinate governmental units exists when it is found "from the authority given a governmental entity to operate in a particular area, that the legislature contemplated the kind of action complained of." Pp. 413-417.
3
The Chief Justice, while agreeing with the directions for remand in Part III because they represent at a minimum what is required to establish an exemption, would insist that the State compel the alleged anticompetitive activity and that the cities demonstrate that the exemption is essential to the state regulatory scheme. Pp. 425-426, and n. 6.
4
5 Cir., 532 F.2d 431, affirmed.
5
Jerome A. Hochberg, Washington, D. C., for petitioners.
6
Andrew P. Carter, New Orleans, La., for respondent.
7
William T. Crisp, Raleigh, N. C., for the National Rural Elec. Cooperative Ass'n et al., as amicus curiae, by special leave of Court.
8
Mr. Justice BRENNAN delivered the opinion of the Court (Part I), together with an opinion (Parts II and III), in which Mr. Justice MARSHALL, Mr. Justice POWELL, and Mr. Justice STEVENS joined.
9
Parker v. Brown 317 U.S. 341, 63 S.Ct. 307, 87 L.Ed. 315 (1943), held that the federal antitrust laws do not prohibit a State "as sovereign" from imposing certain anticompetitive restraints "as an act of government." The question in this case is the extent to which the antitrust laws prohibit a State's cities from imposing such anticompetitive restraints.
10
Petitioner cities are organized under the laws of the State of Louisiana,1 which grant them power to own and operate electric utility systems both within and beyond their city limits.2 Petitioners brought this action in the District Court for the Eastern District of Louisiana, alleging that, among others,3 Louisiana Power & Light Co. (LP&L), an investor-owned electric service utility with which petitioners compete in the areas beyond their city limits,4 committed various antitrust offenses which injured petitioners in the operation of their electric utility systems.5 LP&L counterclaimed, seeking damages and injunctive relief for various antitrust offenses which petitioners had allegedly committed and which injured it in its business and property.6
11
Petitioners moved to dismiss the counterclaim on the ground that, as cities and subdivisions of the State of Louisiana, the "state action" doctrine of Parker v. Brown, rendered federal antitrust laws inapplicable to them. The District Court granted the motion, holding that the decision of the Court of Appeals for the Fifth Circuit in Saenz v. University Interscholastic League, 487 F.2d 1026 (1973), required dismissal, notwithstanding that "[t]hese plaintiff cities are engaging in what is clearly a business activity . . . in which a profit is realized," and "for this reason . . . this court is reluctant to hold that the antitrust laws do not apply to any state activity."7 App. 47 (emph sis in original). The District Court in this case read Saenz to interpret the "state action" exemption8 as requiring the "holding that purely state government activities are not subject to the requirements of the antitrust laws of the United States," App. 48, thereby making petitioners' status as cities determinative against maintenance of antitrust suits against them. The Court of Appeals for the Fifth Circuit reversed and remanded for further proceedings.9 532 F.2d 431 (1976). The Court of Appeals noted that the District Court had acted before this Court's decision in Goldfarb v. Virginia State Bar, 421 U.S. 773, 95 S.Ct. 2004, 44 L.Ed.2d 572 (1975), and held that "taken together" Parker v. Brown and Goldfarb "require the following analysis":
12
"A subordinate state governmental body is not ipso facto exempt from the operation of the antitrust laws. Rather, a district court must ask whether the state legislature contemplated a certain type of anticompetitive restraint. In our opinion, though, it is not necessary to point to an express statutory mandate for each act which is alleged to violate the antitrust laws. It will suffice if the challenged activity was clearly within the legislative intent. Thus, a trial judge may ascertain, from the authority given a governmental entity to operate in a particular area, that the legislature contemplated the kind of action complained of. On the other hand, as inGoldfarb, the connection between a legislative grant of power and the subordinate entity's asserted use of that power may be too tenuous to permit the conclusion that the entity's intended scope of activity encompassed such conduct. Whether a governmental body's actions are comprehended within the powers granted to it by the legislature is, of course, a determination which can be made only under the specific facts in each case. A district judge's inquiry on this point should be broad enough to include all evidence which might show the scope of legislative intent." 532 F.2d, at 434-435 (footnotes omitted).
13
We granted certiorari, 430 U.S. 944, 97 S.Ct. 1577, 51 L.Ed.2d 791 (1977). We affirm.
14
* Petitioners' principal argument is that "since a city is merely a subdivision of a state and only exercises power delegated to it by the state, Parker's findings regarding the congressionally intended scope of the Sherman Act apply with equal force to such political subdivisions." Brief for Petitioners 5. Before addressing this question, however, we shall address the contention implicit in petitioners' arguments in their brief that, apart from the question of their exemption as agents of the State under the Parker doctrine, Congress never intended to subject local governments to the antitrust laws.
A.
15
The antitrust laws impose liability on and create a cause of action for damages for a "person" or "persons" as defined in the Acts.10 Since the Court has held that the definition of "person" or "persons" embraces both cities and States, it is understandable that the cities do not argue that they are not "persons" within the meaning of the antitrust laws.
16
Section 8 of the Sherman Act, ch. 647, 26 Stat. 210, 15 U.S.C. § 7 (1976 ed.), and § 1 of the Clayton Act, 38 Stat. 730, 15 U.S.C. § 12 (1976 ed.), are general definitional sections which define "person" or "persons," "wherever used in this [Act] . . . to include corporations and associations existing under or authorized by the laws of either the United States, the laws of any of the Territories, the laws of any State, or the laws of any foreign country."11 Section 4 of the Clayton Act, 38 Stat. 731, 15 U.S.C. § 15 (1976 ed.), provides, in pertinent part, that "[a]ny 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 . . ., and shall recover threefold the damages by him sustained . . . ."12
17
Chattanooga Foundry & Pipe Works v. City of Atlanta, 203 U.S. 390, 27 S.Ct. 65, 51 L.Ed. 241 (1906), held that a municipality is a "person" within the meaning of § 8 of the Sherman Act, the general definitional section, and that the city of Atlanta therefore could maintain a treble-damages action under § 7, the predecessor of § 4 of the Clayton Act,13 against a supplier from whom the city purchased water pipe which it used to furnish water as a municipal utility service. Some 36 years later, Georgia v. Evans, 316 U.S. 159, 62 S.Ct. 972, 86 L.Ed. 1346 (1942), held that the words "any person" in § 7 of the Sherman Act included States. Under that decision, the State of Georgia was permitted to bring an action in its own name charging injury from a combination to fix prices and suppress competition in the market for asphalt which the State purchased annually for use in the construction of public roads. The Court reasoned that "[n]othing in the Act, its history, or its poli y, could justify so restrictive a construction of the word 'person' in § 7 as to exclude a State." 316 U.S., at 162, 62 S.Ct., at 974.
18
Although both Chattanooga Foundry and Georgia v. Evans involved the public bodies as plaintiffs, whereas petitioners in the instant case are defendants to a counterclaim, the basis of those decisions plainly precludes a reading of "person" or "persons" to include municipal utility operators that sue as plaintiffs but not to include such municipal operators when sued as defendants. Thus, the conclusion that the antitrust laws are not to be construed as meant by Congress to subject cities to liability under the antitrust laws must rest on the impact of some overriding public policy which negates the construction of coverage, and not upon a reading of "person" or "persons" as not including them.14
B
19
Petitioners suggest several reasons why, in addition to their arguments for exemption as agents of the State under the Parker doctrine, a congressional purpose not to subject cities to the antitrust laws should be inferred. Those arguments, like the Parker exemption itself, necessarily must be considered in light of the presumption against implied exclusions from coverage under the antitrust laws.
20
(1)
21
The purposes and intended scope of the Sherman Act have been developed in prior cases and require only brief mention here. Commenting upon the language of the Act in rejecting a claim that the insurance business was excluded from coverage, the Court stated: "Language more comprehensive is difficult to conceive. On its face it shows a carefully studied attempt to bring within the Act every person engaged in business whose activities might restrain or monopolize commercial intercourse among the states." United States v. South-Eastern Underwriters Assn., 322 U.S. 533, 553, 64 S.Ct. 1162, 1174, 88 L.Ed. 1440 (1944). That and subsequent cases reviewing the legislative history of the Sherman Act have concluded that Congress, exercising the full extent of its constitutional power,15 sought to establish a regime of competition as the fundamental principle governing commerce in this country.16
22
For this reason, our cases have held that even when Congress by subsequent legislation establishes a regulatory regime over an area of commercial activity, the antitrust laws will not be displaced unless it appears that the antitrust and regulatory provisions are plainly repugnant. E. g., United States v. Philadelphia Nat. Bank, 374 U.S. 321, 350-351, and n. 28, 83 S.Ct. 1715, 1734-1735, 10 L.Ed.2d 915 (1963) (collecting cases). The presumption against repeal by implication reflects the understanding that the antitrust laws establish overarching and fundamental policies, a principle which argues with equal force against implied exclusions. See Goldfarb, 421 U.S., at 786-788, 95 S.Ct., at 2012-2013.
23
Two policies have been held sufficiently weighty to override the presumption against implied exclusions from coverage of the antitrust laws. In Eastern Railroad Presidents Conf. v. Noerr Motor Freight, Inc., 365 U.S. 127, 81 S.Ct. 523, 5 L.Ed.2d 464 (1961), the Court held that, regardless of anticompetitive purpose or intent, a concerted effort by persons to influence lawmakers to enact legislation beneficial to themselves or detrimental to competitors was not within the scope of the antitrust laws. Although there is nothing in the language of the statute or its history which would indicate that Congress considered such an exclusion, the impact of two correlative principles was held to require the conclusion that the presumption should not support a finding of coverage. The first is that a contrary construction would impede the open communication between the polity and its lawmakers which is vital to the functioning of a representative democracy. Second, "and of at least equal significance," is the threat to the constitutionally protected right of petition which a contrary construction would entail. Id., at 137-138, 81 S.Ct., at 529-530.17
24
Parker v. Brown18 identified a second overriding policy, namely that "[i]n a dual system of government in which, under the Constitution, the states, are sovereign, save only as Congress may constitutionally subtract from their authority, an unexpressed purpose to nullify a state's control over its officers and agents is not lightly to be attributed to Congress." 317 U.S., at 351, 63 S.Ct., at 313.
25
Common to the two implied exclusions was potential conflict with policies of signal importance in our national traditions and governmental structure of federalism. Even then, however, the recognized exclusions have been unavailing to prevent antitrust enforcement which, though implicating those fundamental policies, was not thought severely to impinge upon them. See, e. g., Goldfarb, supra; California Motor Transport Co. v. Trucking Unlimited, 404 U.S. 508, 92 S.Ct. 609, 30 L.Ed.2d 642 (1972).
26
Petitioners' arguments therefore cannot prevail unless they demonstrate that there are countervailing policies which are sufficiently weighty to overcome the presumption. We now turn to a consideration of whether, apart from the question of their exemption as agents of the State under the Parker doctrine, petitioners have made that showing.
27
(2)
28
Petitioners argue that their exclusion must be inferred because it would be anomalous to subject municipalities to the criminal and civil liabilities imposed upon violators of the antitrust laws. The short answer is that it has not been regarded as anomalous to require compliance by municipalities with the substantive standards of other federal laws which impose such sanctions upon "persons." See Union Pacific R. Co. v. United States, 313 U.S. 450, 61 S.Ct. 1064, 85 L.Ed. 1453 (1941).19 See generally Ohio v. Helvering, 292 U.S. 360, 370, 54 S.Ct. 725, 727, 78 L.Ed. 1307 (1934);20 California v. United States, 320 U.S. 577, 64 S.Ct. 352, 88 L.Ed. 322 (1944).21 But those cases do not necessarily require the conclusion that remedies appropriate to redress violations by private corporations would be equally appropriate for municipalities; nor need we decide any question of remedy in this case.22
29
Petitioners next argue that the antitrust laws are intended to protect the public only from abuses of private power and not from actions of municipalities that exist to serve the public weal.
30
Petitioners' contention that their goal is not private profit but public service is only partly correc . Every business enterprise, public or private, operates its business in furtherance of its own goals. In the case of a municipally owned utility, that goal is likely to be, broadly speaking, the benefit of its citizens. But the economic choices made by public corporations in the conduct of their business affairs, designed as they are to assure maximum benefits for the community constituency, are not inherently more likely to comport with the broader interests of national economic well-being than are those of private corporations acting in furtherance of the interests of the organization and its shareholders. The allegations of the counterclaim, which for present purposes we accept as true,23 aptly illustrate the impact which local governments, acting as providers of services, may have on other individuals and business enterprises with which they inter-relate as purchasers, suppliers, and sometimes, as here, as competitors.24
31
LP&L alleged that the city of Plaquemine contracted to provide LP&L's electric customers outside its city limits gas and water service only on condition that the customers purchase electricity from the city and not from LP&L.25 The effect of such a tie-in is twofold. First, the tying contract might injure former LP&L customers in two ways. The net effect of the tying contract might be to increase the cost of electric service to these customers. Moreover, a municipality conceivably might charge discriminatorily higher rates to such captive customers outside its jurisdiction without a cost-justified basis. Both of these practices would provide maximum benefits for its constituents, while disserving the interests of the affected customers. Second, the practice would necessarily have an impact on the regulated public utility whose service is displaced.26 The elimination of customers in an established service area would likely reduce revenues, and possibly require abandonment or loss of existing equipment the effect of which would be to reduce its rate base and possibly affect its capital structure. The surviving customers and the investor-owners would bear the brunt of these consequences. The decision to displace existing service, rather than being made on the basis of efficiency in the distribution of services, may be made by the municipality in the interest of realizing maximum benefits to itself without regard to extra-territorial impact and regional efficiency.27
32
The second allegation of LP&L's counterclaim,28 is that petitioners conspired with others t engage in sham and frivolous litigation against LP&L before various federal agencies29 and federal courts for the purpose, and with the effect, of delaying approval and construction of LP&L's proposed nuclear electric generating plant. It is alleged that this course of conduct was designed to deprive LP&L of needed financing and to impose delay costs, amounting to $180 million, which would effectively block construction of the proposed project. Such activity may benefit the citizens of Plaquemine and Lafayette by eliminating a competitive threat to expansion of the municipal utilities in still undeveloped areas beyond the cities' territorial limits. But that kind of activity, if truly anticompetitive,30 may impose enormous unnecessary costs on the potential customers of the nuclear generating facility both within and beyond the cities' proposed area of expansion. In addition, it may cause significant injury to LP&L, interfering with its ability to provide expanded service.
33
Another aspect of the public-service argument31 is that because government is subject to political control, the welfare of its citizens is assured through the political process and that federal antitrust regulation is therefore unnecessary. The argument that consumers dissatisfied with the service provided by the municipal utilities may seek redress through the political process is without merit. While petitioners recognize, as they must, that those consumers living outside the municipality who are forced to take municipal service have no political recourse at the municipal level, they argue nevertheless that the customers may take their complaints to the state legislature. It fairly may be questioned whether the consumers in question or the Florida corporation of which LP&L is a subsidiary have a meaningful chance of influencing the state legislature to outlaw on an ad hoc basis whatever anticompetitive practices petitioners may direct against them from time to time. More fundamentally, however, that argument cuts far too broadly; the same argument may be made regarding anticompetitive activity in which any corporation engages. Mulcted consumers and unfairly displaced competitors may always seek redress through the political process. In enacting the Sherman Act, however, Congress mandated competition as the polestar by which all must be guided in ordering their business affairs. It did not leave this fundamental national policy to the vagaries of the political process, but established a broad policy, to be administered by neutral courts,32 which would guarantee every enterprise the right to exercise "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 (1972), without regard to the amount of influence it might have with local or state legislatures.33
34
In 1972, there were 62,437 different units of local government in this country.34 Of this number 23,885 were special districts which had a defined goal or goals for the provision of one or several services,35 while the remaining 38,552 represented the number of counties, municipalities, and townships, most of which have broad authority for general governance subject to limitations in one way or another imposed by the State.36 These units may, and do, participate in and affect the economic life of this Nation in a great number and variety of ways. When these bodies act as owners and providers of services, they are fully capable of aggrandizing other economic units with which they interrelate, with the potential of serious distortion of the rational and efficient allocation of resources, and the efficiency of free markets which the regime of competition embodied in the antitrust laws is thought to engender.37 If municipalities were free to make economic choices counseled solely by their own parochial interests and without regard to their anticompetitive effects, a serious chink in the armor of antitrust protection would be introduced at odds with the comprehensive national policy Congress established.38
35
We conclude that these additional arguments for implying an exclusion for local governments from the antitrust laws must be rejected. We therefore turn to petitioners' principal argument, that "Parker's findings regarding the congressionally intended scope of the Sherman Act apply with equal force to such political subdivisions." Brief for Petitioners 5.
II
36
Plainly petitioners are in error in arguing that Parker held that all governmental entities, whether state agencies or subdivisions of a State, are, simply by reason of their status as such, exempt from the antitrust laws.
37
Parker v. Brown involved the California Agricultural Prorate Act enacted by the California Legislature as a program to be enforced "through action of state officials . . . to restrict competition among the growers [of raisins] and maintain prices in the distribution of their commodities to packers." 317 U.S., at 346, 63 S.Ct., at 311. The Court held that the program was not prohibited by the federal antitrust laws since "nothing in the language of the Sherman Act or in its history . . . suggests that its purpose was to restrain a state or its officers or agents from activities directed by its legislature," id., at 350-351, 63 S.Ct., at 313, and "[t]he state . . . as sovereign, imposed the restraint as an act of government which the Sherman Act did not undertake to prohibit." Id., at 352, 63 S.Ct., at 314.
38
Goldfarb v. Virginia State Bar, 421 U.S. 773, 95 S.Ct. 2004, 44 L.Ed.2d 572 (1975), underscored the significance of Parker 's holding that the determinant of the exemption was whether the challenged action was "an act of government" by the State as "sovereign." Parker repeatedly emphasized that the anticompetitive effects of California's prorate program derived from "the state['s] command"; the State adopted, organized, and enforced the program "in the execution of a governmental policy."39 317 U.S., at 352, 63 S.Ct., at 314. Goldfarb, on the other hand, presented the question "whether a minimum-fee schedule for lawyers published by the Fairfax County Bar Association and enforced by the Virginia State Bar," 421 U.S., at 775, 95 S.Ct., at 2007, violated the Sherman Act. Exemption was claimed on the ground that the Virginia State Bar was "a state agency by law." Id., at 790, 95 S.Ct., at 2014. The Virginia Legislature had empowered the Supreme Court of Virginia to regulate the practice of law and had assigned the State Bar a role in that regulation as an administrative agency of the Virginia Supreme Court. But no Virginia statute referred to lawyers' fees and the Supreme Court of Virginia had taken no action requiring the use of and adherence to minimum-fee schedules. Goldfarb therefore held that it could not be said that the anticompetitive effects of minimum-fee schedules were directed by the State acting as sovereign. Id., at 791, 95 S.Ct., at 2015. The State Bar, though acting within its broad powers, had "voluntarily joined in what is essentially a private anticompetitive activity," id., at 792, 95 S.Ct., at 2015, and was not executing the mandate of the State. Thus, the actions of the State Bar had failed to meet "[t]he threshold inquiry in determining if an anticompetitive activity is state action of the type the Sherman Act was not meant to proscribe . . . ." Id., at 790, 95 S.Ct., at 2015. Go dfarb therefore made it clear that, for purposes of the Parker doctrine not every act of a state agency is that of the State as sovereign.
39
Bates v. State Bar of Arizona, 433 U.S. 350, 97 S.Ct. 2691, 53 L.Ed.2d 810 (1977), involved the actions of a state agency to which the Parker exemption applied. Bates considered the applicability of the antitrust laws to a ban on attorney advertising directly imposed by the Arizona Supreme Court. In holding the antitrust laws inapplicable, Bates noted that "[t]hat 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.' " Id., at 360, 97 S.Ct., at 2697, quoting Goldfarb, supra, 421 U.S., at 791, 95 S.Ct., at 2015. We emphasized, moreover, the significance to our conclusion of the fact that the state policy requiring the anticompetitive restraint as part of a comprehensive regulatory system, was one clearly articulated and affirmatively expressed as state policy, and that the State's policy was actively supervised by the State Supreme Court as the policymaker.40
40
These decisions require rejection of petitioners' proposition that their status as such automatically affords governmental entities the "state action" exemption.41 Parker 's limitation of the exemption, as applied by Goldfarb and Bates, to "official action directed by [the] state," arises from the basis for the "state action" doctrine—that given our "dual system of government in which, under the Constitution, the states are sovereign, save only as Congress may constitutionally subtract from their authority," 317 U.S., at 351, 63 S.Ct., at 313, a congressional purpose to subject to antitrust control the States' acts of government will not lightly be inferred. To extend that doctrine to municipalities would be inconsistent with that limitation. Cities are not themselves sovereign; they do not receive all the federal deference of the States that create them. See, e. g., Edelman v. Jordan, 415 U.S. 651, 667 n. 12, 94 S.Ct. 1347, 1357-1358, 39 L.Ed.2d 662 (1974); Lincoln County v. Luning, 133 U.S. 529, 10 S.Ct. 363, 33 L.Ed. 766 (1890) (political subdivisions not protected by Eleventh Amendment from immunity from suit in federal court). Parker's limitation of the exemption to "official action directed by a state," 317 U.S., at 351, 63 S.Ct., at 313, is consistent with the fact that the States' subdivisions generally have not been treated as equivalents of the States themselves.42 In light of the serious economic dislocation which could result if cities were free to place their own parochial interests above the Nation's economic goals reflected in the antitrust laws, see supra, at 403-408, we are especially unwilling to presume that Congress intended to exclude anticompetitive municipal action from their reach.
41
On the other hand, the fact that municipalities, simply by their status as such, are not within the Parker doctrine, does not necessarily mean that all of their anticompetitive activities are subject to antitrust restraints. Since "[m]unicipal corporations are instrumentalities of the State for the convenient administration of government within their limits." Louisiana ex rel. Folsom v. Mayor of New Orleans, 109 U.S. 285, 287, 3 S.Ct. 211, 213, 27 L.Ed. 936 (1883), the actions of municipalities may reflect state policy. We therefore conclude that the Parker doctrine exempts only anticompetitive conduct engaged in as an act of government by the State as sovereign, or, by its subdivisions, pursuant to state policy to displace competition with regulation or monopoly public service. There remains the question whether the Court of Appeals erred in holding that further inquiry should be made to determine whether petitioners' actions were directed by the State.
III
42
The petitioners and our Brother STEWART's dissent focus their arguments upon the fact that municipalities may exercise the sovereign power of the State, concluding from this that any actions which municipalities take necessarily reflect state policy and must therefore fall within the Parker doctrine. But, the fact that the governmental bodies sued are cities, with substantially less than statewide jurisdiction, has significance. When cities, each of the same status under state law, are equally free to approach a policy decision in their own way, the anticompetitive restraints adopted as policy by any one of them, may express its own preference, rather than that of the State.43 Therefore, in the absence of evidence that the State authorized or directed a given municipality to act as it did, the actions of a particular city hardly can be found to be pursuant to "the state['s] command," or to be restraints that "the state . . . as sovereign" imposed. 317 U.S., at 352, 63 S.Ct., at 314. The most44 that could be said is that state policy may be neutral. To permit municipalities to be shielded from the antitrust laws in such circumstances would impair the goals Congress sought to achieve by those laws, see supra, at 403-408, without furthering the policy underlying the Parker "exemption." This does not mean, however, that a political subdivision necessarily must be able to point to a specific, detailed legislative authorization before it properly may assert a Parker defense to an antitrust suit. While a subordinate governmental unit's claim to Parker immunity is not as readily established as the same claim by a state government sued as such, we agree with the Court of Appeals that an adequate state mandate for anticompetitive activities of cities and other subordinate governmental units exists when it is found "from the authority given a governmental entity to operate in a particular area, that the legislature contemplated the kind of action complained of."45 532 F.2d, at 434.
43
The Parker doctrine, so understood, preserves to the States their freedom under our dual system of federalism to use their municipalities to administer state regulatory policies free of the inhibitions of the federal antitrust laws without at the same time permitting purely parochial interests to disrupt the Nation's free-market goals.
44
Our Brother STEWART's dissent argues that the result we reach will "greatly . . . impair the ability of a State to delegate governmental power broadly to its municipalities." Post, at 438 (footnote omitted). That, with respect, is simply hyperbole. Our decision will render a State no less able to allocate governmental power between itself and its political subdivisions. It means only that when the State itself has not directed or authorized an anticompetitive practice, the State's subdivisions in exercising their delegated power must obey the antitrust laws. The dissent notwithstanding, it is far too late to argue that a State's desire to insulate anticompetitive practices not imposed by it as an act of government falls within the Parker doctrine. Schwegmann Bros. v. Calvert Distillers Corp., 341 U.S. 384, 71 S.Ct. 745, 95 L.Ed. 1035 (1951). Moreover, by characterizing the Parker exemption as fully applicable to local governmental units simply by virtue of their status as such, the approach taken by the dissent would hold anticompetitive municipal action free from federal antitrust enforcement even when state statutes specifically provide that municipalities shall be sub ect to the antitrust laws of the United States. See generally La.Rev.Stat.Ann. § 33:1334(G) (West Supp.1977), quoted in n. 44, supra. That result would be a perversion of federalism.46
45
Today's decision does not threaten the legitimate exercise of governmental power, nor does it preclude municipal government from providing services on a monopoly basis. Parker and its progeny make clear that a State properly may, as States did in Parker and Bates, direct or authorize its instrumentalities to act in a way which, if it did not reflect state policy, would be inconsistent with the antitrust laws. Compare Bates, with Goldfarb. True, even a lawful monopolist may be subject to antitrust restraints when it seeks to extend or exploit its monopoly in a manner not contemplated by its authorization. Cf. Otter Tail Power Co. v. United States, 410 U.S. 366, 377-382, 93 S.Ct. 1022, 1029-1032, 35 L.Ed.2d 359 (1973).47 But assuming that the municipality is authorized to provide a service on a monopoly basis, these limitations on municipal action48 will not hobble the execution of legitimate governmental programs.
46
Affirmed.
47
Mr. Justice MARSHALL, concurring.
48
I agree with THE CHIEF JUSTICE, post, at 425-426, that any implied "state action" exemption from the antitrust laws should be no broader than is necessary to serve the State's legitimate purposes. I join the plurality opinion, however, because the test there established, relating to whether it is "state policy to displace competition," ante, at 413, incorporates within it the core of THE CHIEF JUSTICE's concern. As the plurality opinion makes clear, it is not enough that the State "desire[s] to insulate anticompetitive practices." Ante, at 416. For there to be an antitrust exemption, the State must "impose" the practices "as an act of government." Ibid. State action involving more anticompetitive restraint than necessary to effectuate governmental purposes must be viewed as inconsistent with the plurality's approach.
49
Mr. CHIEF JUSTICE BURGER, concurring in the Court's opinion in Part I and in the judgment.
50
This case turns, or ought to, on the District Court's explicit conclusion,1 unchallenged here, that "[t]hese plaintiff cities are engaging in what is clearly a business activity; activity in which a profit is realized." There is nothing in Parker v. Brown, 317 U.S. 341, 63 S.Ct. 307, 87 L.Ed. 315 (1943), or its progeny, which suggests that a proprietary enterprise with the inherent capacity for economically disruptive anticompetitive eff cts should be exempt from the Sherman Act merely because it is organized under state law as a municipality. Parker was a case involving a suit against state officials who were administering a state program which had the conceded purpose of replacing competition in a segment of the agricultural market with a regime of governmental regulation. The instant lawsuit is entirely different. It arises because respondent took the perfectly natural step of answering a federal antitrust complaint— filed by competitors—with a counterclaim alleging serious violations of the Sherman Act.
51
There is nothing in this record to support any assumption other than that this is an ordinary dispute among competitors in the same market. It is true that petitioners are municipalities, but we should not ignore the reality that this is the only difference between the Cities and any other entrepreneur in the economic community. Indeed, the injuries alleged in petitioners' complaint read as a litany of economic woes suffered by a business which has been unfairly treated by a competitor:
52
"As a direct and proximate result of the unlawful conduct hereinabove alleged, plaintiffs have: (1) been prevented from and continue to be prevented from profitably expanding their businesses ; (2) lost and continue to lose the profits which would have resulted from the operation of an expanded, more efficient and lower cost business ; (3) been deprived of and continue to be deprived of economies in the financing and operation of their systems; (4) sustained and continue to sustain losses in the value of their businesses and properties ; and (5) incurred and continue to incur excessive costs and expenses they otherwise would not have incurred." App. 14. (Emphasis added.)
53
It strikes me as somewhat remarkable to suggest that the same Congress which "meant to deal comprehensively and effectively with the evils resulting from contracts, combinations and conspiracies in restraint of trade," Atlantic Cleaner & Dyers, Inc. v. United States, 286 U.S. 427, 435, 52 S.Ct. 607, 609, 76 L.Ed. 1204 (1932), would have allowed these petitioners to complain of such economic damage while baldly asserting that any similar harms they might unleash upon competitors or the economy are absolutely beyond the purview of federal law. To allow the defense asserted by the petitioners in this case would inject a wholly arbitrary variable into a "fundamental national economic policy." Carnation Co. v. Pacific Conference, 383 U.S. 213, 218, 86 S.Ct. 781, 784, 15 L.Ed.2d 709 (1966), which strongly disfavors immunity from its scope. See United States v. Philadelphia Nat. Bank, 374 U.S. 321, 350-351, 83 S.Ct. 1715, 1734-1735, 10 L.Ed.2d 915 (1963); California v. FPC, 369 U.S. 482, 485, 82 S.Ct. 901, 903, 8 L.Ed.2d 54 (1962).
54
As I indicated, concurring in Cantor v. Detroit Edison Co., 428 U.S. 579, 604, 96 S.Ct. 3110, 3123, 49 L.Ed.2d 1141 (1976), "in interpreting Parker, the Court has heretofore focused on the challenged activity, not upon the identity of the parti § to the suit." Such an approach is surely logical in light of the fact that the Congress which passed the Sherman Act very likely never considered the kinds of problems generated by Parker and the cases which have arisen in its wake. E. g., Bates v. State Bar of Arizona, 433 U.S. 350, 97 S.Ct. 2691, 53 L.Ed.2d 810 (1977); Cantor, supra; Goldfarb v. Virginia State Bar, 421 U.S. 773, 95 S.Ct. 2004, 44 L.Ed.2d 572 (1975); see Slater, Antitrust and Government Action: A Formula for Narrowing Parker v. Brown, 69 Nw.U.L.Rev. 71, 84 (1974). It is even more dubious to assume that the Congress specifically focused its attention on the possible liability of a utility operated by a subdivision of a State. Not only were the States generally considered free to regulate commerce within their own borders, see, e. g., United States v. E. C. Knight Co., 156 U.S. 1, 15 S.Ct. 249, 39 L.Ed. 325 (1895); Kidd v. Pearson, 128 U.S. 1, 9 S.Ct. 6, 32 L.Ed. 346 (1888), but manufacturing enterprises, in and of themselves, were not taken to be interstate commerce. Id., at 20, 9 S.Ct., at 9.
55
By the time Parker was decided, however, this narrow view of "interstate commerce" had broadened via the "affection doctrine" to include intrastate events which had a sufficient effect on interstate commerce. See NLRB v. Fainblatt, 306 U.S. 601, 605, and n. 1, 59 S.Ct. 668, 671, 83 L.Ed. 1014 (1939); cf. Hospital Building Co. v. Rex Hospital Trustees, 425 U.S. 738, 743, 96 S.Ct. 1848, 1852, 48 L.Ed.2d 338 (1976). Given this development, and the Court's interpretation of "person" or "persons" in the Sherman Act to include States and municipalities, ante, at 394-397, along with the trend of allowing the reach of the Sherman Act to expand with broadening conceptions of congressional power under the Commerce Clause, see Rex Hospital Trustees, supra, at 743 n. 2, 96 S.Ct., at 1852, one might reasonably wonder how the Court reached its result in Parker.
56
The holding in Parker is perfectly understandable, though, in light of the historical period in which the case was decided. The Court had then but recently emerged from the era of substantive due process, and was undoubtedly not eager to commence a new round of invalidating state regulatory laws on federal principles. See Verkuil, State Action, Due Process and Antitrust: Reflections on Parker v. Brown, 75 Colum.L.Rev. 328, 331-334 (1975). Responding to this concern, the Parker Court's interpretation of legislative intent reflects a "polic[y] of signal importance in our national traditions and governmental structure of federalism." Ante, at 400.
57
"In a dual system of government in which, under the Constitution, the states are sovereign, save only as Congress may constitutionally subtract from their authority, an unexpressed purpose to nullify a state's control over its officers and agents is not lightly to be attributed to Congress." Parker, 317 U.S., at 351, 63 S.Ct., at 313.
58
The Parker decision was thus firmly grounded on principles of federalism, the ambit of its inquiry into congressional purpose being defined by the Court's view of the requirements of "a dual system of government."2
59
This mode of analysis is as sound today as it was then, and I am surprised that neither the plurality opinion nor the dissents focus their attention on this aspect of Parker. Indeed, it is even more puzzling that so much judicial energy is expended here on deciding a question not presented by the parties or by the facts of this case: that is, to what extent the Sherman Act impinges generally upon the monopoly powers of state and local governments. As I suggested at the outset, the issue here is whether the Sherman Act reaches the proprietary enterprises of municipalities.3
60
The answer to the question presented ought not to be so difficult. When Parker was decided there was certainly no question that a State's operation of a common carrier, even without profit and as a "public function," would be subject to federal regulation under the Commerce Clause. United States v. California, 297 U.S. 175, 183-186, 56 S.Ct. 421, 423-425, 80 L.Ed. 567 (1936) ("[W]e think it unimportant to say whether the state conducts its railroad in its 'sovereign' or in its 'private' capacity." Id., at 183, 56 S.Ct., at 424); see Parden v. Terminal R. Co., 377 U.S. 184, 189-193, 84 S.Ct. 1207, 1211-1213, 12 L.Ed.2d 233 (1964); California v. Taylor, 353 U.S. 553, 568, 77 S.Ct. 1037, 1045, 1 L.Ed.2d 1034 (1957). Likewise, it had been held in Ohio v. Helvering, 292 U.S. 360, 54 S.Ct. 725, 78 L.Ed. 1307 (1934), that a State, upon engaging in business, became subject to a federal statute imposing a tax on those dealing in intoxicating liquors, although States were not specifically mentioned in the statute. In short, the Court had already recognized, for purposes of federalism, the difference between a State's entrepreneurial personality and a sovereign's decision—as in Parker —to replace competition with regulation.4
61
I see nothing in the last 35 years to question this conclusion. In fact, the Court's recent decision in National League of Cities v. Usery, 426 U.S. 833, 96 S.Ct. 2465, 49 L.Ed.2d 245 (1976), which rekindled a commitment to tempering the Commerce Clause power with the limits imposed by our structure of government, employs language strikingly similar to the words of Mr. Chief Justice Stone in Parker :
62
"It is one thing to recognize the authority of Congress to enact laws regulating individual businesses necessarily subject to the dual sovereignty of the government of the Nation and of the State in which they reside. It is quite another to uphold a similar exercise of congressional authority directed, not to private citizens, but to States as States. We have repeatedly recognized that there are attributes of sovereignty attaching to every state government which may not be impaired by Congress, not because Congress may lack an affirmative grant of legislative authority to reach the matter, but because the Constitution prohibits it from exercising the authority in that manner." 426 U.S., at 845, 96 S.Ct., at 2470.
63
The National League of Cities opinion focused its delineation of the " 'attributes of sovereignty" alluded to above on a determination as to whether the State's interest involved "functions essential to separate and independent existence.' " Ibid., quoting Coyle v. Oklahoma, 221 U.S. 559, 580, 31 S.Ct. 688, 695, 55 L.Ed. 853 (1911). It should be evident, I would think, that the running of a business enterprise is not an integral operation in the area of traditional government functions. See Alfred Dunhill of London, Inc. v. Cuba, 425 U.S. 682, 695-696, 96 S.Ct. 1854, 1861-1862, 48 L.Ed.2d 301 (1976); Bank of United States v. Planters' Bank of Georgia, 9 Wheat. 904, 907, 6 L.Ed. 244 (1824). Indeed, the reaffirmance of the holding in United States v. California, supra, by National League of Cities, supra, 426 U.S., at 854 n. 18, 96 S.Ct., at 2475, strongly supports this understanding. Even if this proposition were not generally true, the particular undertaking at issue here—the supplying of electric service—has not traditionally been the prerogative of the State. Jackson v. Metropolitan Edison Co., 419 U.S. 345, 352-353, 95 S.Ct. 449, 454, 42 L.Ed.2d 477 (1974).5
64
Following the path outlined above should lead us to a logical destination: Petitioners should be treated, for purposes of applying the federal antitrust laws, in essentially the same manner as respondent. This is not to say, of course, that the conduct in which petitioners allegedly engaged is automatically subject to condemnation under the Sherman Act. As the Court recognized in Cantor v. Detroit Edison Co., 428 U.S., at 592-598, 96 S.Ct., at 3117-3121, state-regulated utilities pose special analytical problems underParker. It may very well be, for example, that a State, acting as sovereign, has imposed a system of governmental control in order "to avoid the consequences of unrestrained competition." Cantor, supra, 428 U.S., at 595, 96 S.Ct., at 3119. This is precisely what occurred in Parker, and there is no question that a utility's action taken pursuant to the command of such an "act of government." Parker, 317 U.S., at 352, 63 S.Ct., at 314, would not be prohibited by the Sherman Act.
65
I agree with the plurality then, that "[t]he threshold inquiry in determining if an anticompetitive activity is state action of the type the Sherman Act was not meant to proscribe is whether the activity is required by the State acting as sovereign." Goldfarb, 421 U.S., at 790, 95 S.Ct., at 2015. (Emphasis added.) But this is only the first, not the final step of the inqui y, for Cantor recognized that "all economic regulation does not necessarily suppress competition." 428 U.S., at 595, 96 S.Ct., at 3119. "There is no logical inconsistency between requiring such a firm to meet regulatory criteria insofar as it is exercising its natural monopoly powers and also to comply with antitrust standards to the extent that it engages in business activity in competitive areas of the economy." Id., at 596, 96 S.Ct., at 3119.
66
I would therefore remand, directing the District Court to take an additional step beyond merely determining—as the plurality would—that any area of conflict between the State's regulatory policies and the federal antitrust laws was the result of a "state policy to displace competition with regulation or monopoly public service."6 Ante, at 413. This supplemental inquiry would consist of determining whether the implied exemption from federal law "was necessary in order to make the regulatory Act work, 'and even then only to the minimum extent necessary.' " 428 U.S., at 597, 96 S.Ct., at 3120.7
67
Mr. Justice STEWART, with whom Mr. Justice WHITE, Mr. Justice BLACKMUN,* and Mr. Justice REHNQUIST join, dissenting.
68
In Parker v. Brown, 317 U.S. 341, 63 S.Ct. 307, 87 L.Ed. 315, a California statute restricted competition among raisin growers in order to keep the price of raisins artificially high. The Court found that California's program did not violate the antitrust laws but was "an act of government which the Sherman Act did not undertake to prohibit." Id., at 352, 63 S.Ct., at 314. Parker v. Brown thus made clear that "where a restraint upon trade or monopolization is the result of valid governmental action, as opposed to private action, no violation of the [Sherman] Act can be made out." Eastern Railroad Presidents Conf. v. Noerr Motor Freight, Inc., 365 U.S. 127, 136, 81 S.Ct. 523, 529, 5 L.Ed.2d 464.
69
The principle of Parker v. Brown controls this case. The petitioners are governmental bodies, not private persons, and their actions are "act[s] of government" which Parker v. Brown held are not subject to the Sherman Act. But instead of applying the Parker doctrine, the Court today imposes new and unjustifiable limits upon it. According to the plurality, governmental action will henceforth be immune from the antitrust laws1 only when "authorized or directed" by the State "pursuant to state policy to displace competition with regulation or monopoly public service." Ante, at 414, 413. Such a "direction" from the State apparently will exist only when it can be shown " 'from the authority given a governmental entity to operate in a particular area, that the legislature contemplated the kind of action complained of.' " Ante, at 415. By this exclusive focus on a legislative mandate the plurality has effectively limited the governmental action immunity of the Parker case to the acts of a state legislature. This is a sharp and I think unjustifiable departure from our prior cases.
70
THE CHIEF JUSTICE adopts a different approach, at once broader and narrower than the plurality's. In his view, municipalities are subject to antitrust liability when they engage in "proprietary enterprises," ante, at 422, but apparently retain their antitrust immunity for other types of activity. But a city engaged in proprietary activity is to be treated as if it were a private corporation: that is, it is immune from the antitrust laws only if it shows not merely that its action was " 'required by the State acting as sovereign' " but also that such immunity is " 'necessary in order to make the [State's] regulatory Act work.' " Ante, at 425-426. THE CHIEF JUSTICE's approach seems to me just as mistaken as the plurality's.
71
* The fundamental error in the opinions of the plurality and THE CHIEF JUSTICE is their failure to recognize the difference between private activities authorized or regulated by government on the one hand, and the actions of government itself on the other.
A.
72
In determining whether the actions of a political subdivision of a State as well as those of a state legislature are immune from the Sherman Act, we must interpret the provisions of the Act "in the light of its legislative history and of the particular evils at which the legislation was aimed." Apex Hosiery Co. v. Leader, 310 U.S. 469, 489, 60 S.Ct. 982, 990, 84 L.Ed. 1311. Those "particular evils" did not include acts of governmental bodies. Rather, Congress was concerned with attacking concentrations of private economic power unresponsive to public needs, such as "these great trusts, these great corporations, these large moneyed institutions." 21 Cong.Rec. 2562 (1890).2
73
Recognizing this congressional intent, the Court in Parker v. Brown, held that the antitrust laws apply to private and not governmental action. The program there at issue was in fact established by California's legislature, and not by one of its political subdivisions. But the Court nowhere held that the actions of municipal governments should not equally be immune from the antitrust laws. On the contrary, it expressly equated "the state or its municipality." 317 U.S. at 351, 63 S.Ct., at 313. The Parker opinion repeatedly and carefully3 emphasized that California's program was not the action of "private persons, individual or corporate." Id., at 350, 63 S.Ct., at 313.4 The distinction established in Parker v. Brown was not one between actions of a state legislature and those of other governmental units. Rather, the Court drew the line between private action and governmental action.
74
There can be no doubt on which side of this line the petitioners' actions fall. "Municipal corporations are instrumentalities of the State for the convenient administration of government within their limits." Louisiana ex rel. Folsom v. Mayor of New Orleans, 109 U.S. 285, 287, 3 S.Ct. 211, 213, 27 L.Ed. 936; cf. Reynolds v. Sims, 377 U.S. 533, 575, 84 S.Ct. 1362, 1388, 12 L.Ed.2d 506.5 They have only such powers as are delegated them by the State of which they are a subdivision, and when they act they exercise the State's sovereign power. Avery v. Midland County, 390 U.S. 474, 480, 88 S.Ct. 1114, 1118, 20 L.Ed.2d 45; Breard v. Alexandria, 341 U.S. 622, 640, 71 S.Ct. 920, 931, 95 L.Ed. 1233. City governments are not unaccountable to the public but are subject to direct popular control through their own electorates and through the state legislature.6 They are thus a far cry from the private accumulations of wealth that the Sherman Act was intended to regulate.
B
75
The plurality today advances two reasons for holding nonetheless that the Parker doctrine is inapplicable to municipal governments. First, the plurality notes that municipalities cannot cla m the State's sovereign immunity under the Eleventh Amendment. Ante, at 412. But this is hardly relevant to the question of whether they are within the reach of the Sherman Act. That question must be answered by reference to congressional intent, and not constitutional principles that apply in entirely different situations.7 And if constitutional analogies are to be looked to, a decision much more directly related to this case than those under the Eleventh Amendment isNational League of Cities v. Usery, 426 U.S. 833, 96 S.Ct. 2465, 49 L.Ed.2d 245. That case, like this one, involved an exercise of Congress' power under the Commerce Clause, and held that States and their political subdivisions must be given equal deference. Id., at 855-856, n. 20, 96 S.Ct., at 2476. The plurality does not advance any basis for its disregard of National League of Cities and its reliance instead on the basically irrelevant body of law under the Eleventh Amendment.
76
Secondly, the plurality relies on Goldfarb v. Virginia State Bar, 421 U.S. 773, 95 S.Ct. 2004, 44 L.Ed.2d 572. The Goldfarb case, however, did not overrule Parker v. Brown but rather applied it. Goldfarb concerned a scheme regulating economic competition among private parties, namely, lawyers. The Court held that this "private anticompetitive activity," 421 U.S., at 792, 95 S.Ct., at 2015, could not be sheltered under the umbrella of the Parker doctrine unless it was compelled by the State. Since the bar association and State Bar could show no more than that their minimum-fee schedule "complemented" actions of the State, id., at 791, 95 S.Ct., at 2015, the scheme was not immune from the antitrust laws. Cf. Schwegmann Bros. v. Calvert Distillers Corp., 341 U.S. 384, 71 S.Ct. 745, 95 L.Ed. 1035.
77
Unlike Goldfarb, this case does not involve any anticompetitive activity by private persons. As noted in Bates v. State Bar of Arizona, 433 U.S. 350, 361, 97 S.Ct. 2691, 2697, 53 L.Ed.2d 810, actions of governmental bodies themselves present "an entirely different case" falling squarely within the rule of Parker v. Brown. Although the State Bar in Goldfarb was "a state agency for some limited purposes," 421 U.S., at 791, 95 S.Ct., at 2015, the price fixing it fostered was for the private benefit of its members and its actions were essentially those of a private professional group. Cf. Asheville Tobacco Board of Trade, Inc. v. FTC, 263 F.2d 502, 508-510 (CA4). Unlike a city, the Virginia State Bar surely is not "a political subdivision of the State."8
78
By requiring that a city show a legislative mandate for its activity, the plurality today blurs, if indeed it does not erase, this logical distinction between private and governmental action. In Goldfarb and in Cantor v. Detroit Edison Co., 428 U.S. 579, 96 S.Ct. 3110, 49 L.Ed.2d 1141, the Court held that private action must be compelled by the state legislature in order to escape the reach of the Sherman Act. State compulsion is an appropriate requirement when private persons claim that their anticompetitive actions are not their own but the State's, since a State cannot immunize private anticompetitive conduct merely by permitting it.9 But it is senseless to require a showing of state compulsion when the State itself cts through one of its governmental subdivisions. See New Mexico v. American Petrofina, Inc., 501 F.2d 363, 369-370 (CA9).
C
79
The separate opinion of THE CHIEF JUSTICE does not rely on any distinctions between States and their political subdivisions. It purports to find a simpler reason for subjecting the petitioners to antitrust liability despite the fact that they are governmental bodies, namely, that Parker v. Brown does not protect "a State's entrepreneurial personality." Ante, at 422.10 But this distinction is no more substantial a basis for disregarding the governmental action immunity in this case than the reasons advanced by the plurality.
80
A State may choose to regulate private persons providing certain goods or services, or it may provide the goods and services itself. The State's regulatory body in the former case, or a state-owned utility in the latter, will necessarily make economic decisions. These decisions may be responsive to similar concerns, and they may have similar anticompetitive effects.11 Yet, according to THE CHIEF JUSTICE, the former type of governmental decision is immune from antitrust liability while the latter is not.
81
There is no basis for this distinction either in the Sherman Act itself or in our prior cases interpreting it. To the contrary, Parker v. Brown established that governmental actions are not regulated by the Sherman Act. See supra, at 428-430. And, as this Court has previously said:
82
" 'Government is not partly public or partly private, depending upon the governmental pedigree of the type of a particular activity or the manner in which the Government conducts it.' Federal Crop Insurance Corp. v. Merrill, 332 U.S. 380, 383-384, 68 S.Ct. 1, 92 L.Ed. 10. On the other hand, it is hard to think of any governmental activity on the 'operational level,' our present concern, which is 'uniquely governmental,' in the sense that its kind has not at one time or another been, or could not conceivably be, privately performed." Indian Towing Co. v. United States, 350 U.S. 61, 67-68, 76 S.Ct. 122, 126, 100 L.Ed. 48.
83
Nonetheless THE CHIEF JUSTICE would treat some governmental actions as governmental for purposes of the antitrust laws, and some as if they were not governmental at all.
84
Moreover, the scope of the immunity envisioned by THE CHIEF JUSTICE is virtually impossible to determine. The distinction between "proprietary" and "governmental" activities has aptly been described as a "quagmire." Id., at 65, 76 S.Ct., at 124. The "distinctions [are] so finespun and capricious as to be almost incapable of being held in the mind for adequate formulation." Id., at 68, 76 S.Ct., at 126. The separate opinion of THE CHIEF JUSTICE does nothing to make these distinctions any more substantial or understandable.12 Indeed, even a moment's consideration of the range of services provided today by governments shows how difficult it is to determine whether or not they are "proprietary." For example, if a city or State decides to provide water service to its citizens at cost on a monopoly basis, is its action to be characterized as "proprietary"? Whether it is "proprietary" or not, it is surely an act of government, as are the petitioners' actions in this case. Cf. Lowenstein v. Evans, 69 F. 908 (CC S.C.).13 But THE CHIEF JUSTICE, like the plurality, ignores what seems to me the controlling distinction in this case, that between private and governmental action.
II
85
The Court's decision in this case marks an extraordinary intrusion into the operation of state and local government in this country. Its impact can hardly be overstated.
A.
86
Under our federal system, a State is generally free to allocate its governmental power to its political subdivisions as it wishes.14 A State may decide to permit its municipalities to exercise its police power without having to obtain approval of each law from the legislature.15 Such local self-government serves important state interests. It allows a state legislature to devote more time to statewide problems without being burdened with purely local matters, and allows municipalities to deal quickly and flexibly with local problems. But today's decision, by demanding extensive legislative control over municipal action, will necessarily diminish the extent to which a State can share its power with autonomous local governmental bodies.
87
This will follow from the plurality's emphasis on state legislative action, and the vagueness of the criteria it announces.16 First, it is not clear from the plurality opinion whether a municipal government's actions will be immune from the Sherman Act if they are merely "authorized" by a state legislature or whether they must be legislatively "directed" in order to enjoy immunity. While the plurality uses these terms interchangeably, they can have very different meanings. See Cantor v. Detroit Edison, Co., 428 U.S., at 592-593, 96 S.Ct., at 3117-3118. A municipality that is merely "authorized" by a state statute to provide a monopoly service thus cannot be certain it will not be subject to antitrust liability if it does so.
88
Second, the plurality gives no indication of how specifically the legislature's "direction" must relate to the "action complained of." Reference to the facts of this case will show how elusive the plurality's test is. Stripped to its essentials the counterclaim alleged that the petitioners engaged in sham litigation, maintained their monopolies by debenture covenants, foreclosed competition by long-term supply contracts, and tied the sale of gas and water to the sale of electricity. Broadly speaking, these actions could be characterized as bringing lawsuits, issuing bonds, and providing electric and gas service, all of which are activities authorized by state statutes.17 But in affirming the judgment of the Court of Appeals the Court makes evident that it does not consider these statutes alone a sufficient "mandate" to the cities.
89
On the other hand, the plurality states that a city need not "point to a specific, detailed legislative authorization before it properly may assert a Parker defense to an antitrust suit." Ante, at 415. Thus, it seems that the petitioners need not identify a statute compelling each lawsuit, each contract, and each debenture covenant.18 But what intermediate showing of legislative authorization, approval, or command will meet the plurality's test I am unable to fathom.19
90
Finally, state statutes often are enacted with little recorded legislative history,20 and the bare words of a statute will often be unilluminating in interpreting legislative intent. For example, do the Louisiana statutes permitting the petitioners to operate public utilities21 "contemplate" that the petitioners might tie the sale of gas to the sale of electricity? Do those statutes, indeed, "contemplate" that electric service will be provided to city residents on a monopoly basis? Without legislative history or relevant statutory language, any answer to these questions would be purely a creation of judicial imagination.22
91
As a practical result of the uncertainties in today's opinions,23 and of the plurality's emphasis on state legislative action, a prudent municipality will probably believe itself compelled to seek passage of a state statute requiring it to engage in any activity which might be considered anticompetitive. Each time a city grants an exclusive franchise, or chooses to provide a service itself on a monopoly basis, or refuses to grant a zoning variance to a business,24 or even—as alleged in this case brings litigation on behalf of its citizens, state legislative action will be necessary to ensure that a federal court will not subsequently decide that the activity was not "contemplated" by the legislature. Thus, the effect of today's decision is greatly to impair the ability of a State to delegate governmental power broadly to its municipalities.25 Such extensive interference with the fundamentals of state government is not a proper function of the federal judiciary.26
B
92
Today's decision will cause excessive judicial interference not only with the procedures by which a State makes its governmental decisions, but with their substance as well. States should be "accorded wide latitude in the regulation of their local economies," New Orleans v. Dukes, 427 U.S. 297, 303, 96 S.Ct. 2513, 2517, 49 L.Ed.2d 511; and in "the manner in which they will structure delivery of those governmental services which their citizens require." National League of Cities v. Usery, 426 U.S., at 847, 96 S.Ct., at 2472. The antitrust liability the Court today imposes on municipal governments will sharply limit that latitude.
93
First, the very vagueness and uncertainty of the new test for antitrust immunity is bound to discourage state agencies and subdivisions in their experimentation with innovative social and economic programs.27 In the exercise of their powers local governmen al entities often take actions that might violate the antitrust laws if taken by private persons, such as granting exclusive franchises, enacting restrictive zoning ordinances, and providing public services on a monopoly basis. But a city contemplating such action in the interest of its citizens will be able to do so after today only at the risk of discovering too late that a federal court believes that insufficient statutory "direction" existed, or that the activity is "proprietary" in nature.
94
Second, the imposition of antitrust liability on the activities of municipal governments will allow the sort of wide-ranging inquiry into the reasonableness of state regulations that this Court has forsworn.28 For example, in City of New Orleans v. Dukes, supra, a city ordinance which, to preserve the character of a historic area, prohibited the sale of food from pushcarts unless the vendor had been in business for at least eight years, was challenged under the Equal Protection Clause of the Fourteenth Amendment. The Court upheld the constitutional validity of the ordinance. But it now appears that if Dukes had proceeded under the antitrust laws and claimed that the ordinance was an unreasonably anticompetitive limit on the number of pushcart vendors, he might well have prevailed unless New Orleans could establish that the Louisiana Legislature "contemplated" the exclusion of all but a few pushcart vendors from the historic area. The "wide latitude" of the States "in the regulation of their local economies," exercised in Dukes by the city to which this power to regulate had been delegated, could thus be wholly stifled by the application of the antitrust laws.
C
95
Finally, today's decision will impose staggering costs on the thousands of municipal governments in our country. In this case, a not atypical antitrust action, the respondent claimed that it had suffered damages of $180 million as a result of only one of the antitrust violations it alleged. Trebled, this amounts to $540 million on this claim alone, to be recovered from cities with a combined population (in 1970) of about 75,000.29 A judgment of this magnitude would assure bankruptcy for almost any municipality against which it might be rendered.30 Even if the petitioners ultimately prevail, their citizens will have to bear the rapidly mounting costs of antitrust litigation through increased taxes or decreased services.31 The prospect of a city closing its schools, discharging its policemen, and curtailing its fire department in order to defend an antitrust suit would surely dismay the Congress that enacted the Sherman Act.32
96
For all of the reasons discussed in this opinion, I respectfully dissent.
97
Mr. Justice BLACKMUN, dissenting.
98
I join Mr. Justice STEWART's dissent with the exception of Part II-B, but wish to note that I do not take his opinion as reaching the question whether petitioners should be immune under the Sherman Act even if found to have been acting in concert with private parties. To grant immunity to municipalities in such a circumstance would go beyond the protections previously accorded officials of the States themselves. See Parker v. Brown, 317 U.S. 341, 351-352, 63 S.Ct. 307, 314, 87 L.Ed. 315 (1943) ("[W]e have no question of the state or its municipality becoming a participant in a private agreement or combination by others for restraint of trade, cf. Union Pacific R. Co. v. United States, 313 U.S. 450, 61 S.Ct. 1064, 85 L.Ed. 1453"). The Court of Appeals did not have the opportunity to rule on how a "conspiracy with private parties" exception to municipalities' general immunity should be limited, if indeed such an exception is appropriate at all. If the view that municipalities are not subject to the full reach of Sherman Act liability had commanded a majority, a remand for consideration of this more limited exception would be in order.
99
In light of the fact that the plurality and THE CHIEF JUSTICE have concluded that municipalities should be subject to broad Sherman Act liability, I must question the nonchalance with which the Court puts aside the question of remedy. Ante, at 402, and n.22. It is a grave act to make governmental units potentially liable for massive treble damages when, however "proprietary" some of their activities may seem, they have fundamental responsibilities to their citizens for the provision of life-sustaining services such as police and fire protection. The several occasions in the past when the Court has found that Congress intended to subject municipalities and States to liability as "persons" or "corporations" do not provide the support for today's holding that the plurality opinion would pretend. Ante, at 400-402, and nn. 19-21. The Court cites previous constructions of the Elkins Act; the federal tax on sellers of alcoholic beverages; and the Shipping Act, 1916. But the financial penalties available under those Acts do not even approach the magnitude of the treble-damages remedy provided by the antitrust laws.1 Nor has the Court come to grips with the plainly mandatory language of § 4 of the Clayton Act, 15 U.S.C. § 15 (1976 ed.): "Any person who shall be injured in his business or property by reason of anything forbidden in the antitrust laws . . . shall recover threefold the damages by him sustained" (emphasis supplied), and the repeated occasions on which Congress has rejected proposals to make the treble-damages remedy discretionary.2 It is one thing to leave open the question of remedy if there is a conceivable defense to damages whose theory is consistent with the mandatory language of the Clayton Act (e. g., in the case of private utilities subject to state tariffs, that their conduct was required by state law and hence was involuntary). See Cantor v. Detroit Edison Co., 428 U.S. 579, 614-615, n.6, 96 S.Ct. 3110, 3128-3129, 49 L.Ed.2d 1141 (1976) (opinion concurring in judgment). It is quite another to delay the question of remedy in the absence of any suggested basis for a defense, especially where the prospect of insolvency for petitioner cities would so threaten the welfare of their inhabitants. The sensible course, it seems to me, is to consider the range of liability in light of the range of defendants for whom Sherman Act penalties would be appropriate.
1
See La.Const., Art. 6, §§ 2, 7(A) (effective Jan. 1, 1975); La.Const., Art. XIV, § 40(d) (1921) (effective prior to Jan. 1, 1975); see generally La.Rev.Stat.Ann. §§ 33:621, 33:361, 33:506 (West 1951).
2
La.Rev.Stat.Ann. § 33:1326 (West 1951); §§ 33:4162, 33:4163 (West 1950).
3
The complaint named as parties defendant Middle-South Utilities, Inc., a Florida corporation of which LP&L is a subsidiary, Central Louisiana Electric Co., Inc., and Gulf States Utilities, Louisiana and Texas corporations respectively, engaged in the generation, transmission, and sale of electric power at wholesale and retail in Louisiana.
4
LP&L does not allege that it directly competes with the city of Lafayette, but does allege that the city of Plaquemine imposed tying arrangements which injured it. See Respondent's Second Amended Counterclaim, App. 33-34; Affidavit of J. M. Wyatt, Senior Vice President of LP&L, id., at 37.
5
Petitioners' complaint charged that the defendants conspired to restrain trade and attempted to monopolize and have monopolized the generation, transmission, and distribution of electric power by preventing the construction and operation of competing utility systems, by improperly refusing to wheel power, by foreclosing supplies from markets served by defendants, by engaging in boycotts against petitioners, and by utilizing sham litigation and other improper means to prevent the financing of construction of electric generation facilities beneficial to petitioners.
6
The counterclaim, as amended, alleged that the petitioners, together with a nonparty electric cooperative, had conspired to engage in sham litigation against LP&L to prevent the financing with the purpose and effect of delaying or preventing the construction of a nuclear electric-generating plant, to eliminate competition within the municipal boundaries by use of covenants in their respective debentures, to exclude competition in certain markets by using long-term supply agreements, and to displace LP&L in certain areas by requiring customers of LP&L to purchase electricity from petitioners as a condition of continued water and gas service.
7
Saenz was a treble-damages action by a slide-rule manufacturer who alleged a conspiracy between a state agency, the University Interscholastic League (UIL), its director, and a private competitor of Saenz to effect the rejection of Saenz products for use in interscholastic competition among Texas public schools. In Saenz the Court of Appeals affirmed the District Court's dismissal of the action against the UIL and its director on the ground that as a state agency and a state official, they were not answerable under the Sherman Act.
8
The word "exemption" is commonly used by courts as a shorthand expression for Parker's holding that the Sherman Act was not intended by Congress to prohibit the anticompetitive restraints imposed by California in that case.
9
In entering its order dismissing the counterclaim, the District Court made an express determination that there was no just reason for delay and expressly directed the entry of judgment for plaintiffs pursuant to Fed.Rule Civ.Proc. 54(b). This action designated the dismissal as a final appealable order. See Liberty Mutual Ins. Co. v. Wetzel, 424 U.S. 737, 742-743, 96 S.Ct. 1202, 1205-1206, 47 L.Ed.2d 435 (1976).
10
The word "person" or "persons" is used repeatedly in the antitrust statutes. For examples, see 15 U.S.C. § 1 (1976 ed.) ("Every person who shall make any contract or engage in any combination or conspiracy hereby declared to be illegal shall be deemed guilty of a felony . . ."); 15 U.S.C. § 2 (1976 ed.) ("Every person who shall monopolize, or attempt to monopolize, or combine or conspire with any other person or persons, to monopolize any part of the trade or commerce among the several States, or with foreign nations, shall be deemed guilty of a felony . . ."); 15 U.S.C. § 3 (1976 ed.) ("Every person [making a contract or engaging in a combination or conspiracy in restraint of trade in any Territory or the District of Columbia] shall be deemed guilty of a felony . . ."); 15 U.S.C. § 7 (1976 ed.) (defining the word "person" or "persons"); 15 U.S.C. § 8 (1976 ed.) (declaring illegal every contract, combination or conspiracy in restraint of trade by persons or corporations engaged in importing articles into the United States, and providing that any person so engaged shall be guilty of a misdemeanor).
11
Section 8 of the Sherman Act provides in full:
"That the word 'person,' or 'persons,' wherever used in this act shall be deemed to include corporations and associations existing under or authorized by the laws of either the United States, the laws of any of the Territories, the laws of any State, or the laws of any foreign country."
Section 8 has remained unchanged since its enactment in 1890.
Section 1 of the Clayton Act defines the word "person" or "persons" in language identical to that of § 8 of the Sherman Act, and it also has remained unchanged since its enactment in 1914.
12
Section 4 is quoted in full in n. 13, infra.
13
Section 7 of the Sherman Act, ch. 647, 26 Stat. 210 (1890) (repealed in 1955), provided in full:
"Any person who shall be injured in his business or property by any other person or corporation by reason of anything forbidden or declared to be unlawful by this act, may sue therefor in any circuit court of the United States in the district in which the defendant resides or is found, without respect to the amount in controversy, and shall recover three fold the damages by him sustained, and the costs of suit, including a reasonable attorney's fee."
Section 4 of the Clayton Act provides in full:
"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."
Section 4 has remained unchanged since its enactment in 1914. It is made applicable to all of the antitrust statutes by § 1 of the Clayton Act, 15 U.S.C. § 12 (1976 ed.).
14
When Congress wished to exempt municipal service operations from the coverage of the antitrust laws, it has done so without ambiguity. The Act of May 26, 1938, ch. 283, 52 Stat. 446, 15 U.S.C. § 13c (1976 ed.), grants a limited exemption to certain not-for-profit institutions for "purchases of their supplies for their own use" from the provisions of the Clayton Act as amended by the Robinson-Patman Act, 49 Stat. 1526, 15 U.S.C. §§ 13 to 13b and 21a (1976 ed.), which otherwise make it unlawful for a supplier to grant, or for an institution to induce, a discriminatory discount with respect to such supplies. Congress expressly included public libraries in this exemption. (Public libraries are, by definition, operated by local government. See I U. S. Office of Education, Biennial Surveys of Education in the United States, ch. 8 (Library Service 1938-1940), p. 27 (1947); 2 U.S. Office of Education, ch. 2 (Statistical Summary of Education, 1941-1942), p. 38; 32 Am. Library Assn. Bull. 272 (1938)).
15
See Mandeville Island Farms, Inc. v. American Crystal Sugar Co., 334 U.S. 219, 229-235, 68 S.Ct. 996, 1002-1005, 92 L.Ed. 1328 (1948).
16
"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 (1972).
17
See also Mine Workers v. Pennington, 381 U.S. 657, 669-672, 85 S.Ct. 1585, 1588, 1592-1594, 14 L.Ed.2d 626 (1965). Pennington held that, regardless of the anticompetitive purpose or effect on small competing mining companies, the joint action of certain large mining companies and labor unions in lobbying before the Secretary of Labor in favor of legislation establishing a minimum wage for employees of contractors selling coal to the Tennessee Valley Authority and in lobbying before TVA to avoid coal purchases exempted from the legislation was not subject to antitrust attack. Cases subsequent to Pennington have emphasized the possible constitutional infirmity in the antitrust laws that a contrary construction would entail in light of the serious threat to First Amendment freedoms that would have been presented. See Continental Ore Co. v. Union Carbide & Carbon Corp., 370 U.S. 690, 707-708, 82 S.Ct. 1404, 1414-1415, 8 L.Ed.2d 777 (1962); California Motor Transport Co. v. Trucking Unlimited, 404 U.S. 508, 516, 92 S.Ct. 609, 614, 30 L.Ed.2d 642 (1972) (Stewart, J., concurring in judgment).
18
See also Olsen v. Smith, 195 U.S. 332, 344-345, 25 S.Ct. 52, 54-55, 49 L.Ed. 224 (1904).
19
Union Pacific considered the applicability to a city of § 1 of the Elkins Act, 32 Stat. 847, as amended, 34 Stat. 587, 49 U.S.C. § 41(1). That statute, in definitional language similar to that used in § 8 of the Sherman Act, makes it unlawful for "any person, persons, or corporation to offer, grant, or give, or to solicit, accept, or receive any rebate, concession, or discrimination in respect to the transportation of any property in interstate or foreign commerce by any [covered] common carrier . . . ." (Emphasis added.) Kansas City, Kan. (hereinafter Kansas), decided to develop its Public Levee as a metropolitan rail food terminal with wholesale and retail produce markets. Kansas constructed, operated, and owned the market, financing the development with municipal revenue bonds.
Another city, Kansas City, Mo. (hereinafter Missouri), also operated a rail food terminal within the same metropolitan area. Because Kansas believed that there was insufficient business in the metropolitan area to support both markets, it developed a plan to induce Missouri produce dealers to lease its facilities by offering cash payments and temporary reduction or abatement of rent. These payments exceeded the amounts needed to compensate the merchants for the costs of moving, settlement of existing leases, and disruption to business. Kansas adopted the payment plan by resolution, and its legality under Kansas law was sustained by the Kansas Supreme Court in a quo warranto proceeding. State ex rel. Parker v. Kansas City, 151 Kan. 1, 97 P.2d 10 , 98 P.2d 101 (1939).
The Missouri terminal was served by a number of railroads, but the Kansas terminal was served virtually exclusively by the Union Pacific Railroad. As merchants moved from Missouri to Kansas, the Union Pacific's traffic necessarily increased while that of the other railroads shrank. The United States charged that the effect of Kansas' concessions to merchants, was to permit them to ship produce over the Union Pacific more cheaply than on the competing railroads serving the Missouri terminal and, in effect, amounted to a rebate from Union Pacific's tariffs. The District Court permanently enjoined Kansas from giving cash or rental credits to Missouri dealers to move or for moving to Kansas.
On appeal to this Court, Kansas argued that because the concessions were lawful under state law, it could not be enjoined from making them, and the United States argued that the municipality was a "person" within the meaning of the statute and therefore subject to the Act on the same terms
as a private corporation. See Brief for Appellants, O.T. 1940, No. 594, pp. 233-235, 244-256; Brief for the United States, O.T. 1940, No. 594, p. 72. See generally id., at 59-68, 69-75.
The Court held that the municipality was a "person" subject to the Act, and, with a modification not important here, upheld the permanent injunction against it. Mr. Justice Roberts, in dissent, made the argument made by the cities here, that the statutory phrase "every person" was not sufficiently specific to justify the conclusion that Congress wished to subject municipal corporations and their officers to the criminal penalties for which the Act provided. It is significant that the cities' argument was rejected in the context of the antirebate provisions of the Elkins Act, a statute which essentially is an antitrust provision serving the same purposes as the anti-price-discrimination provisions of the Robinson-Patman Act. Accord, Slater, Antitrust and Government Action: A Formula For Narrowing Parker v. Brown, 69 Nw.U.L.Rev. 71, 89 n. 100 (1974).
20
Ohio v. Helvering sustained a federal tax liability imposed upon the State of Ohio in its business as a distributor of alcoholic beverages. The statute, Rev.Stat. § 3244 (1978), imposed a tax upon "[e]very person who sells or offers for sale [alcoholic beverages]." The applicable definitional section, Rev.Stat. § 3140 (1978), provided: [W]here not otherwise distinctly expressed or manifestly incompatible with the intent thereof, the word 'person,' as used in this title, shall be construed to mean and include a partnership, association, company, or corporation, as well as a natural person." Helvering stated that "[w]hether the word 'person' or 'corporation' includes a state or the United States depends upon the connection in which the word is found," 292 U.S., at 370, 54 S.Ct., at 727, and held that "the state itself, when it becomes a dealer in intoxicating liquors, falls within the reach of the tax either as a 'person' under the statutory extension of that word to include a corporation, or as a 'person' without regard to such extension." Id., at 371, 54 S.Ct., at 727.
21
California held that a city and State are subject to §§ 16 and 17 of the Shipping Act, 1916, 39 Stat. 734, as amended, 46 U.S.C. §§ 815, 816, making unlawful certain practices of "person[s]," defined by § 1, 46 U.S.C. § 801, as including "corporations, partnerships, and associations, existing under or authorized by the laws of the United States, or any State . . . ."
22
The question of remedy can arise only if the District Court, on the Court of Appeals remand, determines that petitioners' activities are prohibited by the antitrust laws.
23
Cf. Hospital Building Co. v. Trustees of Rex Hosp., 425 U.S. 738, 740, 96 S.Ct. 1848, 1850, 48 L.Ed.2d 338 (1976). We use the allegations of the counterclaim only as a ready and convenient example of the kinds of activities in which a municipality may engage in the operation of its utility business which would have an anticompetitive effect transcending its municipal borders.
24
See generally Duke & Co. v. Foerster, 521 F.2d 1277 (CA3 1975); New Mexico v. American Petrofina, Inc., 501 F.2d 363 (CA9 1974); Hecht v. Pro-Football, Inc., 144 U.S.App.D.C. 56, 444 F.2d 931 (1971).
25
See Respondent's Second Amended Counterclaim, App. 33.
26
As one commentator has noted, our cases indicate that the protection against injury to the buyer is only one purpose of the rule against tying arrangements. Equally important is the need to protect competing sellers from competition unrelated to the merits of the product involved, and, concomitantly, to protect the market from distortion. Turner, The Validity of Tying Arrangements Under the Antitrust Laws, 72 Harv.L.Rev. 50, 60 (1958).
27
While the investor-owned utilities in Louisiana are subject to regulation by the Louisiana Public Utilities Commission, municipally owned utilities are not subject to the jurisdiction of the PUC and hence apparently need not conform their expansion policies to whatever plans the PUC might deem advisable for coordinating service. See n. 44, infra.
28
See Respondent's Answer & Counterclaim, App. 18-20.
29
The counterclaim alleged that petitioners engaged in sham litigation before the Securities and Exchange Commission, the Federal Power Commission, the Atomic Energy Commission, and the United States Department of Justice.
30
See generally California Motor Transport Co. v. Trucking Unlimited, 404 U.S. 508, 92 S.Ct. 609, 30 L.Ed.2d 642 (1972).
31
Petitioners have urged that the antimonopoly principles of the antitrust laws are inconsistent with the very nature of government operating as a monopoly in the public interest. They suggest that to apply antitrust principles to local governments will necessarily interfere with the execution of governmental programs. We do not agree. Acting as agents at the direction of the State, local governments are free to implement state policies without being subject to the antitrust laws to the same extent as would the State itself. See infra, at 413-417. On the other hand, it would not hinder governmental programs to require that cities authorized to provide services on a monopoly basis refrain from, for example, predatory conduct not itself directed by the State.
32
"The prohibitions of the Sherman Act were not stated in terms of precision or of crystal clarity and the Act itself did not define them. In consequence of the vagueness of its language, perhaps not uncalculated,[*] the courts have been left to give content to the statute, and in the performance of that function it is appropriate that courts should interpret its word in the light of its legislative history and of the particular evils at which the legislation was aimed. . . ."
"[*] See Debates, 21 Cong.Rec. 2460, 3148; 2 Hoar, Autobiography of Seventy Years 364; Senator Edmunds, The Interstate Trust and Commerce Act of 1890, 194 No.Am.Rev. 801, 813, 'after most careful and earnest consideration by the Judiciary Committee of the Senate it was agreed by every member that it was quite impracticable to include by specific description all the acts which should come within the meaning and purpose of the words "trade" and "commerce" or "trust," or the words "restraint" or "monopolize," by precise and all-inclusive definitions; and that these were truly matters for judicial consideration.'
"See also Senator Hoar who with Senator Edmunds probably drafted the bill (see A. H. Walker, History of the Sherman Law (1910), p. 27-28) in 36 Cong.Rec. 522, Jan. 6, 1903: 'We undertook by law to clothe the courts with the power and impose on them and the Department of Justice the duty of preventing all combinations in restraint of trade. . . . ' "
Apex Hosiery Co. v. Leader, 310 U.S. 469, 489, and n. 10, 60 S.Ct. 982, 990, 84 L.Ed. 1311 (1940).
33
The political-redress argument could also be made in the context of anticompetitive actions engaged in by the State itself. Our rejection of the argument here is not, however, inconsistent with the Parker doctrine. Parker did not reason that political redress is an adequate substitute for direct enforcement of the antitrust laws. Rather, Parker held that, in the absence of congressional intent to the contrary, a purpose that the antitrust laws be used to strike down the State's regulatory program imposed as an act of government would not be inferred. To the extent that the actions of a State's subdivisions are the actions of the State, the Parker exemption applies. See infra, at 413-417.
34
1 U.S. Bureau of the Census, 1972 Census of Governments, Governmental Organization 1 (1973). This figure (62,437) represents the total of county, municipal, township, and special district governments, but does not include the 15,781 independent school districts in the United States which, of course, have a much more narrowly defined range of functions and powers than those of local governmental units generlly. See id., at 1-5.
35
See, id., at 4-5.
36
See id., at 1-3.
37
See, e. g., Apex Hosiery Co. v. Leader, supra, 310 U.S., at 493-495, n. 15, 60 S.Ct., at 992-993, n. 15 (reviewing legislative history).
38
See United States v. Topco Associates, 405 U.S., at 610, 92 S.Ct., at 1134; Apex Hosiery Co. v. Leader, supra, 310 U.S., at 492-495, and n. 15, 60 S.Ct., at 992-993, and n. 15; Mandeville Island Farms, Inc. v. American Crystal Sugar Co., 334 U.S. 219, 229-235, 68 S.Ct. 996, 1002-1005, 92 L.Ed. 1328 (1948).
39
The state regulatory program involved in Parker furthered an important state interest which was consistent with federal policy. See Parker, 317 U.S., at 352-359, 63 S.Ct., at 314-317.
40
The plurality opinion in Cantor v. Detroit Edison Co., 428 U.S. 579, 96 S.Ct. 3110, 49 L.Ed.2d 1141 (1976), also analyzed a "state action" exemption claim in terms of whether the challenged anticompetitive action was taken pursuant to state command. Detroit Edison, an electric utility regulated by Michigan, was charged by an independent seller of light bulbs with antitrust violations in the operation of a program which provided light bulbs without extra cost to electricity customers. Detroit Edison, relying on Parker, defended on the ground that the light-bulb program was included in its rate filed with and approved by the State Public Service Commission and that state law required it to follow the terms of the tariff as long as it was in effect. Cantor rejected the claim, holding that since no Michigan statutes regulated the light-bulb industry, and since neither the Michigan Legislature nor the Public Service Commission had passed upon the desirability of such a light-bulb program, the Commission's approval of Detroit-Edison's program did not "implement any statewide policy relating to light bulbs" and that "the State's policy is neutral on the question whether a utility should, or should not, have such a program." 428 U.S., at 585, 96 S.Ct., at 3114. THE CHIEF JUSTICE, while not joining all of the plurality opinion, agreed with this analysis. Id., at 604-605, 96 S.Ct., at 3123-3124.
Cantor's analysis is not, however, necessarily applicable here. Cantor was concerned with whether anticompetitive activity in which purely private parties engaged could, under the circumstances of that case, be insulated from antitrust enforcement. The situation involved here, on the other hand, presents the issue of under what circumstances a State's
subdivisions engaging in anticompetitive activities should be deemed to be acting as agents of the State.
41
Petitioners argue that Goldfarb, like Cantor v. Detroit Edison Co., supra, expresses a limitation upon the circumstances under which private parties may be immunized from suit under the antitrust laws. They seek to avoid our holding in Goldfarb by suggesting that the State Bar, although a state agency by law acting in its official capacity, was somehow not a state agency because its official actions in issuing ethical opinions, see 421 U.S., at 791 n. 21, 95 S.Ct., at 2015, benefited its member-lawyers by discouraging price competition. We think it obvious that the fact that the ancillary effect of the State Bar's policy, or even the conscious desire on its part, may have been to benefit the lawyers it regulated cannot transmute the State Bar's official actions into those of a private organization. In addition to the decision in this case, every other Court of Appeals which has considered the immunity of state instrumentalities after Goldfarb has regarded it as having held that anticompetitive actions of a state instrumentality not compelled by the State acting as sovereign are not immune from the antitrust laws. City of Fairfax v. Fairfax Hospital Assn., 562 F.2d 280, 284-285 (CA4 1977); id., at 288 (concurring opinion); Kurek v. Pleasure Driveway & Park Dist., 557 F.2d 580, 588-591 (CA7 1977), cert. pending, No. 77-440; Duke & Company, Inc. v. Foerster, 521 F.2d, at 1280.
The acknowledgment of our Brother STEWART's dissent, post, at 433, that, as noted in Indian Towing Co. v. United States, 350 U.S. 61, 67-68, 76 S.Ct. 122, 126, 100 L.Ed. 48 (1955), " 'Government is not partly public or partly private, depending upon the governmental pedigree of the type of a particular activity or the manner in which the Government conducts it,' " (citation omitted), discloses the fallacy of his effort to distinguish Goldfarb on the ground that, although the State Bar was " 'a state agency for some limited purposes,' . . . the price fixing it fostered was for the private benefit of its members and its actions were essentially those of a private professional group." Post, at 431.
42
Without explication, our Brother STEWART's dissent states that our "reliance . . . on the basically irrelevant body of law under the Eleventh Amendment" is unfounded. Ibid. Rather, it is the statement that is unfounded. For the longstanding principle, of which Congress in 1890 was well aware, see Lincoln County v. Luning, 133 U.S. 529, 10 S.Ct. 363, 33 L.Ed. 766 (1890), is that political subdivisions are not as such sovereign. Certainly, nothing in National League of Cities v. Usery, 426 U.S. 833, 96 S.Ct. 2465, 49 L.Ed.2d 245 (1976), even remotely suggested the contrary; we search in vain for anything in that case that establishes a constructional principle of presumptive congressional deference in behalf of cities Indeed our emphasis today in our conclusion, that municipalities are "exempt" from antitrust enforcement when acting as state agencies implementing state policy to the same extent as the State itself, makes it difficult to see how National League of Cities is even tangentially implicated.
43
"While state legislatures exercise extensive power over their constituents and over the various units of local government, the States universally leave much policy and decisionmaking to their governmental subdivisions. Legislators enact many laws but do not attempt to reach those countless matters of local concern necessarily left wholly or partly to those who govern at the local level." Avery v. Midland County, 390 U.S. 474, 481, 88 S.Ct. 1114, 1118, 20 L.Ed.2d 45 (1968).
Although Avery concluded that the actions of local government are the actions of the State for purposes of the Fourteenth Amendment, state action required under Parker has di ferent attributes. Cf. Edelman v. Jordan, 415 U.S. 651, 667 n. 12, 94 S.Ct. 1347, 1357-1358, 39 L.Ed.2d 662 (1974).
44
Indeed, state policy may be contrary to that adopted by a political subdivision, yet, for a variety of reasons, might not render the local policy unlawful under state law. For example, a state public utilities commission might adopt, though we are not aware that the Louisiana PUC has done so, a policy prohibiting the specific anticompetitive practices in which the municipality engages, yet be unable to enforce that policy with respect to municipalities because it lacks jurisdiction over them. (The Louisiana PUC, in litigation unrelated to this case, has been held to lack jurisdiction over municipal utility systems whether operating within or without the municipality. City of Monroe v. Louisiana Public Serv. Comm'n, No. 177,757—Div. "I" (19th Jud. Dist. Ct., Sept. 14, 1976).) If that were the case, and assuming that there were no other evidence to the contrary, it would be difficult to say that state policy fosters, much less compels, the anticompetitive practices.
Louisiana Rev.Stat.Ann. § 33:1334(G) (West Supp.1977) provides another illustration of the fact that a particular activity in which a subdivision technically has power to engage does not necessarily conform to, and may conflict with, state policy. Louisiana has authorized municipalities to create intergovernmental commissions as municipal instrumentalities jointly to construct and operate public services including utilities. §§ 33:1324, 33:1331-33:1334 (West Supp.1977). Such commissions are, by definition, political subdivisions of the State. § 33:1334(D) (West Supp.1977). Section 1334(G) nevertheless provides that "[n]othing in this Chapter shall be construed to grant an immunity to or on behalf of any [such] public instrumentality . . . from any antitrust laws of the state or of the United States."
45
We reject petitioners' fallback position that an antitrust claim will not lie for anticompetitive municipal action which, though not state directed, is lawful under state law. See Schwegmann Bros. v. Calvert Distillers Corp., 341 U.S. 384, 71 S.Ct. 745, 95 L.Ed. 1035 (1951); Northern Securities Co. v. United States, 193 U.S. 197, 344-351, 24 S.Ct. 436, 459-462, 48 L.Ed. 679 (1904); cf. Union Pacific R. Co. v. United States, 313 U.S. 450, 61 S.Ct. 1064, 85 L.Ed. 1453 (1941) (discussed in n. 19, supra ). See also n. 44, supra.
46
Restating a theme made and rejected before, see Cantor v. Detroit Edison Co., 428 U.S., at 640, 96 S.Ct., at 3140 (Stewart, J., dissenting), our Brother STEWART's dissent, post, at 438-440, likens judicial enforcement of the antitrust laws to a regime of substantive due process used by federal judges to strike down state and municipal economic regulation thought by them unfair. That analogy, of course, ignores the congressional judgment mandating broad scope in enforcement of the antitrust laws and simply reflects the dissent's view that such enforcement with respect to cities is unwise.
47
While the majority and dissent disagreed in Otter Tail over whether the specific practices of which plaintiffs complained could be regarded as unlawful anticompetitive restraints in light of the existence of federal regulation, there was agreement that a lawful monopolist could violate the antitrust laws. Compare 410 U.S., at 377-382, 93 S.Ct., at 1029-1032 with id., at 390-391, n. 7, 93 S.Ct., at 1035-1036 (Stewart, J., concurring in part and dissenting in part).
48
It may be that certain activities which might appear anticompetitive when engaged in by private parties, take on a different complexion when adopted by a local government. See generally Posner, The Proper Relationship Between State Regulation and the Federal Antitrust Laws, 49 N.Y.U.L.Rev. 693, 705 (1974).
1
The District Court did not, of course, make a formal finding of fact to this effect since the counterclaim was disposed of on the basis of pleadings. Nonetheless, the District Court could reasonably conclude, as a matter of law, that the Cities are engaging in business activities which have as their aim the production of revenues in excess of costs. It certainly is the case that these Cities are attempting to provide a public service, but it is likewise undeniable that they seek to do so in the most profitable way. The Cities allege in their complaint, for example, that they have "been prevented from profitably expanding their businesses." App. 14. While it is correct that the Cities are ordinarily constrained from applying their net earnings as a private corporation would, this does not detract from their competitive posture and resulting incentive to engage in anticompetitive practices.
2
Our conceptions of the limits imposed by federalism are bound to evolve, just as our understanding of Congress' power under the Commerce Clause has evolved. Consequently, since we find it appropriate to allow the ambit of the Sherman Act to expand with evolving perceptions of congressional power under the Commerce Clause, a similar process should occur with respect to "state action" analysis under Parker. That is, we should not treat the result in the Parker case as cast in bronze; rather, the scope of the Sherman Act's power should parallel the developing concepts of American federalism.
3
I use the term "proprietary" only to focus attention on the fact that all of the parties are in a competitive relationship such that each should be constrained, when necessary, by the federal antitrust laws. It is highly unlikely that Congress would have meant to impose liability only on some of these parties, when each possesses the means to thwart federal antitrust policy.
4
Mr. Justice STEWART's dissent, post, at 433-434, attempts to blunt this analysis by noting that the "nongovernmental-governmental" distinction was criticized in Indian Towing Co. v. United States, 350 U.S. 61, 76 S.Ct. 122, 100 L.Ed. 48 (1955). I suggest no more, however, than what is obvious from our past cases: Petitioners' business activities are not entitled to per se exemption from the Sherman Act. This much ought to be quite clear from United States v. California, 297 U.S. 175, 56 S.Ct. 421, 80 L.Ed. 567 (1936), where the State operated a railroad, albeit without profit, and as a "public function." I cannot comprehend why the Cities here should be treated in a different manner. The only authority which Mr. Justice STEWART cites to the contrary, Lowenstein v. Evans, 69 F. 908 (CC SC 1895), was a case in which a State's complete monopolization of the liquor industry was challenged as violating the Sherman Act. But in that circumstance the State clearly directed the creation of a monopoly, thus bringing the matter within the Parker rationale. Compare Ohio v. Helvering, 292 U.S. 360, 54 S.Ct. 725, 78 L.Ed. 1307 (1934).
5
Such an ascertainment dovetails precisely with the law of Louisiana. There it is recognized that the powers of a municipal corporation are both public and private: As to the former, the city represents the State, discharging duties incumbent upon the State; as to the latter, it represents pecuniary and proprietary interests of individuals, and is held to the same responsibility as a private person. Hall v. City of Shreveport, 157 La. 589, 594, 102 So. 680, 681 (1925). A long line of Louisiana cases dealing explicitly with the subject of municipally owned electrical utilities holds that cities are to be governed by the same rules applicable to private corporations and individuals. See Hicks v. City of Monroe Utilities Comm'n, 237 La. 848, 112 So.2d 635 (1959); Elias v. Mayor of New Iberia, 137 La. 691, 69 So. 141 (1915); Hart v. Town of Lake Providence, 5 La.App. 294 (1926); Bannister v. City of Monroe, 4 La.App. 182 (1926).
6
While I agree with the plurality that a State may cause certain activities to be exempt from the federal antitrust laws by virtue of an articulated policy to displace competition with regulation, I would require a strong showing on the part of the defendant that the State so intended. Thus, I would not be satisfied, as the plurality and Court of Appeals apparently are, that the highest policymaking body in the State of Louisiana merely "contemplated" the activities being undertaken by the cities. See ante, at 415. I would insist, as the Court did in Goldfarb v. Virginia State Bar, 421 U.S. 773, 791, 95 S.Ct. 2004, 2015, 44 L.Ed.2d 572 (1975), that the State compel the anticompetitive activity. Moreover, I would have the Cities demonstrate that the exemption was not only part of a regulatory scheme to supersede competition, but that it was essential to the State's plan. Consequently, I do not disagree with the terms of the plurality's remand as such ; I would simply ask for a stronger showing on the part of the Cities. I join the judgment, however, and the directions of the remand, because they represent at a minimum what I believe we should demand of petitioners.
7
In Cantor this mode of analysis effectively answered Detroit Edison's claim that it was required by state law to engage in the allegedly anticompetitive activities. We "infer[red] that the State's policy [was] neutral on the question whether a utility should, or should not, have such a program," 428 U.S., at 585, 96 S.Ct., at 3115 (opinion of STEVEN, J.) (emphasis added), 604-605, 96 S.Ct., at 3125 (opinion of BURGER, C. J.), and consequently it could not be said that an exemption "was necessary in order to make the regulatory Act work."
*
Mr. Justice Blackmun joins all but Part II-B of this opinion.
1
As the plurality acknowledges, ante, at 393 n.8, Parker v. Brown did not create any exemption from the antitrust laws, but simply recognized that it was the intent of Congress that the Sherman Act should not apply to governmental action. It is thus hard to understand why the plurality invokes the doctrine that exemptions from the antitrust laws will not be lightly implied by subsequent enactment of a regulatory statute. This rule, which effects the accommodation of two federal statutes and rests on the principle that implied repeals are not favored, has no relevance to the Parker doctrine, which is based on an interpretation of the Sherman Act itself.
2
See also, e. g., 20 Cong.Rec. 1458 (1889) ("the practice, now becoming too common, of large corporations, and of single persons, too, of large wealth, so arranging that they dictate to the people of this country what they shall pay when they purchase, and what they shall receive when they sell"); 21 Cong.Rec. 2728 (1890) ("transaction[s] the only purpose of which is to extort from the community, monopolize, segregate, and apply to individual use, for the purposes of individual greed, wealth which ought properly and lawfully and for the public interest to be generally diffused over the whole community"); id., at 3147 (remarks of Sen. George).
That the Sherman Act was enacted to deal with combinations of individuals and corporations for private business advanta e has long been recognized by this Court. Eastern Railroad Presidents Conf. v. Noerr Motor Freight, Inc., 365 U.S. 127, 135-136, 81 S.Ct. 523, 528-529, 5 L.Ed.2d 464; Apex Hosiery Co. v. Leader, 310 U.S., at 492-493, 60 S.Ct., at 992, and n.15; Standard Oil Co. v. United States, 221 U.S. 1, 50, 58, 31 S.Ct. 502, 511, 515, 55 L.Ed. 619.
3
See Cantor v. Detroit Edison Co., 428 U.S. 579, 591, and n.24, 96 S.Ct. 3110, 3117, 49 L.Ed.2d 1141.
4
The Court assumed that California's program would violate the Sherman Act "if it were organized and made effective solely by virtue of a contract, combination or conspiracy of private persons individual or corporate," but noted that the program "was never intended to operate by force of individual agreement or combination." 317 U.S., at 350, 63 S.Ct., at 313. The Court found nothing in the Sherman Act or its legislative history to suggest that "it was intended to restrain state action or official action directed by a state"; rather, the Act was intended "to suppress combinations to restrain competition and attempts to monopolize by individuals and corporations." Id., at 351, 63 S.Ct., at 313. It was "a prohibition of individual and not state action." Id. at 352, 63 S.Ct. at 314.
5
See also, e. g., Trenton v. New Jersey, 262 U.S. 182, 185-186, 43 S.Ct. 534, 536, 67 L.Ed. 937; Hunter v. Pittsburgh, 207 U.S. 161, 178, 28 S.Ct. 40, 46, 52 L.Ed. 151; The Mayor v. Ray, 19 Wall. 468, 475, 22 L.Ed. 164; Bradford v. Shreveport, 305 So.2d 487 (La.).
6
Cf. Barnes v. District of Columbia, 91 U.S. 540, 544-545, 23 L.Ed. 440; The Mayor v. Ray, supra, at 475; East Hartford v. Hartford Bridge Co., 10 How. 511, 13 L.Ed. 518. Under Louisiana law the petitioners' powers are subject to complete legislative control. See Bradford v. Shreveport, supra.
7
That the particular factual and legal context is all important is shown by the fact that under other provisions of the Constitution a municipality is equated with a State. E. g., Waller v. Florida, 397 U.S. 387, 90 S.Ct. 1184, 25 L.Ed.2d 435 (Double Jeopardy Clause); Avery v. Midland County, 390 U.S. 474, 480, 88 S.Ct. 1114, 1118, 20 L.Ed.2d 45 (Fourteenth Amendment); Trenton v. New Jersey, supra (Impairment of Contract Clause). See also Doran v. Salem Inn., Inc., 422 U.S. 922, 927 n. 2, 95 S.Ct. 2561, 45 L.Ed.2d 648 (28 U.S.C. § 1254(2).
8
Worcester v. Street R. Co., 196 U.S. 539, 548, 25 S.Ct. 327, 329, 49 L.Ed. 591.
9
See Schwegmann Bros. v. Calvert Distillers Corp., 341 U.S. 384, 71 S.Ct. 745, 95 L.Ed. 1035; Northern Securities Co. v. United States, 193 U.S. 197, 346, 24 S.Ct. 436, 460, 48 L.Ed. 679.
10
However, the District Court's "conclusion," ante, at 418, that the petitioners' electric utility service was a business activity engaged in for profit was not supported by any evidence (since the case was decided on a motion to dismiss) and is indeed challenged here by the petitioners in their reply brief.
11
Of course, the fact—heavily relied upon both by the plurality and THE CHIEF JUSTICE—that the actions of cities may have anticompetitive effects misses the point. The whole issue before the Court today is whether conduct that would concededly subject a private individual to liability because of its anticompetitive nature is proscribed by the antitrust laws when undertaken by a city.
12
In various places, the separate opinion of THE CHIEF JUSTICE refers to " 'business activit[ies] . . . in which a profit is realized,' " to "proprietary enterprises," to activities which have "the inherent capacity for economically disruptive anticompetitive effects," to those which are not "integral operation[s] in the area of traditional government functions," and to those not "the prerogative of the State."
13
This case, involving a state liquor monopoly, was cited with approval in Parker v. Brown, 317 U.S., at 352, 63 S.Ct., at 314.
14
See, e. g., Lockport v. Citizens for Community Action, 430 U.S. 259, 269, 97 S.Ct. 1047, 1054, 51 L.Ed.2d 313; Avery v. Midland County, 390 U.S., at 481-482, 88 S.Ct., at 1118-1119.
15
Local self-government is broadest in "home rule" municipalities, which can be almost entirely free from legislative control in local matters. See Vanlandingham, Municipal Home Rule in the United States, 10 Wm. & Mary L.Rev. 269 (1968). Although the petitioners are not home rule cities, Louisiana's Constitution has a home rule provision, La.Const. of 1974, Art. 6, §§ 5, 6; La.Const. of 1921, Art. XIV, §§ 22, 40(c), as do the constitutions or statutes of at least 33 other States. Note, Antitrust Law and Municipal Corporations, 65 Geo.L.J. 1547, 1559 n. 77 (1977).
16
While THE CHIEF JUSTICE has not joined those portions of the plurality opinion that discuss what is necessary to show that a challenged activity was required by the State, he would apparently require a still stronger, and hence less justifiable, showing of state legislative compulsion. Ante, at 425-426 n.6.
17
La.Rev.Stat.Ann. § 33:621 (West 1951):
"The inhabitants of the city shall continue a body politic and corporate by its present name and, as such, . . . may sue and be sued; . . . may acquire by condemnation or otherwise, construct, own, lease, and operate and regulate public utilities within or without the corporate limits of the city subject only to restrictions imposed by general law for the protection of other communities; . . . [and] may borrow money on the faith and credit of the city by issue or sale of bonds, notes, or other evidences of debt . . .."
See also La.Rev.Stat.Ann. §§ 33:1326 (West 1951), 33:4162, 33:4163 (West 1966).
18
The plurality's suggestion that the Louisiana Legislature has expressed a state policy that the activities of cities should be subject to the antitrust laws, ante, at 414-415 n.44, and 416, is both erroneous and irrelevant. Louisiana Rev.Stat.Ann. § 33:1334(G) (West Supp.1977) applies not to municipalities but only to utility commissions created jointly by several cities or counties; there is no comparable statute applicable to the petitioners. Moreover, the applicability of the federal antitrust laws is a matter of federal, not state, law; conversely, a State's restrictions on municipal action are a matter of state, not federal, law. A State can no more bring a person's conduct within the coverage of federal law when Congress has not done so than it can exempt a person's conduct from the operation of federal law if Congress has provided otherwise. Cf. Schwegmann Bros. v. Calvert Distillers Corp., 341 U.S. 384, 71 S.Ct. 745, 95 L.Ed. 1035.
19
The Court imposes yet another unwarranted limitation upon governmental immunity from the antitrust laws. Apparently, a municipality can claim immunity only if the state legislature has mandated its action "pursuant to state policy to displace competition with regulation or monopoly public service." Ante, at 413 (plurality opinion); see ante, at 425 (opinion of BURGER, C. J.). Even had the Louisiana State Legislature passed a law specifically compelling the petitioners to litigate in an effort to prevent respondent from constructing its nuclear generating facility, compelling them to insert restrictive covenants in their debentures, and compelling the tying arrangements complained of, could such a law fairly be described as "displac[ing] competition with regulation or monopoly public service"? Would the Court thus deny the cities immunity for their actions even if they were compelled by the State which controlled them?
20
See M. Price & H. Bitner, Effective Legal Research 73, 103 (3d ed. 1969).
21
See n.17, supra.
22
This problem of statutory interpretation is exacerbated by the fact that today's decision will have "retroactive" application in two senses. First, antitrust liability can be premised on actions that have occurred in the past. Second, many of the statutes governing contemporary and future municipal activities were enacted years ago. Thus, municipalities will be faced with the difficult problem of establishing their antitrust immunity based on statutes that were enacted without any foreknowledge of the criteria announced by the Court today.
23
The vagueness of the test proposed in the separate opinion of THE CHIEF JUSTICE, see supra, at 433-434, will only add to the confusion of a city trying to protect itself from antitrust liability.
24
See Whitworth v. Perkins, 559 F.2d 378 (CA5).
25
By imposing antitrust liability on "proprietary" governmental activities, the test adopted in the opinion of THE CHIEF JUSTICE would further deter States from choosing to provide services themselves rather than regulating others.
26
See Sailors v. Board of Education, 387 U.S. 105, 87 S.Ct. 1549, 18 L.Ed.2d 650; Williams v. Eggleston, 170 U.S. 304, 310, 18 S.Ct. 617, 619, 42 L.Ed. 1047; see also Baker v. Carr, 369 U.S. 186, 289-290, and n.23, 82 S.Ct. 691, 749-750, 7 L.Ed.2d 663, and cases cited (Frankfurter, J., dissenting).
The plurality's emphasis on legislative action also leaves in doubt the status of state delegations of power to administrative agencies, unless they, too, can show that the legislature "directed" their actions. This, of course, defeats the whole purpose of establishing such agencies.
27
See New State Ice Co. v. Liebmann, 285 U.S. 262, 311, 52 S.Ct. 371, 386, 76 L.Ed. 747 (Brandeis, J., dissenting).
28
Ferguson v. Skrupa, 372 U.S. 726, 83 S.Ct. 1028, 10 L.Ed.2d 93.
29
U. S. Department of Commerce, Bureau of the Census, 1970 Census of Population, Number of Inhabitants, United States Summary, Table 31 (1971).
30
The Court indicates that the remedy of treble damages might not be "appropriate" in antitrust actions against a municipality. Ante, at 401-402, and n.22. But the language of § 4 of the Clayton Act, 15 U.S.C. § 15 (1976 ed.), is mandatory on its face: It requires that "[a]ny person who shall be injured in his business or property by reason of anything forbidden in the antitrust laws . . . shall recover threefold the damages by him sustained" (emphasis supplied). Cf., e. g., 35 U.S.C. § 284. And the legislative history cited by Mr. Justice BLACKMUN, post, at 443 n.2, demonstrates that Congress has understood the treble-damages provision to be mandatory and has refused to change it. The Court does not say on what basis a district court could possibly disregard this clear statutory command. Cf. Perma Life Mufflers, Inc. v. International Parts Corp., 392 U.S. 134, 88 S.Ct. 1981, 20 L.Ed.2d 982.
31
Legal fees to defend one current antitrust suit have been esti ated as at least one-half million dollars a month. N. Y. Times, June 27, 1977, p. 41, col. 6; id., Sept. 4, 1977, section 3, p. 5, col. 1.
32
Treble-damages liability can, of course, be ruinous to a private corporation as well. But a private corporation, organized for the purpose of seeking private profit, is surely very different from a city providing essential governmental functions, and shareholders do not stand in the same relation to their corporation as do residents or taxpayers to the city in which they live. An investment in a corporation is essentially a business decision; a shareholder takes the risks of corporate losses in the hope of corporate profits. A citizen's relationship to his city government is obviously far different.
1
Respondent seeks treble damages in excess of $540 million in this case. If divided among Plaquemine and Lafayette residents, that penalty would exceed $28,000 for each family of four.
Under the federal tax on sellers of alcoholic beverages, 26 U.S.C. §§ 11 and 205 (1926 ed.), construed in Ohio v. Helvering, 292 U.S. 360, 370-371, 54 S.Ct. 725, 727, 78 L.Ed. 1307, (1934), the potential liability of the State of Ohio was $25 for each retail, and $100 for each wholesale, outlet. Under §§ 16 and 17 of the Shipping Act, 1916, 46 U.S.C. §§ 815, 816 (1940 ed.), construed in California v. United States, 320 U.S. 577, 585-586, 64 S.Ct. 352, 356, 88 L.Ed. 322 (1944), a violation was a misdemeanor punishable by a $5,000 fine. The Court's only arguable support lies in § 1 of the Elkins Act, 49 U.S.C. § 41, construed in Union Pacific R. Co. v. United States, 313 U.S. 450, 61 S.Ct. 1064, 85 L.Ed. 1453 (1941). Even there, the potential liability of a municipality not acting as a common carrier is a $20,000 fine, and, were illegal transportation rebates to be received by the municipality, three times the amount of the rebate. Even if a municipality were held to be operating a common carrier under that Act, potential financial liability is limited to the fine and the actual damages caused by the prohibited conduct. 49 U.S.C. § 8.
2
E. g., H. R. 4597, 83d Cong., 1st Sess. (1953); H. R. 6875, 84th Cong., 1st Sess. (1955); H. R. 978, 85th Cong., 1st Sess. (1957); H. R. 1184, 86th Cong., 1st Sess. (1959); H. R. 190, 87th Cong., 1st Sess. (1961). See also Hearings on H. R. 4597 before Subcommittee No. 3 of the House Committee on the Judiciary, 83d Cong., 1st Sess. (1953); Hearings before the Antitrust Subcommittee of the House Committee on the Judiciary, 84th Cong., 1st Sess., 189, 509-522, 2246-2249 (1955).
| 78
|
435 U.S. 444
98 S.Ct. 1153
55 L.Ed.2d 403
Commonwealth of MASSACHUSETTS, Petitioners,v.UNITED STATES.
No. 76-1500.
Argued Dec. 6, 1977.
Decided March 29, 1978.
Syllabus
As part of a comprehensive program to recoup the costs of federal aviation programs from those who use the national airsystem, Congress enacted the Airport and Airway Revenue Act of 1970, which imposes an annual "flat fee" registration tax on all civil aircraft, including those owned by the States and by the Federal Government, that fly in the navigable airspace of the United States. The Act also imposes a 7-cent-per-gallon tax on aircraft fuel, which, together with a 5-cent-per-pound aircraft tire and 10-cent-per-pound tube tax and the registration tax, was intended to reflect the cost of benefits from the programs to noncommercial general aircraft, but States were exempted from the fuel, tire, and tube taxes. After the registration tax was collected under protest from it with respect to a helicopter it used exclusively for police functions, the Commonwealth of Massachusetts instituted this refund action, contending that the United States may not constitutionally impose a tax that directly affects the essential and traditional state function of operating a police force. The District Court dismissed the complaint on the ground, inter alia, that the registration tax was a user fee which did not implicate the constitutional octrine of implied immunity of state government from federal taxation. The Court of Appeals affirmed. Held: The registration tax does not violate the implied immunity of a state government from federal taxation. Pp. 453-470.
(a) A State enjoys no constitutional immunity from a nondiscriminatory federal revenue measure which operates only to ensure that each member of a class of special beneficiaries of a federal program pays a reasonable approximation of its fair share of the cost of the program to the Federal Government. Pp. 454-463.
(b) Even if it were feasible for the Federal Government to recover all costs of a program through charges for measurable amounts of use of its facilities, rather than by imposing a flat fee, so long as the federal taxes imposed do not discriminate against state functions, are based on a fair approximation of the State's use of the facilities, and are structured to produce revenues that will not exceed the total cost to the Federal Government of the benefits supplied, there can be no substantial basis for a claim that the Federal Government may be using its taxing powers to control, unduly interfere with, or destroy a State's ability to perform essential services. Pp. 463-467.
(c) Here, the registration tax (1) is nondiscriminatory, since it applies not only to private users of the airways, but also to civil aircraft operated by the United States; (2) is, together with the 7-cents-per-gallon fuel tax and the 5-cent-per-pound tire and 10-cent-per-pound tube tax, a fair approximation of the cost of the benefits civil aircraft receive from the federal programs, since, even though the taxes do not give weight to every factor affecting appropriate compensation for airport and airway use, the fuel tax and tire and tube tax are geared directly to use whereas the registration tax is designed to give weight to factors affecting the level of use of the navigational facilities; and (3) is not excessive in relation to the cost of the Government benefits supplied, since not only have the user fees proved to be insufficient to cover the annual civil aviation outlays but the States, being exempt from the fuel tax, pay far less than private noncommercial users of the airways. Pp. 467-470.
548 F.2d 33, affirmed.
Terence P. O'Malley, Boston, Mass., for petitioner.
Allan A. Ryan, Jr., Washington, D. C., for respondent.
Mr. Justice BRENNAN delivered the opinion of the Court.*
1
As part of a comprehensive program to recoup the costs of federal aviation programs from those who use the national airsystem, Congress in 1970 imposed an annual registration tax on all civil aircraft that fly in the navigable airspace of the United States. 26 U.S.C. § 4491.1 The constitutional question presented in this case is whether this tax, as applied to an aircraft owned by a State and used by it exclusively for police functions, violates the implied immunity of a state government from federal taxation. We hold that it does not.
2
* Since the passage of the Air Commerce Act of 19 6, 44 Stat. 568, the Federal Government has expended significant amounts of federal funds to develop and strengthen an integrated national airsystem and to make civil air transportation safe and practical. It has established, developed, and improved a wide array of air navigational facilities and services that benefit all aircraft flying in the Nation's navigable airspace,2 and it has also made substantial grants to state and local governments to assist in planning and developing airports.
3
In 1970, after an extended study of the national airsystem, Congress concluded that the level of annual federal outlays on aviation, while significant, had not been sufficient to permit the national airsystem to develop the capacity to cope satisfactorily with the current and projected growth in air transportation. To remedy this situation, Congress enacted two laws, the Airport and Airway Development Act of 1970 (Development Act), 84 Stat. 219, and the Airport and Airway Revenue Act of 1970 (Revenue Act), 84 Stat. 236, which together constitute a comprehensive program substantially to expand and improve the national airport and airway system over the decade beginning July 1, 1970. In the Development Act, Congress provided for vastly increased federal expenditures both for airport planning and development and for the further expansion of federal navigational services. More importantly for present purposes, the Revenue Act adopted several measures to ensure that federal outlays that benefited the civil users of the airways would, to a substantial extent, be financed by taxing measures imposed on those civil users.3 The Revenue Act, therefore, enacted for the first time, or increased, several taxes on civil aviation. Congress conceived of each of these revenue measures as user fees and calculated that they would produce revenues that would defray a significant and increasing percentage of the civil share of the annual total federal airport and airway expenditures for the fiscal years 1970 to 1979.4 To assure that the revenues from these user taxes would be expended only for the expansion, improvement, and maintenance of the air transportation system, an Airport and Airway Trust Fund was created, and Congress provided that the amount of revenue generated by the aviation user charges would, during the 1970's, be paid into this trust fund, as would any money appropriated from general revenues for aviation purposes.5 Revenue Act, § 208, 84 Stat. 250, 49 U.S.C. § 1742; see H.R.Rep.No.91-601, p. 41 (1969) (hereinafter H.R.Rep.); U.S.Code Cong. & Admin.News 1970, p. 3047; S.Rep.No.91-706, pp. 23-25 (1970) (hereinafter S.Rep.).
4
The financing measures in the Revenue Act are intended to promote two purposes. First, they are designed to serve the congressional policy of having those who especially benefit from Government activity help bear the cost. See H.R.Rep. 38; S.Rep. 5. Second, the financing provisions are intended to ensure that the capacity of the national air system would not again be found to be insufficient to meet the demands of increasing use. Congress believed that the inadequacy in past levels of investment in aviation had been due to the substantial competition from nonaviation budgetary requests. See H.R.Rep. 3. The trust fund and the user fees were, therefore, established to provide funding for aviation that would "generally match and grow with the demand" for use of the airways. Id., at 8, U.S.Code Cong. & Admin.News 1970, p. 3055.
5
The tax challenged in this case is one of several adopted in the Revenue Act, the annual aircraft registration tax. Revenue Act, § 206, 26 U.S.C. § 4491. It imposes an annual "flat fee" tax on all civil aircraft—including those owned by State and National Governments6—that fly in the navigable airspace of the United States.7 The amount of the annual charge depends upon the type and weight of the aircraft: those with piston-driven engines pay $25 plus 2 cents per pound of the maximum certificated takeoff weight in excess of 2,500 pounds whereas turbine-powered aircraft pay $25 plus31/2 cents per pound of the maximum certificated takeoff weight. See n. 1,supra.
6
As is apparent from both the rate of tax in § 4491 and the legislative history of the Revenue Act, Congress did not contemplate that the annual registration tax would generate significant amounts of revenue, but rather that the bulk of the funds generated by the system would come from other user taxes,8 each of which is related more directly to the level of use of the navigable airspace. Thus, commercial aviation's share of the cost of the federal activities would be raised primarily through an 8% tax on the price of domestic air passenger tickets, see Revenue Act, § 203, 26 U.S.C. § 4261; a $3 "head tax" on international flights originating in the United States,ibid.; and a 5% tax on the cost of transporting property by air, Revenue Act, § 204, 26 U.S.C. § 4271. Noncommercial general aviation—the generic category that includes state police aircraft—would pay most of its share through a 7-cent-per-gallon tax on aircraft fuel. See Revenue Act, § 202, 26 U.S.C. § 4041.
7
But while the registration tax was expected to produce only modest revenues and was understood to be only indirectly related to system use, Congress regarded it as an integral and essential part of the network of user charges.9 Moreover, it is the only tax imposed on those general noncommercial aircraft owned and operated by States. Although Congress was generally of the view that the States should be required to pay aviation user charges since "there would appear to be no reason why [they] should not pay for their fair share of the use of the airway facilities," H.R.Rep. 46, U.S.Code Cong. & Admin.News 1970, p. 3091; see S.Rep. 17-18, and in fact made the States subject to all the other user charges, it reta ned a statutory exemption for the States from the aircraft fuel, tire, and tube taxes. See 68A Stat. 480, as amended, 26 U.S.C. § 4041(g) (1976 ed.); 26 U.S.C. § 4221.
8
The Commonwealth of Massachusetts owns several aircraft that are subject to the tax imposed by § 4491, including a helicopter which the Commonwealth uses exclusively for patrolling highways and other police functions.10 In 1973 the United States notified the Commonwealth that it had been assessed for a tax of $131.43 on this state police helicopter for the period from July 1, 1970, to June 30, 1971. The Commonwealth refused to pay and the United States thereafter levied on one of the Commonwealth's bank accounts and collected this tax, plus interest and penalties.
9
Pursuant to 28 U.S.C. § 1346 (1970 ed. and Supp. V), the Commonwealth then instituted this action for a refund of the money collected, contending that the United States may not constitutionally impose a tax that directly affects the essential and traditional state function of operating a police force. The District Court dismissed the complaint in an unreported decision. It first indicated its view that the most recent decisions of this Court had so limited a State's constitutional immunity from federal taxation that a constitutional challenge could not succeed unless the tax was discriminatory or the State showed that the tax actually impaired a State function. Because the Commonwealth had not alleged that this nondiscriminatory annual fee had in fact impaired the operations of its police force, the District Court concluded dismissal was mandatory. In the alternative, the District Court held that the tax in question is a user fee and that, whatever the present scope of the constitutional principle of implied immunity of a state government from federal taxes, a user fee does not implicate the doctrine. The Court of Appeals for the First Circuit affirmed, solely on the latter ground. 548 F.2d 33 (1977). We granted certiorari, 432 U.S. 905, 97 S.Ct. 2948, 53 L.Ed.2d 1077 (1977), to resolve a conflict between this decision and Georgia Dept. of Transp. v. United States, 430 F.Supp. 823 (ND Ga.1976), appeal docketed, No. 77-16. See also City of New York v. United States, 394 F.Supp. 641 (SDNY 1975), affirmance order, 538 F.2d 308 (CA2 1976); Texas v. United States, 72-2 USTC ¶ 16.048 (WD Tex.1972), aff'd, 73-1 USTC ¶ 16,085 (CA5 1973) (holding that 8% air passenger tax may constitutionally be applied to state employees traveling on official state business). We affirm.
II
10
A review of the development of the constitutional doctrine of state immunity from federal taxation is a necessary preface to decision of this case. For while the Commonwealth concedes that certain types of user fees may constitutionally be applied to its essential activities,11 it urges that the decisions of this Court teach that the validity of any i post levied against a State must be judged by a "bright-line" test: If the measure is labeled a tax and/or imposed or collected pursuant to the Internal Revenue Code, it is unconstitutional as applied to an essential state function even if the revenue measure operates as a user fee. See Brief for Petitioner 14-28. And the Commonwealth maintains that § 4491 is invalid for the additional reason that the values furthered by this constitutional doctrine necessarily require the invalidation of a levy such as that under § 4491 which, as an annual fee, is not directly related to use. See Brief for Petitioner 28-41. Neither contention has merit. The principles that have animated the development of the doctrine of state tax immunity and the decisions of this Court in analogous contexts persuade us that a State enjoys no constitutional immunity from a nondiscriminatory revenue measure, like § 4491, which operates only to ensure that each member of a class of special beneficiaries of a federal program pay a reasonable approximation of its fair share of the cost of the program to the National Government.12 Like the Court of Appeals, we have no occasion to decide either the present vitality of the doctrine of state tax immunity or the conditions under which it might be invoked.
11
That the existence of the States implies some restriction on the national taxing power was first decided in Collector v. Day, 11 Wall. 113, 20 L.Ed. 122 (1871). There this Court held that the immunity that federal instrumentalities and employees then enjoyed from state taxation, see Dobbins v. Commissioners, 16 Pet. 435, 10 L.Ed. 1022 (1842); McCulloch v. Maryland, 4 Wheat. 316, 4 L.Ed. 579 (1819), was to some extent reciprocal and that the salaries paid state judges were immune from a nondiscriminatory federal tax. This immunity of State and Federal Governments from taxation by each other was expanded in decisions over the last third of the 19th century and the first third of this century, see, e. g., Panhandle Oil Co. v. Mississippi ex rel. Knox, 277 U.S. 218, 48 S.Ct. 451, 72 L.Ed. 857 (1928); Indian Motorcycle Co. v. United States, 283 U.S. 570, 51 S.Ct. 601, 75 L.Ed. 1277 (1931) (sales from a private person to one sovereign may not be taxed by the other), but more recent decisions of this Court have confined the scope of the doctrine.
12
The immunity of the Federal Government from state taxation is bottomed on the Supremacy Clause, but the States' immunity from federal taxes was judicially implied from the States' role in the constitutional scheme. Collector v. Day, supra, emphasized that the States had been in existence as independent sovereigns when the Constitution was adopted, and that the Constitution presupposes and guarantees the continued existence of the States as governmental bodies performing traditional sovereign functions. 11 Wall., at 125-126. To implement this aspect of the constitutional plan, Collector v. Day co cluded that it was imperative absolutely to prohibit any federal taxation that directly affected a traditional state function, quoting Mr. Chief Justice Marshall's aphorisms that " 'the power of taxing . . . may be exercised so far as to destroy,' " id., at 123, quoting McCulloch v. Maryland, supra, at 427, and " 'a right [to tax], in its nature, acknowledges no limits.' " 11 Wall., at 123, quoting Weston v. Charleston, 2 Pet. 449, 466, 7 L.Ed. 481 (1829). The Court has more recently remarked that these maxims refer primarily to two attributes of the taxing power. First, in imposing a tax to support the services a government provides to the public at large, a legislature need not consider the value of particular benefits to a taxpayer, but may assess the tax solely on the basis of taxpayers' ability to pay. Second (of perhaps greater concern in the present context), a tax is a powerful regulatory device; a legislature can discourage or eliminate a particular activity that is within its regulatory jurisdiction simply by imposing a heavy tax on its exercise. See National Cable Television Ass'n v. United States, 415 U.S. 336, 340-341, 94 S.Ct. 1146, 1148-1149, 39 L.Ed.2d 370 (1974). Collector v. Day, like the earlier McCulloch v. Maryland, reflected the view that the awesomeness of the taxing power required a flat and absolute prohibition against a tax implicating an essential state function because the ability of the federal courts to determine whether particular revenue measures would or would not destroy such an essential function was to be doubted.
13
As the contours of the principle evolved in later decisions, "cogent reasons" were recognized for narrowly limiting the immunity of the States from federal imposts. See Helvering v. Gerhardt, 304 U.S. 405, 416, 58 S.Ct. 969, 973, 82 L.Ed. 1427 (1938). The first is that any immunity for the protection of state sovereignty is at the expense of the sovereign power of the National Government to tax. Therefore, when the scope of the States' constitutional immunity is enlarged beyond that necessary to protect the continued ability of the States to deliver traditional governmental services, the burden of the immunity is thrown upon the National Government without any corresponding promotion of the constitutionally protected values. See, id., at 416-417, 58 S.Ct., at 973-974; Helvering v. Mountain Producers Corp., 303 U.S. 376, 384-385, 58 S.Ct. 623, 626-627, 82 L.Ed. 907 (1938); Willcuts v. Bunn, 282 U.S. 216, 225, 51 S.Ct. 125, 126, 75 L.Ed. 304 (1931). The second, also recognized by Mr. Chief Justice Marshall in McCulloch v. Maryland, supra, 4 Wheat., at 435-436, is that the political process is uniquely adapted to accommodating the competing demands "for national revenue, on the one hand, and for reasonable scope for the independence of state action, on the other," Helvering v. Gerhardt, supra, 304 U.S., at 416, 58 S.Ct., at 973: The Congress, composed as it is of members chosen by state constituencies, constitutes an inherent check against the possibility of abusive taxing of the States by the National Government.13
14
In tacit, and at times explicit, recognition of these considerations, decisions of he Court either have declined to enlarge the scope of state immunity or have in fact restricted its reach. Typical of this trend are decisions holding that the National Government may tax revenue-generating activities of the States that are of the same nature as those traditionally engaged in by private persons. See, e. g., New York v. United States, 326 U.S. 572, 66 S.Ct. 310, 90 L.Ed. 326 (1946) (tax on water bottled and sold by State upheld); Allen v. Regents, 304 U.S. 439, 58 S.Ct. 980, 82 L.Ed. 1448 (1938) (tax on admissions to state athletic events approved notwithstanding use of proceeds for essential state functions); Helvering v. Powers, 293 U.S. 214, 55 S.Ct. 171, 79 L.Ed. 291 (1934) (tax on operations of railroad by State); Ohio v. Helvering, 292 U.S. 360, 54 S.Ct. 725, 78 L.Ed. 1307 (1934) (tax on state liquor operation); South Carolina v. United States, 199 U.S. 437, 26 S.Ct. 110, 50 L.Ed. 261 (1905) (tax on state-run liquor business). It is true that some of the opinions speak of the state activity taxed as "proprietary" and thus not an immune essential governmental activity, but the opinions of the Members of the Court in New York v. United States supra, the most recent decision, rejected the governmental-proprietary distinction as untenable.14 Rather the majority15 reasoned that a nondiscriminatory tax may be applied to a state business activity where, as was the case there, the recognition of immunity would "accomplish a withdrawal from the taxing power of the nation a subject of taxation of a nature which has been traditionally within that power from the beginning. Its exercise . . . by a nondiscriminatory tax, does not curtail the business of the state government more than it does the like business of the citizen." 326 U.S., at 588-589, 66 S.Ct., at 317 (Stone, C. J., concurring).
15
Illustrative of decisions actually restricting the scope of the immunity is the line of cases that culminated in the overruling of Collector v. Day in Graves v. New York ex rel. O'Keefe, 306 U.S. 466, 59 S.Ct. 595, 83 L.Ed. 927 (1939). See, e. g. Helvering v. Gerhardt, supra; Helvering v. Mountain Producers Corp., supra; Metcalf & Eddy v. Mitchell, 269 U.S. 514, 46 S.Ct. 172, 70 L.Ed. 384 (1926). Collector v. Day, of course, involved a nondiscriminatory tax that was imposed not directly on the State but rather on the salary earned by a judicial officer. Neither Collector v. Day itself nor its progeny or precursors made clear how such a taxing measure could be employed to preclude the States from performing essential functions. In any case, in the line of decisions that culminated in Graves v. New York ex rel. O'Keefe, supra, the Court demonstrated that an immunity for the salaries paid key state officials is not justifiable. Although key state officials are agents of the State, they are also citizens of the United States, so their income is a natural subject for income taxation. See Helvering v. Gerhardt, supra, 304 U.S., at 420 and 422, 58 S.Ct., at 975 and 976.
16
More significantly, because the taxes imposed were nondiscriminatory and thus also applicable to income earne by persons in private employment, the risk was virtually nonexistent that such revenue provisions could significantly impede a State's ability to hire able persons to perform its essential functions. See Graves v. New York ex rel. O'Keefe, supra, 306 U.S., at 484-485, 59 S.Ct. at 600-601; Helvering v. Gerhardt, supra, at 420-421, 58 S.Ct., at 975-976. The only advantage conceivably to be lost by denying the States such an immunity is that essential state functions might be obtained at a lesser cost because employees exempt from taxation might be willing to work for smaller salaries. See 304 U.S., at 420-421, 58 S.Ct., at 975-976. But that was regarded as an inadequate ground for sustaining the immunity and preventing the National Government from requiring these citizens to support its activities. See Graves v. New York ex rel. O'Keefe, supra, at 483 and cases cited in n. 3, 59 S.Ct., at 600. The purpose of the implied constitutional restriction on the national taxing power is not to give an advantage to the States by enabling them to engage employees at a lower charge than those paid by private entities, see Helvering v. Gerhardt, supra, at 421-422, 58 S.Ct., at 975-976, but rather is solely to protect the States from undue interference with their traditional governmental functions. While a tax on the salary paid key state officers may increase the cost of government, it will no more preclude the States from performing traditional functions than it will prevent private entities from performing their missions. See Graves v. New York ex rel. O'Keefe, supra, at 484-485, 59 S.Ct., at 600-601; Helvering v. Gerhardt, supra, at 420-421, 58 S.Ct., at 975-976.
17
These two lines of decisions illustrate the "practical construction" that the Court now gives the limitation the existence of the States constitutionally imposes on the national taxing power; "that limitation cannot be so varied or extended as seriously to impair either the taxing power of the government imposing the tax . . . or the appropriate exercise of the functions of the government affected by it." New York v. United States, 326 U.S., at 589-590, 66 S.Ct., at 318 (Stone, C. J., concurring) quoting Metcalf & Eddy v. Mitchell, supra, 269 U.S., at 523-524, 46 S.Ct., at 174-175. Where the subject of tax is a natural and traditional source of federal revenue and where it is inconceivable that such a revenue measure could ever operate to preclude traditional state activities, the tax is valid. While the Court has by no means abandoned its doubts concerning its ability to make particularized assessments of the impact of revenue measures on essential state operations, compare New York v. United States, supra, at 581, 66 S.Ct., at 313 (opinion of Frankfurter, J.)16 with 326 U.S., at 590, 66 S.Ct., at 318 (Stone, C. J., concurring),17 it has recognized that some generic types of revenue measures could never seriously threaten the continued functioning of the States and hence are outside the scope of the implied tax immunity.
B
18
A nondiscriminatory taxing measure that operates to defray the cost of a federal program by recovering a fair approximation of each beneficiary's share of the cost is surely no more offensive to the constitutional scheme than is either a ax on the income earned by state employees or a tax on a State's sale of bottled water.18 The National Government's interest in being compensated for its expenditures is only too apparent. More significantly perhaps, such revenue measures by their very nature cannot possess the attributes that led Mr. Chief Justice Marshall to proclaim that the power to tax is the power to destroy. There is no danger that such measures will not be based on benefits conferred or that they will function as regulatory devices unduly burdening essential state activities. It is of course, the case that a revenue provision that forces a State to pay its own way when performing an essential function will increase the cost of the state activity. But Graves v. New York ex rel. O'Keefe, and its precursors, see 306 U.S., at 483, 59 S.Ct., at 600 and the cases cited in n. 3, teach that an economic burden on traditional state functions without more is not a sufficient basis for sustaining a claim of immunity. Indeed, since the Constitution explicitly requires States to bear similar economic burdens when engaged in essential operations, see U.S.Const., Amdts. 5, 14; Pennsylvania Coal Co. v. Mahon, 260 U.S. 393, 43 S.Ct. 158, 67 L.Ed. 322 (1922) (State must pay just compensation when it "takes" private property for a public purpose); U.S.Const., Art. I, § 10, cl. 1; United States Trust Co. v. New Jersey, 431 U.S. 1, 97 S.Ct. 1505, 52 L.Ed.2d 92 (1977) (even when burdensome, a State often must comply with the obligations of its contracts), it cannot be seriously contended that federal exactions from the States of their fair share of the cost of specific benefits they receive from federal programs offend the constitutional scheme.
19
Our decisions in analogous contexts support this conclusion. We have repeatedly held that the Federal Government may impose appropriate conditions on the use of federal property or privileges and may require that state instrumentalities comply with conditions that are reasonably related to the federal interest in particular national projects or programs. See, e. g., Ivanhoe Irrigation Dist. v. McCracken, 357 U.S. 275, 294-296, 78 S.Ct. 1174, 1185-1186, 2 L.Ed.2d 1313 (1958); Oklahoma v. Civil Service Comm'n, 330 U.S. 127, 142-144, 67 S.Ct. 544, 552-554, 91 L.Ed. 794 (1947); United States v. San Francisco, 310 U.S. 16, 60 S.Ct. 749, 84 L.Ed. 1050 (1940); cf. National League of Cities v. Usery, 426 U.S. 833, 853, 96 S.Ct. 2465, 2474, 49 L.Ed.2d 245 (1976); Fry v. United States, 421 U.S. 542, 95 S.Ct. 1792, 44 L.Ed.2d 363 (1975). A requirement that States, like all other users, pay a portion of the costs of the benefits they enjoy from federal programs is surely permissible since it is closely related to the federal interest in recovering costs from those who benefit and since it effects no greater interference with state sovereignty than do the restrictions which this Court has approved.
20
A clearly analogous line of decisions is that interpreting provisions in the Constitution that also place limitations on the taxing power of government. See, e. g.., U.S.Const., Art. I, § 8, cl. 3 (restricting power of States to tax interstate commerce); § 10, cl. 3 (prohibiting any state tax that operates "to impose a charge for the privilege of entering, trading in, or lying in a port." Clyde Mallory Lines v. Alabama ex rel. State Docks Comm'n, 296 U.S. 261, 265-266, 56 S.Ct. 194, 196, 80 L.Ed. 215 (1935)). These restrictions, like the implied state tax immunity, exist to protect constitutionally valued activity from the undue and perhaps destructive interference that could result from certain taxing measures. The restriction implicit in the Commerce Clause is designed to prohibit States from burdening the free flow of commerce, see generally Complete Auto Transit, Inc. v. Brady, 430 U.S. 274, 97 S.Ct. 1076, 51 L.Ed.2d 326 (1977), whereas the prohibition against duties on the privilege of entering ports is intended specifically to guard against local hindrances to trade and commerce by vessels. See Packet Co. v. Keokuk, 95 U.S. 80, 85, 24 L.Ed. 377 (1877).
21
Our decisions implementing these constitutional provisions have consistently recognized that the interests protected by these Clauses are not offended by revenue measures that operate only to compensate a government for benefits supplied. See, e. g., Clyde Mallory Lines v. Alabama, supra (flat fee charged each vessel entering port upheld because charge operated to defray cost of harbor policing); Evansville-Vanderburgh Airport Authority v. Delta Airlines, Inc., 405 U.S. 707, 92 S.Ct. 1349, 31 L.Ed.2d 620 (1972) ($1 head tax on enplaning commercial air passengers upheld under the Commerce Clause because designed to recoup cost of airport facilities). A governmental body has an obvious interest in making those who specifically benefit from its services pay the cost and, provided that the charge is structured to compensate the government for the benefit conferred, there can be no danger of the kind of interference with constitutionally valued activity that the Clauses were designed to prohibit.
C
22
Having established that taxes that operate as user fees may constitutionally be applied to the States, we turn to consider the Commonwealth's argument that § 4491 should not be treated as a user fee because the amount of the tax is a flat annual fee and hence is not directly related to the degree of use of the airways.19 This argument has been confronted and rejected in analogous contexts. Capital Greyhound Lines v. Brice, 339 U.S. 542, 70 S.Ct. 806, 94 L.Ed. 1053 (1950), is illustrative. There the Court rejected an attack under the Commerce Clause on an annual Maryland highway tax of "2% upon the fair market value of motor vehicles used in interstate commerce." The carrier argued that the correlation between the tax and use was not sufficiently precise to sustain the tax as a valid user charge. Noting that the tax "should be judged by its result, not its formula, and must stand unless proven to be unreasonable in amount for the privilege granted," id., at 545, 70 S.Ct., at 808, the Court rejected the carrier's argument:
23
"Complete fairness would require that a state tax formula vary with every factor affecting appropriate compensation for road use. These factors, like those relevant in considering the constitutionality of other state taxes, are so countless that we must be content with 'rough approximation rather than precision.' . . . Each additional factor adds to administrative burdens of enforcement, which fall alike on taxpayers and government. We have recognized that such burdens may be sufficient to justify states in ignoring even such a key factor as mileage, although the result may be a tax which on its face appears to bear with unequal weight upon different carriers. . . . Upon this type of reasoning rests our general rule that taxes like that of Maryland here are valid unless the amount is shown to be in excess of fair compensation for the privilege of using state roa s." Id., at 546-547, 70 S.Ct., at 809. (Citations and footnotes omitted.)
24
See also Aero Mayflower Transit Co. v. Board of Railroad Comm'rs, 332 U.S. 495, 68 S.Ct. 167, 92 L.Ed. 99 (1947) (taxes of $10 and $15 per vehicle sustained against Commerce Clause challenges); Clyde Mallory Lines v. Alabama ex rel. State Docks Comm'n, supra (flat fee designed to defray cost of policing port upheld against claim it was constitutionally prohibited tax on privilege of entering harbor). This Court recently relied upon this reasoning to uphold a tax on commercial aviation activity. In Evansville-Vanderburgh Airport Authority v. Delta Airlines, Inc., supra, we sustained against claims based on the Commerce Clause and on the right to travel a $1 head tax on commercial airline passengers. We held that such taxes are valid so long as they (1) do not discriminate against interstate commerce, (2) are based upon some fair approximation of use, and (3) are not shown to be excessive in relation to the cost to the government of the benefits conferred. 405 U.S., at 716-720, 92 S.Ct., at 1355-1357.
25
The Commonwealth, of course, recognizes that flat fees, and even flat annual fees, have been held constitutionally permissible in these contexts. It urges, however, that such "rough approximations of cost," while appropriate compensatory measures in other settings, should not be permissible here. It maintains that the values protected by the doctrine of state tax immunity require that any user tax be closely calibrated to the amount of any taxpayer's actual use, and it suggests that we—for purposes of the state tax immunity doctrine only—define user fees as charges for measurable amounts of use of government facilities.
26
We note first that it is doubtful that the National Government could recover the costs of its aviation activities from those direct beneficiaries without making at least some use of annual flat fees. In arguing that the Revenue Act provisions are not sufficiently user related, the Commonwealth places extensive reliance upon the DOT Study, prepared at the direction of Congress,20 of the best way to recoup the costs of the federal aviation activities from its beneficiaries. While the report recognized that it would be generally possible, albeit costly in the case of general aviation, to tie the charges to specific measurable benefits received, see DOT Study 61, it indicated that certain costs imposed by general aviation could only be recovered through flat fees. Id., at 61 n. 2.
27
But even if it were feasible to recover all costs through charges for measurable amounts of use of Government facilities, we fail to see how such a requirement would appreciably advance the policies embodied in the doctrine of state tax immunity. Since a State has no constitutional complaint when it is required to pay the cost of benefits received, the Commonwealth's only legitimate fear is that the flat fee requirement may result in the collection from it of more than its actual "fair share." We observe first that where the charges imposed by the Federal Government apply to large numbers of private parties as well as to state activities, it is as likely as not that the user fee will result in exacting less money from the State than it would have to pay under a perfect user fee system. More fundamentally, even when an annu l flat fee results in some overcharges, the Commonwealth's solution would often increase the fiscal burden on the States. If the National Government were required more precisely to calibrate the amount of the fee to the extent of the actual use of the airways, administrative costs would increase and so would the amount of revenue needed to operate the system. The resulting increment in a State's actual fair share might well be greater than any overcharge resulting from the present fee system. But the complete answer to the Commonwealth's concern is that even if the flat fee does cost it somewhat more than it would have to pay under a perfect user fee system, there is still no interference with the values protected by the implied constitutional tax immunity of the States. The possibility of a slight overcharge is no more offensive to the constitutional structure than is the increase in the cost of essential operations that results either from the fact that those who deal with the State may be required to pay nondiscriminatory taxes on the money they receive or from the fact a jury may award an eminent domain claimant an amount in excess of what would be "just compensation" in an ideal system of justice.
28
Whatever the present scope of the principle of state tax immunity, a State can have no constitutional objection to a revenue measure that satisfies the three-prong test of Evansville-Vanderburgh Airport Authority v. Delta Airlines, Inc., —substituting "state function" for "interstate commerce" in that test. So long as the charges do not discriminate against state functions, are based on a fair approximation of use of the system, and are structured to produce revenues that will not exceed the total cost to the Federal Government of the benefits to be supplied, there can be no substantial basis for a claim that the National Government will be using its taxing powers to control, unduly interfere with, or destroy a State's ability to perform essential services. The requirement that total revenues not exceed expenditures places a natural ceiling on the total amount that such charges may generate and the further requirement that the measure be reasonable and nondiscriminatory precludes the adoption of a charge that will unduly burden state activities.21
III
29
Applying these principles to this case demonstrates that the Commonwealth's claim of constitutional immunity is particularly insubstantial. First, there is no question but that the tax imposed by § 4491 is nondiscriminatory. It applies not only to private users of the airways but also to civil aircraft operated by the United States—facts which minimize, if not eliminate entirely, the basis for a conclusion that § 4491 might be an abusive exercise of the taxing power. Indeed, the Revenue Act discriminates in favor of the States since it retains the States' exemption from the 7-cent-per-gallon fuel tax that applies to private noncommercial general aviation—a fact that illustrates the manner in which the political process is peculiarly adapted to the protection of state interests.
30
Second, the tax satisfies the requirement that it be a fair approximation of the cost of the benefits civil aircraft receive from the federal activities. As we have indicated, the legislative background and terms of the Revenue Act indicate that Congress believed that four measures, taken together, would fairly eflect some of the cost of the benefits that redound to the noncommercial general aircraft that fly in the navigable airspace of the United States: a 7-cent-per-gallon fuel tax, a 5-cent-per-pound tax on aircraft tires, a 10-cent-per-pound tax on tubes, see 26 U.S.C. § 4071, and the annual aircraft registration tax. See nn. 4 and 8, supra. The formula contained in these four measures taken together does not, of course, give weight to every factor affecting appropriate compensation for airport and airway use. A probable deficiency in the formula arises because not all aircraft make equal use of the federal navigational facilities or of the airports that have been planned or constructed with federal assistance. But the present scheme nevertheless is a fair approximation of the cost of the benefits each aircraft receives. Every aircraft that flies in the navigable airspace of the United States has available to it the navigational assistance and other special services supplied by the United States.22 And even those aircraft, if there are any, that have never received specific services from the National Government benefit from them in the sense that the services are available for their use if needed and in that the provision of the services makes the airways safer for all users.23 The four taxes, taken together, fairly reflect the benefits received, since three are geared directly to use, whereas the fourth, the aircraft registration tax, is designed to give weight to factors affecting the level of use of the navigational facilities. See n. 9, supra. A more precisely calibrated formula—which would include landing fees, charges for specific services received, and less reliance on annual flat fees, see DOT Study 62—would, of course, be administratively more costly.
31
It follows that a State may not complain of the application of § 4491 on the ground it is not a fair approximation of use. Since the fuel tax, tire and tube tax, and annual registration fee together constitute an appropriate means of recovering the amount of the federal investment, a State, being exempt from the fuel, tire, and tube taxes, can have no constitutional objection to the application of the registration fee alone.
32
Finally, the tax is not excessive in relation to the cost of the Government benefits supplied. When Congress enacted the Revenue Act, it contemplated that the user fees imposed on civil aircraft would not be sufficient to cover the federal expenditures on civil aviation in any one year, see n. 4, supra, and the actual experience during the first years of operation was that the revenues fell far short of covering the annual civil aviation outlays.24 Since the Commonwealth pays far less than private noncommercial users of the airways, there therefore is no basis for a conclusion that the application of the registration tax to the States produces revenues in excess of the costs25 incurred by the Federal Government.26
33
Affirmed.
34
Mr. Justice BLACKMUN took no part in the consideration or decision of this case.
35
Mr. Justice STEWART and Mr. Justice POWELL, concurring in part and concurring in the judgment.
36
The petitioner has conceded that a nondiscriminatory user fee may constitutionally be imposed upon a State, and, for substantially the reasons stated in Part II-B of the plurality opinion, we agree. Moreover, we agree with the Court that the aircraft registration tax imposed by 26 U.S.C. § 4491 is such a user fee. We therefore see no need to discuss the general contours of state immunity from federal taxation, as the plurality does in Part II-A of its opinion.
37
On this basis we join Parts I, II-C, and III of the Court's opinion and concur in its judgment.
38
Mr. Justice REHNQUIST, with whom THE CHIEF JUSTICE joins, dissenting.
39
Petitioner, the Commonwealth of Massachusetts, brought suit against the United States to recover a charge of $131.43 plus penalties and interest imposed upon it by reason of its use of a helicopter in connection with its state police force. The United States moved to dismiss petitioner's complaint, and its motion was granted by the District Court for the District of Massachusetts. The Court of Appeals for the First Circuit affirmed that judgment, but expressly chose to do so on a narrower ground than that relied upon by the District Court. 548 F.2d 33, 34 (1977). The Court of Appeals found it unnecessary to examine the law of intergovernmental tax immunity, because it concluded that the charge i posed here "is, in reality, a user charge." Id., at 35. While the Court of Appeals recognized that the labeling of an assessment as a user charge is not of itself conclusive, cf. Packet Co. v. Keokuk, 95 U.S. 80, 86, 24 L.Ed. 377 (1877), it quoted the following language in explaining its understanding of the distinction between a tax and a user charge:
40
" 'It is a tax or duty that is prohibited: something imposed by virtue of sovereignty, not claimed in right of proprietorship. Wharfage is of the latter character. Providing a wharf to which vessels may make fast, or at which they may conveniently load or unload, is rendering them a service . . . . [A]nd, when compensation is demanded for the use of the wharf, the demand is an assertion, not of sovereignty, but of a right of property.' " 548 F.2d, at 36, quoting Packet Co. v. Keokuk, supra, at 85.
41
The United States has defended its judgment in this Court solely on the basis that the Court of Appeals was correct in concluding that the exaction in question was a user charge. Its brief states:
42
"[T]his case presents no occasion to consider the present status of the doctrine of implied constitutional immunity of the states from federal taxation. Here, the annual excise tax on the use of civil aircraft is not a tax subject to any constitutional restrictions but is simply a required payment by the user for airport and airway facilities funded or provided by the federal government. Petitioner can no more claim the right to free use of these facilities than it could, for example, use the postal service without purchasing stamps." Brief for United States 6-7.
43
It is therefore somewhat surprising to find Part II-A of today's opinion (which reflects the views of only four Justices) discussing at length the scope of intergovernmental tax immunity. Petitioner insists that it may be able to prove at a trial of the action that the charge is not in fact a user fee; the United States insists that it is a user fee, apparently as a matter of law. This is the issue before the Court, and the only issue before it.
44
I agree that the United States would have a valid defense to this action if it had established, or could establish, that the charge imposed was reasonably related to services rendered to the petitioner by agencies of the Federal Government. I further conclude that the United States would have a valid defense to this action if it could establish that the charge was based on use by the petitioner of some property which the United States owned or in which it had some other type of proprietary interest. Cf. Packet Co. v. Keokuk, supra, at 84-85. I am at a loss to know why the Court feels obligated to draw on cases decided under the Commerce Clause, U.S.Const., Art. I, § 8, cl. 3, to establish its vague and convoluted three-part test to determine whether the user fee is valid, since cases regarding intergovernmental relations raise significantly different considerations. Commerce Clause cases, while no doubt useful analogies, are not required to deal with the fact that the payer of the user fee is a State in our constitutional structure, and that its essential sovereign interests are entitled to greater deference than is due to ordinary business enterprises which may be regulated by both State and Federal Governments. Since the United States concedes that the absence of intergovernmental immunity to user fees is a reciprocal one, Tr. of Oral Arg. 26-28, it stands to lose as much from the vagueness of the Court's test as do petitioner and its sister States.
45
Regardless of the phrasing of the test, I cannot accept the Court's conclusion that the Commonwealth need not be given the opportunity to prove that the test has not been satisfied. The Court, relying heavily on our opinion in Evansville-Vanderburgh Airport Authority v. Delta Airlines, Inc., 405 U.S. 707, 92 S.Ct. 1349, 31 L.Ed.2d 620 (1972), holds that the fee need not be precisely calibrated to the alue of the service furnished so long as it is not shown to be excessive in relation to the cost to the United States of the benefits conferred. Ante, at 466-467. But in the cases considered in that opinion, the Court explicitly noted that the challengers had been given the chance to prove the fee excessive and had failed to do so. 405 U.S., at 720, 92 S.Ct., at 1357. In addition, there was no doubt that the municipal corporations which sought to impose the head tax in fact owned the airport facilities, nor that passengers who were paying the head tax were taking advantage of the services provided by those facilities.
46
Neither of those conclusions can be reached as a matter of law on the record before us. The United States does not "own" the airspace above its territorial boundaries, although it undoubtedly has considerable authority to regulate the use of that airspace. Nor does the United States, so far as this record shows, "own" any of the facilities which are used by the helicopter in question. Indeed, it is not even clear from this record whether the helicopter in question has made use of any of the services, such as air traffic controllers, which are furnished by the United States to those who make use of the airways. Were any of these facts to be found to exist by a finder of fact, I might well concur in the Court's judgment. I cannot, under my view of the law, accept as a substitute for such factual findings House and Senate Reports which merely state that a tax of this kind is " 'generally viewed as a user charge.' " Ante, at 449 n. 6, quoting H.R.Rep.No.91-601, p. 46 (1969), U.S.Code Cong. & Admin.News 1970, p. 3091.
47
The Court's reliance upon Clyde Mallory Lines v. Alabama ex rel. State Docks Comm'n, 296 U.S. 261, 56 S.Ct. 194, 80 L.Ed. 215 (1935), which arose under the Duty of Tonnage Clause of the Constitution, Art. I, § 10, cl. 3, as well as the Commerce Clause, is misplaced in this regard. The Court there held that neither provision was violated by a flat fee which was charged by the State as compensation for the "policing service rendered by the state in the aid of the safe and efficient use of its port." 296 U.S., at 264, 56 S.Ct., at 195. The Court held that the vessels were properly liable for the fee despite the fact that they had not received any special assistance, because the evidentiary record affirmatively demonstrated that "[t]he benefits which flow from the enforcement of [the] regulations . . . inure to all who enter [the harbor]." Id., at 266, 56 S.Ct., at 196.
48
It may be that upon further development of the record in this case, by trial or by procedures leading to summary judgment, a situation similar to that in Clyde Mallory Lines, supra, could be shown by the United States to exist. But that does not justify the order of the District Court dismissing petitioner's complaint without such development. I would therefore reverse the judgment of the Court of Appeals and remand for further proceedings.
*
Mr. Justice STEWART and Mr. Justice POWELL join only Parts I, II-C, and III of this opinion. Mr. Justice WHITE, Mr. Justice MARSHALL, and Mr. Justice STEVENS join the entire opinion.
1
In pertinent part, § 4491 provides:
"(a) Imposition of Tax.
"A tax is hereby imposed on the use of any taxable civil aircraft during any year at the rate of—
"(1) $25, plus
"(2)(A) in the case of an aircraft (other than a turbine-engine-powered aircraft) 2 cents a pound for each pound of the maximum certificated takeoff weight in excess of 2,500 pounds, or (B) in the case of any turbine-engine-powered aircraft, 31/2 cents a pound for each pound of the maximum certificated takeoff weight."
Title 26 U.S.C. § 4492(c)(2) defines "use" as flying an aircraft "in the navigable airspace of the United States." "[T]axable civil aircraft" includes aircraft owned and operated by a State. § 4492(a); see n. 6, infra.
2
These include: assisting and controlling aircraft operations during takeoffs and landings at our Nation's larger airports; air traffic control to Instrument Flight Rule (IFR) users and navigation assistance to all categories of aircraft after takeoff operations are concluded and prior to landing; and miscellaneous services for both Visual Flight Rule (VFR) and IFR users, such as filing flight plans, weather information, and rescue operations. See Department of Transportation, Airport and Airway Cost Allocation Study, Part 1, Report: Determination, Allocation, and Recovery of System Costs 21 (1973) (hereinafter DOT Study). These services are provided, principally by the Federal Aviation Administration, pursuant to 49 U.S.C. § 1348.
3
Believing that the public at large benefits from the existence and operation of the military, Congress decided that the costs imposed on the national airsystem by the military should be paid for from general revenues. See H.R.Rep.No.91-601, pp. 3-4, 38 (1969); cf. S.Rep.No.91-699, pp. 4-5, 7 (1970).
4
Congress projected that the total aviation expenditures would increase from $1,029 million in fiscal 1970 to $1,727 million in fiscal 1979 and that total revenues from the user taxes would increase from $446.5 million in fiscal 1970 to $1,399.9 million in fiscal 1979. The additional required appr priations or the total deficit would thus decrease from $582.5 million in fiscal 1970 to $327.1 million in fiscal 1979. Because the military share of the total expenditures—which is paid from general revenues, see n. 3, supra —will increase from $178 million in fiscal 1970 to $291 million in fiscal 1979, civil aviation would pay an increasing share of the federal expenditures allocable to it. The "civil share deficit" would decrease from $404.5 million in fiscal 1970 to $36.1 million in fiscal 1979. H.R.Rep.No.91-601, p. 38 (1969); see S.Rep.No.91-699, pp. 4-5, 7 (1970).
5
The authority to use trust fund monies for the operating expenses of the air navigational facilities, temporarily suspended in 1971, see Pub.L. 92-172, 85 Stat. 491, has since been restored. See 90 Stat. 873-874.
6
The terms of the statutory provision make clear that Congress intended it to apply to state-owned aircraft. By the statutory terms, the levy is to be imposed on "taxable civil aircraft," which is defined by 26 U.S.C. § 4492(a)(1) to include any engine-driven aircraft "registered, or required to be registered under section 501(a) of the Federal Aviation Act of 1958 [72 Stat. 771] (49 U.S.C. § 1401(a))." Since § 501(a) of the Federal Aviation Act provides that the only aircraft that may be lawfully operated without having been registered are aircraft of the national defense forces of the United States, there is no question under the statute but that state-owned aircraft are subject to the registration tax.
The legislative history supports this view. In connection with the discussion of one of the other taxes enacted by the Revenue Act, the Committee Reports explained that it was terminating the statutory exemption that previously had operated to benefit the States "since this tax is now generally viewed as a user charge[, so] there would appear to be no reason why these governmental [bodies] should not pay for their share of the use of the airway facilities." H.R.Rep. 46, U.S.Code Cong. & Admin.News 1970, p. 3091; see S.Rep. 17-18. Obviously, this reasoning is equally applicable to all measures the Congress conceived of as user fees. Moreover, the Committee Reports' discussion of § 4491 explicitly stated that the tax was "based upon the premise that all aircraft should pay a basic fee as an entry fee to use the system," H.R.Rep. 40 (emphasis supplied), U.S.Code Cong. & Admin.News 1970, p. 3085; see S.Rep. 20-21, and further that the tax applied to civil aircraft owned by the United States. See H.R.Rep. 49; S.Rep. 20. Since the statute by its terms includes state-owned aircraft and since the legislative history broadly indicates that all government-owned civil aircraft are covered, petitioner has conceded that the statute applies. See Brief for Petitioner 8-9, n. 1; Tr. of Oral Arg. 6-7.
7
The navigable airspace of the United States is administratively delineated pursuant to 49 U.S.C. § 1301(24).
8
The following table from the legislative history illustrates the congressional understanding that the annual registration fee would recover only a small percentage of the costs imposed on the airsystem by civil aviation:
"TABLE 3.-REVENUES FROM AVIATION USER TAXES,
SELECTED FISCAL YEARS, 1965 79
(In millions of dollars)
Actual
User tax 1965 1967 1969
Passenger ticket tax $147.5 $194.5 $259.5
Cargo tax, 5 percent
Fuel tax 16.7 14.4 11.0
International departure tax, $3
Taxes on tires and tubes used
on aircraft 2.0 2.4 2.6
Aircraft registration taxes -- -- --
Total 166.2 211.3 273.1
TABLE CONTINUED
Estimated
1970 1971 1974 1979
Passenger ticket tax $373.7 $507.2 $679.2 $1,083.2
Cargo tax, 5 percent 18.7 42.7 63.1 134.2
Fuel tax 26.5 45.8 54.3 76.7
International departure tax 12.4 27.1 36.5 58.7
Taxes on tires and tubes used
on aircraft 2.8 3.0 3.5 5.0
Aircraft registration taxes 12.4 26.6 32.3 42.1
446.5 652.4 868.9 1,399.9
"Source: U. S. Treasury Department and Federal Aviation Administra-
tion, Office of Aviation Economics." H.R.Rep. 39 (footnotes omitted); see S.Rep. 10.
Indeed, this table overstates the estimated revenues from the registration tax since it assumes that the rate of tax on piston aircraft will be $25 plus 2 cents per pound, rather than the $25 plus 2 cents for each pound in excess of 2,500 pounds that is provided for in § 4491. Ibid. As the table indicates, aircraft are subject to an aircraft tire and tube tax, which is imposed by 26 U.S.C. § 4071, but this is a highly insignificant revenue-generating measure.
9
The reasons the registration tax was added to the Revenue Act are clearly stated in the Committee Reports:
"The [Committee] determine[s] that, to some extent, the costs of the airport and airway system are incurred because many aircraft may use the system at some time, even though most of the time most of these craft are not in the air. In addition, it appears that heavier and faster aircraft are generally responsible for much of the increased need of sophisticated control facilities and approach and landing facilities." H.R.Rep. 48, U.S.Code Cong. & Admin.News 1970, p. 3093; see S.Rep. 8-9.
Thus, the registration tax was included in the bill in an attempt to recover part of the marginal cost imposed on the national airsystem by the addition of a possible user and to ensure that the fee system reflects in some manner the additional costs that heavier and faster (i. e., turbine-powered) aircraft impose upon it.
10
At oral argument, the Commonwealth informed us that it owns three aircraft in addition to the helicopter that is the subject of this case. See, Tr. of Oral Arg. 4.
11
At oral argument, it conceded that a State could not, even when performing traditional governmental activities, insist on the right to have the Postal Service carry unstamped letters or if there were such roads—to use federally constructed toll roads without paying the required toll. See id., at 8. Its argument before this Court is that there is a difference of constitutional magnitude between such charges and the tax imposed by § 4491.
12
The Commonwealth's arguments and the questions presented in its brief to this Court, see Brief for Petitioner 3-4, establish that our Brother REHNQUIST's dissent errs in suggesting that the discussion establishing this proposition is superfluous. See post, at 472. Moreover, the dissent's assertion to the contrary notwithstanding, the United States' brief in this Court recognizes that a decision validating § 4491 requires rejection of the Commonwealth's submission concerning the scope of the doctrine of state tax immunity. See Brief for United States 22-23, n. 19.
13
Although the opinion for the Court in National League of Cities v. Usery, 426 U.S. 833, 96 S.Ct. 2465, 49 L.Ed.2d 245 (1976), rejects the argument that the operation of the political process eliminates any reason for reviewing federalism-based challenges to federal regulation of the States qua States, we do no believe it follows that the existence of "political checks" has no relevance to a determination of the proper scope of a State's immunity from federal taxation. We have regularly relied upon the existence of such political checks in considering the scope of the National Government's immunity from state taxation. See, e. g., United States v. County of Fresno, 429 U.S. 452, 97 S.Ct. 699, 50 L.Ed.2d 683 (1977).
14
All eight Justices who participated in the case indicated that they regarded the governmental-proprietary distinction as an untenable one. See 326 U.S., at 579-581, 66 S.Ct., at 313-314 (opinion of Frankfurter, J., joined by Rutledge, J.); id., at 586, 66 S.Ct., at 316 (Stone, C. J., concurring, joined by Reed, Murphy, and Burton, JJ.); and id., at 591, 66 S.Ct. at 318 (Douglas, J., dissenting, joined by Black, J.).
15
In New York v. United States, Mr. Justice Frankfurter announced the judgment of the Court and an opinion joined by only one of the eight Justices participating in the case. That opinion upheld the tax on a broader ground than the concurring opinion of Mr. Chief Justice Stone, joined by three Justices. We therefore conclude that a majority supported the Chief Justice's rationale.
16
"Any implied limitation upon the supremacy of the federal power to levy a tax like that now before us, in the absence of discrimination against State activities, brings fiscal and political factors into play. The problem cannot escape issues that do not lend themselves to judgment by criteria and methods of reasoning that are within the professional training and special competence of judges."
17
"Since all taxes must be laid by general, that is, workable, rules, the effect of [state] immunity on the national taxing power is to be determined not quantitatively but by its operation and tendency in withdrawing taxable property or activities from the reach of federal taxation."
18
As is implicit from our summary of the development of the law of state tax immunity, this doctrine does not inflexibly require the invalidation of any revenue measure that is labeled or operates as a tax. That § 4491 is called or can be characterized as a "tax" thus possesses no talismanic significance. We observe, moreover, that Congress did regard § 4491 as a user fee.
19
Only a few words are needed to reject the Commonwealth's suggestion that the United States may not impose this tax under a user-fee rationale because the United States has no proprietary interest in the airports and airways of the United States. Quite simply, we think there is no basis for the position that user fees are constitutional only when the United States has some sort of a right of property. A user-fee rationale may be invoked whenever the United States is recovering a fair approximation of the cost of benefits supplied.
20
Provisions in both the Development Act and the Revenue Act directed the Department of Transportation to conduct a study of how best to recover the costs imposed on the national airsystem by each class of users. See § 4 of the Development Act, 84 Stat. 220, 49 U.S.C. § 1703; § 209 of the Revenue Act, 84 Stat. 252. The existence of these provisions underscores the fact, which is further illustrated by the fact that the taxes imposed by the Revenue Act expire in 1980, see, e. g., 26 U.S.C. § 4491(e), that Congress regarded the Revenue Act user fees as an interim approach to the recovery of aviation costs from their beneficiaries.
21
Our Brother REHNQUIST's characterization of this test (which the United States urged us to adopt, see Brief for United States 19-20) as "vague and convoluted" see post, at 472, overlooks its consistent applications for years by the Court, without any apparent difficulty, in cases involving the negative implications of the Commerce Clause. It further overlooks that, as our experience today indicates, see Part III, infra, there is no reason to suppose that the Court will have any different experience in applying this test in cases involving a State's claim of immunity from federal taxation.
22
Although a helicopter may be expected to make less intensive use of the federal facilities and services than would an airplane, the Commonwealth has not denied that its state police helicopter has made some use of the federal services, and it conceded as much at oral argument. See Tr. of Oral Arg. 20. In any case, the Commonwealth has indicated that its submission in the case at bar does not depend in any way on the fact that a helicopter is involved, but rather is equally applicable to all aircraft. Ibid.
23
Because aircraft do not invariably use the federal services each time they fly, the Commonwealth suggests that the case at bar is analogous to Cannon v. New Orleans, 20 Wall. 577, 22 L.Ed. 417 (1874). There, this Court held that when an ordinance taxed the use of wharves or riverbanks indiscriminately, rather than only the use of wharves built by the city, the exaction could not be justified as compensation for use of municipal facilities or services. What distinguishes the case at bar is that the federal services are directed at the entire navigable airspace of the United States and inure to the benefit of all users. The analogous decision is Clyde Mallory Lines v. Alabama ex rel. State Docks Comm'n,, 296 U.S. 261, 56 S.Ct. 194, 80 L.Ed. 215 (1935), in which the Court held that a vessel that has not been the recipient of any police services could be required to pay a charge designed to defray their costs since the services redounded to the benefit of all vessels in the port.
24
The DOT Study, which the Commonwealth asks us judicially to notice, concludes that the system of user fees has not come close to recovering the costs imposed on the national airsystem by the civil users of the airways in the first years of the program. Id., at 43. Indeed, it finds that the greatest shortfall is the revenue produced by the charges imposed on general aviation, a category that, of course, includes the Commonwealth's aircraft. See id., at 43-50.
25
Even if the revenues in any one year exceeded the outlays, it would not follow that the tax is invalid as applied. In Evansville-Vanderburgh Airport Authority v. Delta Airlines, Inc., 405 U.S. 707, 719-720, 92 S.Ct. 1349, 1356-1357, 31 L.Ed.2d 620 (1972), we indicated that the validity of the tax was determined by comparing total revenue with total outlays: i. e., a surplus of revenue over outlays in any one year can be offset against actual deficits of past years and perhaps against projected deficits of future years.
26
We regard our Brother REHNQUIST's view that the record does not support a conclusion that § 4491 is a user fee as perhaps another way of stating disagreement with our understanding of the governing legal principles. Compare supra, at 463 n. 19, and 467-469, with post, at 473-474. For under our view of those principles, there plainly is no basis to remand for an evidentiary hearing. In light of the undisputed nature of the tax and the Commonwealth's reliance upon the DOT Study, there is no basis for a dispute among the parties concerning the operation of § 4491, the nature of the services that the United States supplies for the benefit of all users of the airways, or the relationship between the revenues from the various user fees and the federal expenditures on the national airsystem. In this circumstance the record amply justifies our conclusion that each prong of the Evansville-Vanderburgh Airport Authority v. Delta Airlines, Inc., test is satisfied.
| 910
|
435 U.S. 519
98 S.Ct. 1197
55 L.Ed.2d 460
VERMONT YANKEE NUCLEAR POWER CORPORATION, Petitioner,v.NATURAL RESOURCES DEFENSE COUNCIL, INC., et al. CONSUMERS POWER COMPANY, Petitioner, v. Nelson AESCHLIMAN et al.
Nos. 76-419, 76-528.
Argued Nov. 28, 1977.
Decided April 3, 1978.
Syllabus
In No. 76-419, after extensive hearings before the e Atomic Safety and Licensing Board (Licensing Board) and over respondents' objections, the Atomic Energy Commission (AEC) granted petitioner Vermont Yankee Nuclear Power Corp. a license to operate a nuclear power plant, and this ruling was affirmed by the Atomic Safety and Licensing Appeal Board (Appeal Board). Subsequently, the AEC, specifically referring to the Appeal Board's decision, instituted rulemaking proceedings to deal with the question of considering environmental effects associated with the uranium fuel cycle in the individual cost-benefit analyses for light-water-cooled nuclear power reactors. In these proceedings the Licensing Board was not to use full formal adjudicatory procedures. Eventually, as a result of these rulemaking proceedings, the AEC issued a so-called fuel cycle rule. At the same time the AEC approved the procedures used at the hearing; indicated that the record, including the Environmental Survey, provided an adequate data base for the rule adopted; and ruled that to the extent the rule differed from the Appeal Board's decision such decision had no further precedential significance, but that since the environmental effects of the uranium fuel cycle had been shown to be relatively insignificant, it was unnecessary to apply the rule to Vermont Yankee's environmental reports submitted prior to the rule's effective date or to the environmental statements circulated for comment prior to such date. Respondents appealed from both the AEC's adoption of the fuel cycle rule and its decision to grant Vermont Yankee's license. With respect to the license, the Court of Appeals first ruled that in the absence of effective rulemaking proceedings, the AEC must deal with the environmental impact of fuel reprocessing and disposal in individual licensing proceedings, and went on to hold that despite the fact that it appeared that the AEC employed all the procedures required by the Administrative Procedure Act (APA) in 5 U.S.C. § 553 (1976 ed.) and more, the rulemaking proceedings were inadequate and overturned the rule, and accordingly the AEC's determination with respect to the license was also remanded for further proceedings. In No. 76-528, after examination of a report of the Advisory Committee on Reactor Safeguards (ACRS) and extensive hearings, and over respondent intervenors' objections, the AEC granted petitioner Consumers Power Co. a permit to construct two nuclear reactors, and this ruling was affirmed by the Appeal Board. At about this time the Council on Environmental Quality revised its regulations governing the preparation of environmental impact statements so as to mention for the first time the necessity for considering energy conservation as one of the alternatives to a proposed project. In view of this development and a subsequent AEC ruling indicating that all evidence of energy conservation should not necessarily be barred at the threshold of AEC proceedings, one of the intervenors moved to reopen the permit proceedings so that energy conservation could be considered, but the AEC declined to reopen the proceedings. Respondents appealed from the granting of the construction permit. The Court of Appeals held that the environmental impact statement for the construction of the reactors was fatally defective for failure to examine energy conservation as an alternative to plants of this size, and that the ACRS report was inadequate and should have been returned to the ACRS for further elucidation, understandable to a layman, and remanded the case for appropriate consideration of waste disposal and other unaddressed issues. Held :
1. Generally speaking, 5 U.S.C. § 553 (1976 ed.) establishes the maximum procedural requirements that Congress was willing to have the courts impose upon federal agencies in conducting rulemaking proceedings, and while agencies are free to grant additional procedural rights in the exercise of their discretion, reviewing courts are generally not free to impose them if the agencies have not chosen to grant them. And, even apart from the APA, the formulation of procedures should basically be left within the discretion of the agencies to which Congress has confided the responsibility for substantive judgments. Pp. 523-525.
2. The Court of Appeals in these cases has seriously misread or misapplied such statutory and decisional law cautioning reviewing courts against engrafting their own notions of proper procedures upon agencies entrusted with substantive functions by Congress, and moreover as to the Court of Appeals' decision with respect to agency action taken after full adjudicatory hearings, it improperly intruded into the agency's decision-making process. Pp. 535-558.
(a) In No. 76-419, the AEC acted well within its statutory authority when it considered the environmental impact of the fuel processes when licensing nuclear reactors. Pp. 538-539.
(b) Nothing in the APA, the National Environmental Policy Act of 1969 (NEPA), the circumstances of the case in No. 76-419, the nature of the issues being considered, past agency practice, or the statutory mandate under which the AEC operates permitted the Court of Appeals to review and overturn the rulemaking proceeding on the basis of the procedural devices employed (or not employed) by the AEC so long as the AEC used at least the statutory minima, a matter about which there is no doubt. Pp. 539-548.
(c) As to whether the challenged rule in No. 76-419 finds sufficient justification in the administrative proceedings that it should be upheld by the reviewing court the case is remanded so that the Court of Appeals may review the rule as the APA provides. The court should engage in this kind of review and not stray beyond the judicial province to explore the procedural format or to impose upon the agency its own notion of which procedures are "best" or most likely to further some vague, undefined public good. P. 549.
(d) In No. 76-528, the Court of Appeals was wrong in holding that rejection of energy conservation on the basis of the "threshold test" was capricious and arbitrary as being inconsistent with the NEPA's basic mandate to the AEC, since the court's rationale basically misconceives not only the scope of the agency's statutory responsibility, but also the nature of the administrative process, the thrust of the agency's decision, and the type of issues the intervenors were trying to raise. The court seriously mischaracterized the AEC's "threshold test" as placing "heavy substantive burdens on intervenors." On the contrary the AEC's stated procedure as requiring a showing sufficient to require reasonable minds to inquire further is a procedure well within the agency's discretion. Pp. 549-555.
(e) The Court of Appeals' holding in No. 76-528 that the Licensing Board should have returned the ACRS report to the ACRS for further elaboration is erroneous as being an unjustifiable intrusion into the administrative process, and there is nothing in the relevant statutes to justify what the court did. Pp. 556-558.
No. 76-419, 178 U.S.App.D.C. 336, 547 F.2d 633, and No. 76-528, 178 U.S.App.D.C. 325, 547 F.2d 622, reversed and remanded.
1
Thomas G. Dignan, Jr., Boston, Mass., for petitioner in No. 76-419.
2
Lawrence G. Wallace, Washington, D. C., for respondent Nuclear Regulatory Commission in support of petitioners.
3
Charles A. Horsky, Washington, D. C., for petitioner in No. 76-528.
4
Richard E. Ayres, Washington, D. C., for respondents in No. 76-419.
5
Myron M. Cherry, Chicago, Ill., for respondents in No. 76-528.
6
[Amicus Curiae Information from pages 522-523 intentionally omitted]
7
Mr. Justice REHNQUIST delivered the opinion of the Court.
8
In 1946, Congress enacted the Administrative Procedure Act, which as we have noted elsewhere was not only "a new, basic and comprehensive regulation of procedures in many agencies," Wong Yang Sung v. McGrath, 339 U.S. 33, 70 S.Ct. 445, 94 L.Ed. 616 (1950), but was also a legislative enactment which settled "long-continued and hard-fought contentions, and enacts a formula upon which opposing social and political forces have come to rest." Id., at 40, 70 S.Ct., at 448. Section 4 of the Act, 5 U.S.C. § 553 (1976 ed.), dealing with rulemaking, requires in subsection (b) that "notice of proposed rule making shall be published n the Federal Register . . .," describes the contents of that notice, and goes on to require in subsection (c) that after the notice the agency "shall give interested persons an opportunity to participate in the rule making through submission of written data, views, or arguments with or without opportunity for oral presentation. After consideration of the relevant matter presented, the agency shall incorporate in the rules adopted a concise general statement of their basis and purpose." Interpreting this provision of the Act in United States v. Allegheny-Ludlum Steel Corp., 406 U.S. 742, 92 S.Ct. 1941, 32 L.Ed.2d 453 (1972), and United States v. Florida East Coast R. Co., 410 U.S. 224, 93 S.Ct. 810, 35 L.Ed.2d 223 (1973), we held that generally speaking this section of the Act established the maximum procedural requirements which Congress was willing to have the courts impose upon agencies in conducting rulemaking procedures.1 Agencies are free to grant additional procedural rights in the exercise of their discretion, but reviewing courts are generally not free to impose them if the agencies have not chosen to grant them. This is not to say necessarily that there are no circumstances which would ever justify a court in overturning agency action because of a failure to employ procedures beyond those required by the statute. But such circumstances, if they exist, are extremely rare.
9
Even apart from the Administrative Procedure Act this Court has for more than four decades emphasized that the formulation of procedures was basically to be left within the discretion of the agencies to which Congress had confided the responsibility for substantive judgments. In FCC v. Schreiber, 381 U.S. 279, 290, 85 S.Ct. 1459, 1467, 14 L.Ed.2d 383 (1965), the Court explicated this principle, describing it as "an outgrowth of the congressional determination that administrative agencies and administrators will be familiar with the industries which they regulate and will be in a better position than federal courts or Congress itself to design procedural rules adapted to the peculiarities of the industry and the tasks of the agency involved." The Court there relied on its earlier case of FCC v. Pottsville Broadcasting Co., 309 U.S. 134, 138, 60 S.Ct. 437, 439, 84 L.Ed. 656 (1940), where it had stated that a provision dealing with the conduct of business by the Federal Communications Commission delegated to the Commission the power to resolve "subordinate questions of procedure . . . [such as] the scope of the inquiry, whether applications should be heard contemporaneously or successively, whether parties should be allowed to intervene in one another's proceedings, and similar questions."
10
It is in the light of this background of statutory and decisional law that we granted certiorari to review two judgments of the Court of Appeals for the District of Columbia Circuit because of our concern that they had seriously misread or misapplied this statutory and decisional law cautioning reviewing courts against engrafting their own notions of proper procedures upon agencies entrusted with substantive functions by Congress. 429 U.S. 1090, 97 S.Ct. 1098, 51 L.Ed.2d 535 (1977). We conclude that the Court of Appeals has done just that in these cases, and we therefore remand them to it for further proceedings. We also find it necessary to examine the Court of Appeals' decision with respect to agency action taken after full adjudicatory hearings. We again conclude that the court improperly intruded into the agency's decisionmaking process, makin it necessary for us to reverse and remand with respect to this part of the cases also.
11
* A.
12
Under the Atomic Energy Act of 1954, 68 Stat. 919, as amended, 42 U.S.C. § 2011 et seq., the Atomic Energy Commission2 was given broad regulatory authority over the development of nuclear energy. Under the terms of the Act, a utility seeking to construct and operate a nuclear power plant must obtain a separate permit or license at both the construction and the operation stage of the project. See 42 U.S.C. §§ 2133, 2232, 2235, 2239. In order to obtain the construction permit, the utility must file a preliminary safety analysis report, an environmental report, and certain information regarding the antitrust implications of the proposed project. See 10 CFR §§ 2.101, 50.30(f), 50.33a, 50.34(a) (1977). This application then undergoes exhaustive review by the Commission's staff and by the Advisory Committee on Reactor Safeguards (ACRS), a group of distinguished experts in the field of atomic energy. Both groups submit to the Commission their own evaluations, which then become part of the record of the utility's application.3 See 42 U.S.C. §§ 2039, 2232(b). The Commission staff also undertakes the review required by the National Environmental Policy Act of 1969 (NEPA), 83 Stat. 852, 42 U.S.C. § 4321 et seq., and prepares a draft environmental impact statement, which, after being circulated for comment, 10 CFR §§ 51.22-51.25 (1977), is revised and becomes a final environmental impact statement. § 51.26. Thereupon a three-member Atomic Safety and Licensing Board conducts a public adjudicatory hearing, 42 U.S.C. § 2241, and reaches a decision4 which can be appealed to the Atomic Safety and Licensing Appeal Board, and currently, in the Commission's discretion, to the Commission itself. 10 CFR §§ 2.714, 2.721, 2.786, 2.787 (1977). The final agency decision may be appealed to the courts of appeals. 42 U.S.C. § 2239; 28 U.S.C. § 2342. The same sort of process occurs when the utility applies for a license to operate the plant, 10 CFR § 50.34(b) (1977), except that a hearing need only be held in contested cases and may be limited to the matters in controversy. See 42 U.S.C. § 2239(a); 10 CFR § 2.105 (1977); 10 CFR pt. 2, App. A, V(f) (1977).5
13
These cases arise from two separate decisions of the Court of Appeals for the District of Columbia Circuit. In the first, the court remanded a decision of the Commission to grant a license to petitioner Vermont Yankee Nuclear Power Corp. to operate a nuclear power plant. Natural Resources Defense Council v. NRC, 178 U.S.App.D.C. 336, 547 F.2d 633 (1976). In the second, the court remanded a decision of that same agen y to grant a permit to petitioner Consumers Power Co. to construct two pressurized water nuclear reactors to generate electricity and steam. Aeschliman v. NRC, 178 U.S.App.D.C. 325, 547 F.2d 622.
B
14
In December 1967, after the mandatory adjudicatory hearing and necessary review, the Commission granted petitioner Vermont Yankee a permit to build a nuclear power plant in Vernon, Vt. See 4 A.E.C. 36 (1967). Thereafter, Vermont Yankee applied for an operating license. Respondent Natural Resources Defense Council (NRDC) objected to the granting of a license, however, and therefore a hearing on the application commenced on August 10, 1971. Excluded from consideration at the hearings, over NRDC's objection, was the issue of the environmental effects of operations to reprocess fuel or dispose of wastes resulting from the reprocessing operations.6 This ruling was affirmed by the Appeal Board in June 1972.
15
In November 1972, however, the Commission, making specific reference to the Appeal Board's decision with respect to the Vermont Yankee license, instituted rulemaking proceedings "that would specifically deal with the question of consideration of environmental effects associated with the uranium fuel cycle in the individual cost-benefit analyses for light water cooled nuclear power reactors." App. 352. The notice of proposed rulemaking offered two alternatives, both predicated on a report prepared by the Commission's staff entitled Environmental Survey of the Nuclear Fuel Cycle. The first would have required no quantitative evaluation of the environmental hazards of fuel reprocessing or disposal because the Environmental Survey had found them to be slight. The second would have specified numerical values for the environmental impact of this part of the fuel cycle, which values would then be incorporated into a table, along with the other relevant factors, to determine the overall cost-benefit balance for each operating license. See id., at 356-357.
16
Much of the controversy in this case revolves around the procedures used in the rulemaking hearing which commenced in February 1973. In a supplemental notice of hearing the Commission indicated that while discovery or cross-examination would not be utilized, the Environmental Survey would be available to the public before the hearing along with the extensive background documents cited therein. All participants would be given a reasonable opportunity to present their position and could be represented by counsel if they so desired. Written and, time permitting, oral statements would be received and incorporated into the record. All persons giving oral statements would be subject to questioning by the Commission. At the conclusion of the hearing, a transcript would be made available to the public and the record would remain open for 30 days to allow the filing of supplemental written statements. See generally id., at 361-363. More than 40 individuals and organizations representing a wide variety of interests submitted written comments. On January 17, 1973, the Licensing Board held a planning session to schedule the appearance of witnesses and to discuss methods for compiling a record. The hearing was held on February 1 and 2, with participation by a number of groups, including th Commission's staff, the United States Environmental Protection Agency, a manufacturer of reactor equipment, a trade association from the nuclear industry, a group of electric utility companies, and a group called Consolidated National Intervenors which represented 79 groups and individuals including respondent NRDC.
17
After the hearing, the Commission's staff filed a supplemental document for the purpose of clarifying and revising the Environmental Survey. Then the Licensing Board forwarded its report to the Commission without rendering any decision. The Licensing Board identified as the principal procedural question the propriety of declining to use full formal adjudicatory procedures. The major substantive issue was the technical adequacy of the Environmental Survey.
18
In April 1974, the Commission issued a rule which adopted the second of the two proposed alternatives described above. The Commission also approved the procedures used at the hearing,7 and indicated that the record, including the Environmental Survey, provided an "adequate data base for the regulation adopted." Id., at 392. Finally, the Commission ruled that to the extent the rule differed from the Appeal Board decisions in Vermont Yankee "those decisions have no further precedential significance," id., at 386, but that since "the environmental effects of the uranium fuel cycle have been shown to be relatively insignificant, . . . it is unnecessary to apply the amendment to applicant's environmental reports submitted prior to its effective date or to Final Environmental Statements for which Draft Environmental Statements have been circulated for comment prior to the effective date," id., at 395.
19
Respondents appealed from both the Commission's adoption of the rule and its decision to grant Vermont Yankee's license to the Court of Appeals for the District of Columbia Circuit.
C
20
In January 1969, petitioner Consumers Power Co. applied for a permit to construct two nuclear reactors in Midland, Mich. Consumers Power's application was examined by the Commission's staff and the ACRS. The ACRS issued reports which discussed specific problems and recommended solutions. It also made reference to "other problems" of a more generic nature and suggested that efforts should be made to resolve them with respect to these as well as all other projects.8 Two groups, one called Saginaw and another called Mapleton, intervened and opposed the application.9 Saginaw filed with the Board a number of environmental contentions, directed over 300 interrogatories to the ACRS, attempted to depose the chairman of the ACRS, and requested discovery of various ACRS documents. The Licensing Board denied the various discovery requests directed to the ACRS. Hearings were then held on numerous radiological health and safety issues.10 Thereafter, the Commission's staff issued a draft environmental impact statement. Saginaw submitted 119 environmental contentions which were both comments on the proposed draft statement and a statement of Saginaw's position in the upcoming hearing . The staff revised the statement and issued a final environmental statement in March 1972. Further hearings were then conducted during May and June 1972. Saginaw, however, choosing not to appear at or participate in these latter hearings, indicated that it had "no conventional findings of fact to set forth" and had not "chosen to search the record and respond to this proceeding by submitting citations of matters which we believe were proved or disproved." See App. 190 n. 9. But the Licensing Board, recognizing its obligations to "independently consider the final balance among conflicting environmental factors in the record," nevertheless treated as contested those issues "as to which intervenors introduced affirmative evidence or engaged in substantial cross examination." Id., at 205, 191.
21
At issue now are 17 of those 119 contentions which are claimed to raise questions of "energy conservation." The Licensing Board indicated that as far as appeared from the record, the demand for the plant was made up of normal industrial and residential use. Id., at 207. It went on to state that it was "beyond our province to inquire into whether the customary uses being made of electricity in our society are 'proper' or 'improper.' " Ibid. With respect to claims that Consumers Power stimulated demand by its advertising the Licensing Board indicated that "[n]o evidence was offered on this point and absent some evidence that Applicant is creating abnormal demand, the Board did not consider the question." Id., at 207-208. The Licensing Board also failed to consider the environmental effects of fuel reprocessing or disposal of radioactive wastes. The Appeal Board ultimately affirmed the Licensing Board's grant of a construction permit and the Commission declined to further review the matter.
22
At just about the same time, the Council on Environmental Quality revised its regulations governing the preparation of environmental impact statements. 38 Fed.Reg. 20550 (1973). The regulations mentioned for the first time the necessity of considering in impact statements energy conservation as one of the alternativ § to a proposed project. The new guidelines were to apply only to final impact statements filed after January 28, 1974. Id., at 20557. Thereafter, on November 6, 1973, more than a year after the record had been closed in the Consumers Power case and while that case was pending before the Court of Appeals, the Commission ruled in another case that while its statutory power to compel conservation was not clear, it did not follow that all evidence of energy conservation issues should therefore be barred at the threshold. In re Niagara Mohawk Power Corp., 6 A.E.C. 995 (1973). Saginaw then moved the Commission to clarify its ruling and reopen the Consumers Power proceedings.
23
In a lengthy opinion, the Commission declined to reopen the proceedings. The Commission first ruled it was required to consider only energy conservation alternatives which were " 'reasonably available,' " would in their aggregate effect curtail demand for electricity to a level at which the proposed facility would not be needed, and were susceptible of a reasonable degree of proof. App. 332. It then determined, after a thorough examination of the record, that not all of Saginaw's contentions met these threshold tests. Id., at 334-340. It further determined that the Board had been willing at all times to take evidence on the other contentions. Saginaw had simply failed to present any such evidence. The Commission further criticized Saginaw for its total disregard of even those minimal procedural formalities necessary to give the Board some idea of exactly what was at issue. The Commission emphasized that "[p]articularly in these circumstances, Saginaw's complaint that it was not granted a hearing on alleged energy conservation issues comes with ill grace."11 Id., at 342. And in response to Saginaw's contention that regardless of whether it properly raised the issues, the Licensing Board must consider all environmental issues, the Commission basically agreed, as did the Board itself, but further reasoned that the Board must have some workable procedural rules and these rules
24
"in this setting must take into account that energy conservation is a novel and evolving concept. NEPA 'does not require a "crystal ball" inquiry.' Natural Resources Defense Council v. Morton, [148 U.S.App.D.C. 5, 15, 458 F.2d 827, 837 (1972)]. This consideration has led us to hold that we will not apply Niagara retroactively. As we gain experience on a case-by-case basis and hopefully, feasible energy conservation techniques emerge, the applicant, staff, and licensing boards will have obligations to develop an adequate record on these issues in appropriate cases, whether or not they are raised by intervenors.
25
"However, at this emergent stage of energy conservation principles, intervenors also have their responsibilities. They must state clear and reasonably specific energy conservation contentions in a timely fashion. Beyond that, they have a burden of coming forward with some affirmative showing if they wish to have these novel contentions explored further."12 Id., at 344 (footnotes omitted).
26
Respondents then challenged the granting of the construction permit in the Court of Appeals for the District of Columbia Circuit.
D
27
With respect to the challenge of Vermont Yankee's license, the court first ruled that in the absence of effective rulemaking proceedings,13 the Commission must deal with the environmental impact of fuel reprocessing and disposal in individual licensing proceedings. 178 U.S.App.D.C., at 344, 547 F.2d, at 641. The court then examined the rulemaking proceedings and, despite the fact that it appeared that the agency employed all the procedures required by 5 U.S.C. § 553 (1976 ed.) and more, the court determined the proceedings to be inadequate and overturned the rule. Accordingly, the Commission's determination with respect to Vermont Yankee's license was also remanded for further proceedings.14 178 U.S.App.D.C., at 358, 547 F.2d, at 655.
28
With respect to the permit to Consumers Power, the court first held that the environmental impact statement for construction of the Midland reactors was fatally defective for failure to examine energy conservation as an alternative to a plant of this size. 178 U.S.App.D.C., at 331, 547 F.2d, at 628. The court also thought the report by ACRS was inadequate, although it did not agree that discovery from individual ACRS members was the proper way to obtain further explication of the report. Instead, the court held that the Commission should have sua sponte sent the report back to the ACRS for further elucidation of the "other problems" and their resolution. Id., at 335, 547 F.2d, at 632. Finally, the court ruled that the fuel cycle issues in this case were controlled by NRDC v. NRC, discussed above, and remanded for appropriate consideration of waste disposal and other unaddressed fuel cycle issues as described in that opinion. 178 U.S.App.D.C., at 335, 547 F.2d, at 632.
II
A.
29
Petitioner Vermont Yankee first argues that the Commission may grant a license to operate a nuclear reactor without any consideration of waste disposal and fuel reprocessing. We find, however, that this issue is no longer presented by the record in this case. The Commission does not contend that it is not required to consider the environmental impact of the spent fuel processes when licensing nuclear power plants. Indeed, the Commission has publicly stated subsequent to the Court of Appeals' decision in the instant case that consideration of the environmental impact of the back end of the fuel cycle in "the environmental impact statements for individual LWR's [light-water power reactors] would represent a full and candid assessment of costs and benefits consistent with the legal requirements and spirit of NEPA." 41 Fed.Reg. 45849 (1976). Even prior to the Court of Appeals decision the Commission implicitly agreed that it would consider the back end of the fuel cycle in all licensing proceedings: It indicated that it was not necessary to reopen prior licensing proceedings because "the environmental effects of the uranium fuel cycle have been shown to be relatively insignificant," and thus incorporation of those effects into the cost-benefit analysis would not change the results of such licensin proceedings. App. 395. Thus, at this stage of the proceedings the only question presented for review in this regard is whether the Commission may consider the environmental impact of the fuel processes when licensing nuclear reactors. In addition to the weight which normally attaches to the agency's determination of such a question, other reasons support the Commission's conclusion.
30
Vermont Yankee will produce annually well over 100 pounds of radioactive wastes, some of which will be highly toxic. The Commission itself, in a pamphlet published by its information office, clearly recognizes that these wastes "pose the most severe potential health hazard . . . ." U.S. Atomic Energy Commission, Radioactive Wastes 12 (1965). Many of these substances must be isolated for anywhere from 600 to hundreds of thousands of years. It is hard to argue that these wastes do not constitute "adverse environmental effects which cannot be avoided should the proposal be implemented," or that by operating nuclear power plants we are not making "irreversible and irretrievable commitments of resources." 42 U.S.C. §§ 4332(2)(C)(ii), (v). As the Court of Appeals recognized, the environmental impact of the radioactive wastes produced by a nuclear power plant is analytically indistinguishable from the environmental effects of "the stack gases produced by a coal-burning power plant." 178 U.S.App.D.C., at 341, 547 F.2d, at 638. For these reasons we hold that the Commission acted well within its statutory authority when it considered the back end of the fuel cycle in individual licensing proceedings.
B
31
We next turn to the invalidation of the fuel cycle rule. But before determining whether the Court of Appeals reached a permissible result, we must determine exactly what result it did reach, and in this case that is no mean feat. Vermont Yankee argues that the court invalidated the rule because of the inadequacy of the procedures employed in the proceedings. Brief for Petitioner in No. 76-419, pp. 30-38. Respondents, on the other hand, labeling petitioner's view of the decision a "straw man," argue to this Court that the court merely held that the record was inadequate to enable the reviewing court to determine whether the agency had fulfilled its statutory obligation. Brief for Respondents in No. 76-419, pp. 28-30, 40. But we unfortunately have not found the parties' characterization of the opinion to be entirely reliable; it appears here, as in Orloff v. Willoughby, 345 U.S. 83, 87, 73 S.Ct. 534, 537, 97 L.Ed. 842 (1953), that"in this Court the parties changed positions as nimbly as if dancing a quadrille."15
32
After a thorough examination of the opinion itself, we conclude that while the matter is not entirely free from doubt, the majority of the Court of Appeals struck down the rule because of the perceived inadequacies of the procedures employed in the rulemaking proceedings. The court first determined the intervenors' primary argument to be "that the decision to preclude 'discovery or cross-examination' denied them a meaningful opportunity to participate in the proceedings as guaranteed by due process." 178 U.S.App.D.C., at 346, 547 F.2d, at 643. The court then went on to frame the issue for decision thus:
33
"Thus, we are called upon to decide whether the procedures provided by the agency were sufficient to ventilate the issues." Ibid., at 346, 547 F.2d, at 643.
34
The court conceded that absent extraordinary circumstances it is improper for a reviewing court to prescribe the procedural format an agency must follow, but it likewise clearly thought it entirely appropriate to "scrutinize the record as a whole to insure that genuine opportunities to participate in a meaningful way were provided . . . ." Id., at 347, 547 F.2d, at 644. The court also refrained from actually ordering the agency to follow any specific procedures, id., at 356-357, 547 F.2d, at 653-654, but there is little doubt in our minds that the ineluctable mandate of the court's decision is that the procedures afforded during the hearings were inadequate. This conclusion is particularly buttressed by the fact that after the court examined the record, particularly the testimony of Dr. Pittman, and declared it insufficient, the court proceeded to discuss at some length the necessity for further procedural devices or a more "sensitive" application of those devices employed during the proceedings. Ibid. The exploration of the record and the statement regarding its insufficiency might initially lead one to conclude that the court was only examining the ufficiency of the evidence, but the remaining portions of the opinion dispel any doubt that this was certainly not the sole or even the principal basis of the decision. Accordingly, we feel compelled to address the opinion on its own terms, and we conclude that it was wrong.
35
In prior opinions we have intimated that even in a rulemaking proceeding when an agency is making a " 'quasi-judicial' " determination by which a very small number of persons are " 'exceptionally affected, in each case upon individual grounds,' " in some circumstances additional procedures may be required in order to afford the aggrieved individuals due process.16 United States v. Florida East Coast R. Co., 410 U.S., at 242-245, 93 S.Ct., at 819-821, quoting from Bi-Metallic Investment Co. v. State Board of Equalization, 239 U.S. 441, 446, 36 S.Ct. 141, 142, 60 L.Ed. 372 (1915). It might also be true, although we do not think the issue is presented in this case and accordingly do not decide it, that a totally unjustified departure from well-settled agency procedures of long standing might require judicial correction.17 But this much is absolutely clear. Absent constitutional constraints or extremely compelling circumstances the "administrative agencies 'should be free to fashion their own rules of procedure and to pursue methods of inquiry capable of permitting them to discharge their multitudinous duties.' " FCC v. Schreiber, 381 U.S., at 290, 85 S.Ct., at 1467, quoting from FCC v. Pottsville Broadcasting Co., 309 U.S., at 143, 60 S.Ct., at 441. Indeed, our cases could hardly be more explicit in this regard. The Court has, as we noted in FCC v. Schreiber, supra, at 290, and n. 17, 85 S.Ct., at 1467, upheld this principle in a variety of applications,18 including that case where the District Court, instead of inquiring into the validity of the Federal Communications Commission's exercise of its rulemaking authority, devised procedures to be followed by the agency on the basis of its conception of how the public and private interest involved could best be served. Examining § 4(j) of the Communications Act of 1934, the Court unanimously held that the Court of Appeals erred in upholding that action. And the basic reason for this decision was the Court of Appeals' serious departure from the very basic tenet of administrative law that agencies should be free to fashion their own rules of procedure.
36
We have continually repeated this theme through the years, most recently in FPC v. Transcontinental Gas Pipe Line Corp., 423 U.S. 326, 96 S.Ct. 579, 46 L.Ed.2d 533 (1976), decided just two Terms ago. In that case, in determining the proper scope of judicial review of agency action under the Natural Gas Act, we held that while a court may have occasion to remand an agency decision because of the inadequacy of the record, the agency should normally be allowed to "exercise its administrative discretion in deciding how, in light of internal organization considerations, it may best proceed to develop the needed evidence and how its prior decision should be modified in light of such evidence as develops." Id., at 333, 96 S.Ct., at 583. We went on to emphasize:
37
"At least in the absence of substantial justification for doing otherwise, a reviewing court may not, after determining that additional evidence is requisite for adequate review, proceed by dictating to the agency the methods, procedures, and time dimension of the needed inquiry and ordering the results to be reported to the court without opportunity for further consideration on the basis of the new evidence by the agency. Such a procedure clearly runs the risk of 'propel[ling] the court into the domain which Congress has set aside exclusively for the administrative agency.' SEC v. Chenery Corp., 332 U.S. 194, 196, 67 S.Ct. 1575, 91 L.Ed. 1995 (1947)." Ibid.
38
Respondent NRDC argues that § 4 of the Administrative Procedure Act, 5 U.S.C. § 553 (1976 ed.), merely establishes lower procedural bounds and that a court may routinely require more than the minimum when an agency's proposed rule addresses complex or technical factual issues or "Issues of Great Public Import." Brief for Respondents in No. 76-419, p. 49. We have, however, previously shown that our decisions reject this view. Supra, at 542 to this page. We also think the legislative history, even the part which it cites, does not bear out its contention. The Senate Report explains what eventually became § 4 thus:
39
"This subsection states . . . the minimum requirements of public rule making procedure short of statutory hearing. Under it agencies might in addition confer with industry advisory committees, consult organizations, hold informal 'hearings,' and the like. Considerations of practicality, necessity, and public interest . . . will naturally govern the agency's determination of the extent to which public proceedings should go. Matters of great import, or those where the public submission of facts will be either useful to the agency or a protection to the public, should naturally be accorded more elaborate public procedures." S.Rep. No. 752, 79th Cong., 1st Sess., 14-15 (1945).
The House Report is in complete accord:
40
" '[U]niformity has been found possible and desirable for all classes of both equity and law actions in the courts . . . .
41
It would seem to require no argument to demonstrate that the administrative agencies, exercising but a fraction of the judicial power may likewise operate under uniform rules of practice and procedure and that they may be required to remain within the terms of the law as to the exercise of both quasi-legislative and quasi-judicial power.'
42
* * * * *
43
"The bill is an outline of minimum essential rights and procedures. . . . It affords private parties a means of knowing what their rights are and how they may protect them . . . .
44
* * * * *
45
". . . [The bill contains] the essentials of the different forms of administrative proceedings . . . ." H.R.Rep. No. 1980, 79th Cong., 2d Sess., 9, 16-17 (1946).
46
And the Attorney General's Manual on the Administrative Procedure Act 31, 35 (1947), a contemporaneous interpretation previously given some deference by this Court because of the role played by the Department of Justice in drafting the legislation,19 further confirms that view. In short, all of this leaves little doubt that Congress intended that the discretion of the agencies and not that of the courts be exercised in determining when extra procedural devices should be employed.
47
There are compelling reasons for construing § 4 in this manner. In the first place, if courts continually review agency proceedings to determine whether the agency employed procedures which were, in the court's opinion, perfectly tailored to reach what the court perceives to be the "best" or "correct" result, judicial review would be totally unpredictable. And the agencies, operating under this vague injunction to employ the "best" procedures and facing the threat of reversal if they did not, would undoubtedly adopt full adjudicatory procedures in every instance. Not only would this totally disrupt the statutory scheme, through which Congress enacted "a formula upon which opposing social and political forces have come to rest," Wong Yang Sung v. McGrath, 339 U.S., at 40, 70 S.Ct., at 450, but all the inherent advantages of informal rulemaking would be totally lost.20
48
Secondly, it is obvious that the court in these cases reviewed the agency's choice of procedures on the basis of the record actually produced at the hearing, 178 U.S.App.D.C., at 347, 547 F.2d, at 644, and not on the basis of the information available to the agency when it made the decision to structure the proceedings in a certain way. This sort of Monday morning quarterbacking not only encourages but almost compels the agency to conduct all rulemaking proceedings with the full panoply of procedural devices normally associated only with adjudicatory hearings.
49
Finally, and perhaps most importantly, this sort of review fundamentally misconceives the nature of the standard for judicial review of an agency rule. The court below uncritically assumed that additional procedures will automatically result in a more adequate record because it will give interested parties more of an opportunity to participate in and contribute to the proceedings. But informal rulemaking need not be based solely on the transcript of a hearing held before an agency. Indeed, the agency need not even hold a formal hearing. See 5 U.S.C. § 553(c) (1976 ed.). Thus, the adequacy of the "record" in this type of proceeding is not correlated directly to the type of procedural devices employed, but rather turns on whether the agency has followed the statutory mandate of the Administrative Procedure Act or other relevant statutes. If the agency is compelled to support the rule which it ultimately adopts with the type of record produced only after a full adjudicatory hearing, it simply will have no choice but to conduct a full adjudicatory hearing prior to promulgating every rule. In sum, this sort of unwarranted judicial examination of perceived procedural shortcomings of a rulemaking proceeding can do nothing but seriously interfere with that process prescribed by Congress.
50
Respondent NRDC also argues that the fact that the Commission's inquiry was undertaken in the context of NEPA somehow permits a court to require procedures beyond those specified in § 4 of the APA when investigating factual issues through rulemaking. The Court of Appeals was apparently also of this view, indicating that agencies may be required to "develop new procedures to accomplish the innovative task of implementing NEPA through rulemaking." 178 U.S.App.D.C., at 356, 547 F.2d, at 653. But we search in vain for something in NEPA which would mandate such a result. We have before observed that "NEPA does not repeal by implication any other statute." Aberdeen & Rockfish R. Co. v. SCRAP, 422 U.S. 289, 319, 95 S.Ct. 2336, 2355, 45 L.Ed.2d 191 (1975). See also United States v. SCRAP, 412 U.S. 669, 694, 93 S.Ct. 2405, 2419, 37 L.Ed.2d 254 (1973). In fact, just two Terms ago, we emphasized that the only procedural requirements imposed by NEPA are those stated in the plain language of the Act. Kleppe v. Sierra Club, 427 U.S. 390, 405-406, 96 S.Ct. 2718, 2728-2729, 49 L.Ed.2d 576 (1976). Thus, it is clear NEPA cannot serve as the basis for a substantial revision of the carefully constructed procedural specifications of the APA.
51
In short, nothing in the APA, NEPA, the circumstances of this case, the nature of the issues being considered, past agency practice, or the statutory mandate under which the Commission operates permitted the court to review and overturn the rulemaking proceeding on the basis of the procedural devices employed (or not employed) by the Commission so long as the Commission employed at least the statutory minima, a matter about which there is no doubt in this case. There remains, of course, the question of whether the challenged rule finds sufficient justification in the administrative proceedings that it should be upheld by the reviewing court. Judge Tamm, concurring in the result reached by the majority of the Court of Appeals, thought that it did not. There are also intimations in the majority opinion which suggest that the judges who joined it likewise may have thought the administrative proceedings an insufficient basis upon which to predicate the rule in question. We accordingly remand so that the Court of Appeals may review the rule as the Administrative Procedure Act provides. We have made it abundantly clear before that when there is a contemporaneous explanation of the agency decision, the validity of that action must "stand or fall on the propriety of that finding, judged, of course, by the appropriate standard of review. If that finding is not sustainable on the administrative record made, then the Comptroller's decision must be vacated and the matter remanded to h m for further consideration." Camp v. Pitts, 411 U.S. 138, 143, 93 S.Ct. 1241, 1244, 36 L.Ed.2d 106 (1973). See also SEC v. Chenery Corp., 318 U.S. 80, 63 S.Ct. 454, 87 L.Ed. 626 (1943). The court should engage in this kind of review and not stray beyond the judicial province to explore the procedural format or to impose upon the agency its own notion of which procedures are "best" or most likely to further some vague, undefined public good.21
III
A.
52
We now turn to the Court of Appeals' holding "that rejection of energy conservation on the basis of the 'threshold test' was capricious and arbitrary," 178 U.S.App.D.C., at 332, 547 F.2d, at 629, and again conclude the court was wrong.
53
The Court of Appeals ruled that the Commission's "threshold test" for the presentation of energy conservation contentions was inconsistent with NEPA's basic mandate to the Commission. Id., at 330, 547 F.2d, at 627. The Commission, the court reasoned, is something more than an umpire who sits back and resolves adversary contentions at the hearing stage. Ibid., 547 F.2d, at 627. And when an intervenor's comments "bring 'sufficient attention to the issue to stimulate the Commission's consideration of it,' " the Commission must "undertake its own preliminary investigation of the proffered alternative sufficient to reach a rational judgment whether it is worthy of detailed consideration in the EIS. Moreover, the Commission must explain the basis for each conclusion that further consideration of a suggested alternative is unwarranted." Id., at 331, 547 F.2d, at 628, quoting from Indiana & Michigan Electric Co. v. FPC, 163 U.S.App.D.C. 334, 337, 502 F.2d 336, 339 (1974), cert. denied, 420 U.S. 946, 95 S.Ct. 1326, 43 L.Ed.2d 424 (1975).
54
While the court's rationale is not entirely unappealing as an abstract proposition, as applied to this case we think it basically misconceives not only the scope of the agency's statutory responsibility, but also the nature of the administrative process, the thrust of the agency's decision, and the type of issues the intervenors were trying to raise.
55
There is little doubt that under the Atomic Energy Act of 1954, state public utility commissions or similar bodies are empowered to make the initial decision regarding the need for power. 42 U.S.C. § 2021(k). The Commission's prime area of concern in the licensing context, on the other hand, is national security, public health, and safety. §§ 2132, 2133, 2201. And it is clear that the need, as that term is conventionally used, for the power was thoroughly explored in the hearings. Even the Federal Power Commission, which regulates sales in interstate commerce, 16 U.S.C. § 824 et seq. (1976 ed.), agreed with Consumers Power's analysis of projected need. App. 207.
56
NEPA, of course, has altered slightly the statutory balance, requiring "a detailed statement by the responsible official on . . . alternatives to the proposed action." 42 U.S.C. § 4332(C). But, as should be obvious even upon a moment's reflection, the term "alternatives" is not self-defining. To make an impact statement something more than an exercise in frivolous boilerplate the concept of alternatives must be bounded by some notion of feasibility. As the Court of Appeals for the District of Columbia Circuit has itself recognized:
57
"There is reason for concluding that NEPA was not meant to require detailed discussion of the environmental effects of 'alternatives' put forward in comments when these effects cannot be readily ascertained and the alternatives are deeme only remote and speculative possibilities, in view of basic changes required in statutes and policies of other agencies making them available, if at all, only after protracted debate and litigation not meaningfully compatible with the time-frame of the needs to which the underlying proposal is addressed." Natural Resources Defense Council v. Morton, 148 U.S.App.D.C. 5, 15-16, 458 F.2d 827, 837-838 (1972).
58
See also Life of the Land v. Brinegar, 485 F.2d 460 (CA9 1973), cert. denied, 416 U.S. 961, 94 S.Ct. 1979, 40 L.Ed.2d 312 (1974). Common sense also teaches us that the "detailed statement of alternatives" cannot be found wanting simply because the agency failed to include every alternative device and thought conceivable by the mind of man. Time and resources are simply too limited to hold that an impact statement fails because the agency failed to ferret out every possible alternative, regardless of how uncommon or unknown that alternative may have been at the time the project was approved.
59
With these principles in mind we now turn to the notion of "energy conservation," an alternative the omission of which was thought by the Court of Appeals to have been "forcefully pointed out by Saginaw in its comments on the draft EIS." 178 U.S.App.D.C., at 328, 547 F.2d, at 625. Again, as the Commission pointed out, "the phrase 'energy conservation' has a deceptively simple ring in this context. Taken literally, the phrase suggests a virtually limitless range of possible actions and developments that might, in one way or another, ultimately reduce projected demands for electricity from a particular proposed plant." App. 331. Moreover, as a practical matter, it is hard to dispute the observation that it is largely the events of recent years that have emphasized not only the need but also a large variety of alternatives for energy conservation. Prior to the drastic oil shortages incurred by the United States in 1973, there was little serious thought in most Government circles of energy conservation alternatives. Indeed, the Council on Environmental Quality did not promulgate regulations which even remotely suggested the need to consider energy conservation in impact statements until August 1, 1973. See 40 CFR § 1500.8(a)(4) (1977); 38 Fed.Reg. 20554 (1973). And even then the guidelines were not made applicable to draft and final statements filed with the Council before January 28, 1974. Id., at 20557, 21265. The Federal Power Commission likewise did not require consideration of energy conservation in applications to build hydroelectric facilities until June 19, 1973. 18 CFR pt. 2, App. A., § 8.2 (1977); 38 Fed.Reg. 15946, 15949 (1973). And these regulations were not made retroactive either. Id., at 15946. All this occurred over a year and a half after the draft environmental statement for Midland had been prepared, and over a year after the final environmental statement had been prepared and the hearings completed.
60
We think these facts amply demonstrate that the concept of "alternatives" is an evolving one, requiring the agency to explore more or fewer alternatives as they become better known and understood. This was well understood by the Commission, which, unlike the Court of Appeals, recognized that the Licensing Board's decision had to be judged by the information then available to it. And judged in that light we have little doubt the Board's actions were well within the proper bounds of its statutory authority. Not only did the record before the agency give every indication that the project was actually needed, but also there was nothing before the Board to indicate to the contrary.
61
We also think the court's criticism of the Commission's "threshold test" displays a lack of understanding of the historical setting within which the agency action took place and of the nature of the test itself. In the first place, while it is true that NEPA places upon an agency the obligation to consider every significant aspect of the environmental impact of a proposed action, it is still incumbent upon intervenors who wish to participate to structure their participation so that it is meaningful, so that it alerts the agency to the intervenors' position and contentions. This is especially true when the intervenors are requesting the agency to embark upon an exploration of unchartered territory, as was the question of energy conservation in the late 1960's and early 1970's.
62
"[C]omments must be significant enough to step over a threshold requirement of materiality before any lack of agency response or consideration becomes of concern. The comment cannot merely state that a particular mistake was made . . . ; it must show why the mistake was of possible significance in the results . . . ." Portland Cement Assn. v. Ruckelshaus, 158 U.S.App.D.C. 308, 327, 486 F.2d 375, 394 (1973), cert. denied sub nom. Portland Cement Corp. v. Administrator, EPA, 417 U.S. 921, 94 S.Ct. 2628, 41 L.Ed.2d 226 (1974).
63
Indeed, administrative proceedings should not be a game or a forum to engage in unjustified obstructionism by making cryptic and obscure reference to matters that "ought to be" considered and then, after failing to do more to bring the matter to the agency's attention, seeking to have that agency determination vacated on the ground that the agency failed to consider matters "forcefully presented." In fact, here the agency continually invited further clarification of Saginaw's contentions. Even without such clarification it indicated a willingness to receive evidence on the matters. But not only did Saginaw decline to further focus its contentions, it virtually declined to participate, indicating that it had "no conventional findings of fact to set forth" and that it had not "chosen to search the record and respond to this proceeding by submitting citations of matter which we believe were proved or disproved."
64
We also think the court seriously mischaracterized the Commission's "threshold test" as placing "heavy substantive burdens . . . on intervenors . . . ." 178 U.S.App.D.C., at 330, and n. 11, 547 F.2d, at 627, and n. 11. On the contrary, the Commission explicitly stated:
65
"We do not equate this burden with the civil litigation concept of a prima facie case, an unduly heavy burden in this setting. But the showing should be sufficient to require reasonable minds to inquire further." App. 344 n. 27.
66
We think this sort of agency procedure well within the agency's discretion.
67
In sum, to characterize the actions of the Commission as "arbitrary or capricious" in light of the facts then available to it as described at length above, is to deprive those words of any meaning. As we have said in the past:
68
"Administrative consideration of evidence . . . always creates a gap between the time the record is closed and the time the administrative decision is promulgated [and, we might add, the time the decision is judicially reviewed]. . . . If upon the coming down of the order litigants might demand rehearings as a matter of law because some new circumstance has arisen, some new trend has been observed, or some new fact discovered, there would be little hope that the administrative process could ever be consummated in an order that would not be subject to reopening." ICC v. Jersey City, 322 U.S. 503, 514, 64 S.Ct. 1129, 1134, 88 L.Ed. 1420 (1944).
69
See also Northern Lines Merger Cases, 396 U.S. 491, 521, 90 S.Ct. 708, 722, 24 L.Ed.2d 700 (1970).
70
We have also made it clear that the role of a court in reviewing the sufficiency of an agency's consideration of environmental factors is a limited one, limited both by the time at which the decision was made and by the statute mandating review.
71
"Neither the statute nor its legislative history contemplates that a court should substitute its judgment for that of the agency as to the environmental consequences of its ac ions. Kleppe v. Sierra Club, 427 U.S., at 410 n. 21, 96 S.Ct., at 2731 n. 21.
72
We think the Court of Appeals has forgotten that injunction here and accordingly its judgment in this respect must also be reversed.22
B
73
Finally, we turn to the Court of Appeals' holding that the Licensing Board should have returned the ACRS report to ACRS for further elaboration, understandable to a layman, of the reference to other problems.
74
The Court of Appeals reasoned that since one function of the report was "that all concerned may be apprised of the safety or possible hazard of the facilities," the report must be in terms understandable to a layman and replete with cross-references to previous reports in which the "other problems" are detailed. Not only that, but if the report does not so elaborate, and the Licensing Board fails to sua sponte return the report to ACRS for further development, the entire agency action, made after exhaustive studies, reviews, and 14 days of hearings, must be nullified.
75
Again the Court of Appeals has unjustifiably intruded into the administrative process. It is true that Congress thought publication of the ACRS report served an important function. But the legislative history shows that the function of publication was subsidiary to its main function, that of providing technical advice from a body of experts uniquely qualified to provide assistance. See 42 U.S.C. § 2039; S.Rep. No. 296, 85th Cong., 1st Sess., 24 (1957); U.S.Code Cong. & Admin.News, p. 1803; Joint Committee on Atomic Energy, A Study of AEC Procedures and Organization in the Licensing of Reactor Facilities, 85th Cong., 1st Sess., 32-34 (Comm. Print 1957). The basic information to be conveyed to the public is not necessarily a full technical exposition of every facet of nuclear energy, but rather the ACRS's position, and reasons therefore, with respect to the safety of a proposed nuclear reactor. Accordingly, the ACRS cannot be faulted for not dealing with every facet of nuclear energy in every report it issues.
76
Of equal significance is the fact that the ACRS was not obfuscating its findings. The reports to which it referred were matters of public record, on file in the Commission's public-documents room. Indeed, all ACRS reports are on file there. Furthermore, we are informed that shortly after the Licensing Board's initial decision, ACRS prepared a list which identified its "generic safety concerns." In light of all this it is simply inconceivable that a reviewing court should find it necessary or permissible to order the Board to sua sponte return the report to ACRS. Our view is confirmed by the fact that the putative reason for the remand was that the public did not understand the report, and yet not one member of the supposedly uncomprehending public even asked that the report be remanded. This surely is, as petitioner Consumers Power claims, "judicial intervention run riot." Brief for Petitioner in No. 76-528, p. 37.
77
We als think it worth noting that we find absolutely nothing in the relevant statutes to justify what the court did here. The Commission very well might be able to remand a report for further clarification, but there is nothing to support a court's ordering the Commission to take that step or to support a court's requiring the ACRS to give a short explanation, understandable to a layman, of each generic safety concern.
78
All this leads us to make one further observation of some relevance to this case. To say that the Court of Appeals' final reason for remanding is insubstantial at best is a gross understatement. Consumers Power first applied in 1969 for a construction permit—not even an operating license, just a construction permit. The proposed plant underwent an incredibly extensive review. The reports filed and reviewed literally fill books. The proceedings took years, and the actual hearings themselves over two weeks. To then nullify that effort seven years later because one report refers to other problems, which problems admittedly have been discussed at length in other reports available to the public, borders on the Kafkaesque. Nuclear energy may some day be a cheap, safe source of power or it may not. But Congress has made a choice to at least try nuclear energy, establishing a reasonable review process in which courts are to play only a limited role. The fundamental policy questions appropriately resolved in Congress and in the state legislatures are not subject to reexamination in the federal courts under the guise of judicial review of agency action. Time may prove wrong the decision to develop nuclear energy, but it is Congress or the States within their appropriate agencies which must eventually make that judgment. In the meantime courts should perform their appointed function. NEPA does set forth significant substantive goals for the Nation, but its mandate to the agencies is essentially procedural. See 42 U.S.C. § 4332. See also Aberdeen & Rockfish R. Co. v. SCRAP, 422 U.S., at 319, 95 S.Ct., at 2355. It is to insure a fully informed and well-considered decision, not necessarily a decision the judges of the Court of Appeals or of this Court would have reached had they been members of the decisionmaking unit of the agency. Administrative decisions should be set aside in this context, as in every other, only for substantial procedural or substantive reasons as mandated by statute, Consolo v. FMC, 383 U.S. 607, 620, 86 S.Ct. 1018, 1026, 16 L.Ed.2d 131 (1966), not simply because the court is unhappy with the result reached. And a single alleged oversight on a peripheral issue, urged by parties who never fully cooperated or indeed raised the issue below, must not be made the basis for overturning a decision properly made after an otherwise exhaustive proceeding.
79
Reversed and remanded.
80
Mr. Justice BLACKMUN and Mr. Justice POWELL took no part in the consideration or decision of these cases.
1
While there was division in this Court in United States v. Florida East Coast R. Co., with respect to the constitutionality of such an interpretation in a case involving ratemaking, which Mr. Justice Douglas and Mr. Justice Stewart felt was "adjudicatory" within the terms of the Act, the cases in the Court of Appeals for the District of Columbia Circuit which we review here involve rulemaking procedures in their most pristine sense.
2
The licensing and regulatory functions of the Atomic Energy Commission (AEC) were transferred to the Nuclear Regulatory Commission (NRC) by the Energy Reorganization Act of 1974, 42 U.S.C. § 5801 et seq. (1970 ed., Supp. V). Hereinafter both the AEC and NRC will be referred to as the Commission.
3
ACRS is required to review each construction permit application for the purpose of informing the Commission of the "hazards of proposed or existing reactor facilities and the adequacy of proposed reactor safety standards." 42 U.S.C. § 2039.
4
The Licensing Board issues a permit if it concludes that there is reasonable assurance that the proposed plant can be constructed and operated without undue risk, 42 U.S.C. § 2241; 10 CFR § 50.35(a) (1977), and that the environmental cost-benefit balance favors the issuance of a permit.
5
When a license application is contested, the Licensing Board must find reasonable assurance that the plant can be operated without undue risk and will not be inimical to the common defense and security or to the health and safety of the public. See 42 U.S.C. § 2232(a); 10 CFR § 50.57(a) (1977). The Licensing Board's decision is subject to review similar to that afforded the Board's decision with respect to a construction permit.
6
The nuclear fission which takes place in light-water nuclear reactors apparently converts its principal fuel, uranium, into plutonium, which is itself highly radioactive but can be used as reactor fuel if separated from the remaining uranium and radioactive waste products. Fuel reprocessing refers to the process necessary to recapture usable plutonium. Waste disposal, at the present stage of technological development, refers to the storage of the very long lived and highly radioactive waste products until they detoxify sufficiently that they no longer present an environmental hazard. There are presently no physical or chemical steps which render this waste less toxic, other than simply the passage of time.
7
The Commission stated:
"In our view, the procedures adopted provide a more than adequate basis for formulation of the rule we adopted. All parties were fully heard. Nothing offered was excluded. The record does not indicate that any evidentiary material would have been received under different procedures. Nor did the proponent of the strict 'adjudicatory' approach make an offer of proof—or even remotely suggest—what substantive matters it would develop under different procedures. In addition, we note that 11 documents including the Survey were available to the parties several weeks before the hearing, and the Regulatory staff, though not requested to do so, made available various drafts and handwritten notes. Under all of the circumstances, we conclude that adjudicatory type procedures were not warranted here." App. 389-390 (footnote omitted).
8
The ACRS report as quoted, 178 U.S.App.D.C., at 333, 547 F.2d, at 630, stated:
"Other problems related to large water reactors have been identified by the Regulatory Staff and the ACRS and cited in previous ACRS reports. The Committee believes that resolution of these items should apply equally to the Midland Plant Units 1 & 2.
"The Committee believes that the above items can be resolved during construction and that, if due consideration is given to these items, the nuclear units proposed for the Midland Plant can be constructed with reasonable assurance that they can be operated without undue risk to the health and safety of the public."
9
Saginaw included the Saginaw Valley Nuclear Study Group, the Citizens Committee for Environmental Protection of Michigan, the United Automobile Workers International, and three other environmental groups. Mapleton included Nelson Aeschliman and five other residents of a community near the proposed plantsite. Mapleton did not raise any contentions relating to energy conservation.
10
Pursuant to the regulations then in effect, the Licensing Board refused to consider most of the environmental issues in this first set of hearings. On the last day of those hearings, however, the Court of Appeals for the District of Columbia Circuit decided Calvert Cliffs' Coordinating Comm., Inc. v. AEC, 146 U.S.App.D.C. 33, 449 F.2d 1109 (1971), which invalidated the Commission's NEPA regulations. One effect of that decision was to require that environmental matters be considered in pending proceedings, including this one. Accordingly, the Commission revised its regulations and then undertook an extensive environmental review of the proposed nuclear plants, requiring Consumers Power to file a lengthy environmental report. Thereafter the Commission's staff prepared the draft environmental impact statement discussed in text.
11
The Licensing Board had highlighted this same problem in its initial decision, noting "that the failure to propose proper findings and conclusions has greatly complicated the task of the Board and has made it virtually impossible in some instances to know whether particular issues are in fact contested." App. 190 n. 10. The Appeal Board was even less charitable, noting that that "[p]articipation in this manner, in our opinion, subverts the entire adjudicatory process." Id., at 257.
12
In what was essentially dictum, the Commission also ruled, after considering the various relevant factors—such as the extent to which the new rule represents a departure from prior practice, the degree of reliance on past practice and consequent burdens imposed by retroactive application of the rule—that the rule enunciated in Niagara should not e applied retroactively to cases which had progressed to final order and issuance of construction permits before Niagara was decided. App. 337.
13
In the Court of Appeals no one questioned the Commission's authority to deal with fuel cycle issues by informal rulemaking as opposed to adjudication. 178 U.S.App.D.C., at 345-346, 547 F.2d, at 642-643. Neither does anyone seriously question before this Court the Commission's authority in this respect.
14
After the decision of the Court of Appeals the Commission promulgated a new interim rule pending issuance of a final rule. 42 Fed.Reg. 13803 (1977). See Vermont Yankee Nuclear Power Corp., 5 N.R.C. 717
(1977). The Commission then, at the request of the New England Coalition on Nuclear Pollution, applied the interim rule to Vermont Yankee and determined that the cost-benefit analysis was still in the plant's favor. Vermont Yankee Nuclear Power Corp., 6 N.R.C. 25 (1977). That decision is presently on appeal to the Court of Appeals for the First Circuit. The Commission has also indicated in its brief that it intends to complete the proceedings currently in progress looking toward the adoption of a final rule regardless of the outcome of this case. Brief for Federal Respondents 37 n. 36. Following oral argument, respondent NRDC, relying on the above facts, filed a suggestion of mootness and a motion to dismiss the writ of certiorari as improvidently granted. We hold that the case is not moot, and deny the motion to dismiss the writ of certiorari as improvidently granted.
Upon remand, the majority of the panel of the Court of Appeals is entirely free to agree or disagree with Judge Tamm's conclusion that the rule pertaining to the back end of the fuel cycle under which petitioner Vermont Yankee's license was considered is arbitrary and capricious within the meaning of § 10(e) of the Administrative Procedure Act, 5 U.S.C. § 706 (1976 ed.), even though it may not hold, as it did in its previous opinion, that the rule is invalid because of the inadequacy of the agency procedures. Should it hold the rule invalid, it appears in all probability that the Commission will proceed to promulgate a rule resulting from rulemaking proceedings currently in progress. Brief for Federal Respondents 37 n. 36. In all likelihood the Commission would then be required, under the compulsion of the court's order, to examine Vermont Yankee's license under that new rule.
If, on the other hand, a majority of the Court of Appeals should decide that it was unwilling to hold the rule in question arbitrary and capricious merely on the basis of § 10(e) of the Administrative Procedure Act, Vermont Yankee would not necessarily be required to have its license reevaluated. So far as petitioner Vermont Yankee is concerned, there is certainly a case or controversy in this Court with respect to whether it must, by virtue of the Court of Appeals' decision, submit its license to the Commission for reevaluation and possible revocation under a new rule. It is true that we do not finally determine here the validity of the rule upon which the validity of Vermont Yankee's license in turn depends. Neither should
anything we say today be taken as a limitation on the Court of Appeals' discretion to take due account, if appropriate, of any additions made to the record by the Commission or to consolidate this appeal with the appeal from the interim rulemaking proceeding which is already pending. But the fact that the question of the validity of the first rule remains open upon remand makes the controversy no less "live."
As we read the opinion of the Court of Appeals, its view that reviewing courts may in the absence of special circumstances justifying such a course of action impose additional procedural requirements on agency action raises questions of such significance in this area of the law as to warrant our granting certiorari and deciding the case. Since the vast majority of challenges to administrative agency action are brought to the Court of Appeals for the District of Columbia Circuit, the decision of that court in this case will serve as precedent for many more proceedings for judicial review of agency actions than would the decision of another Court of Appeals. Finally, this decision will continue to play a major role in the instant litigation regardless of the Commission's decision to press ahead with further rulemaking proceedings. As we note in n. 15, infra, not only is the NRDC relying on the decision of the Court of Appeals as a device to force the agency to provide more procedures, but it is also challenging the interim rules promulgated by the agency in the Court of Appeals, alleging again the inadequacy of the procedures and citing the opinion of the Court of Appeals as binding precedent to that effect.
15
Vermont Yankee's interpretation has been consistent throughout the litigation. That cannot be said of the other parties, however. The Government, Janus-like, initially took both positions. While the petition for certiorari was pending, a brief was filed on behalf of the United States and the Commission, with the former indicating that it believed the court had unanimously held the record to be inadequate, while the latter took Vermont Yankee's view of the matter. See Brief for Federal Respondents 5-9 (filed Jan. 10, 1977). When announcing its intention to undertake licensing of reactors pending the promulgation of an "interim" fuel cycle rule, however, the Commission said:
"[T]he court found that the rule was inadequately supported by the record insofar as it treated two particular aspects of the fuel cycle—the impacts from reprocessing of spent fuel and the impacts from radioactive waste management." 41 Fed.Reg. 45850 (1976).
And even more recently, in opening another rulemaking proceeding to replace the rule overturned by the Court of Appeals, the Commission stated:
"The original procedures proved adequate for the development and illumination of a wide range of fuel cycle impact issues . . . .
". . . The court here indicated that the procedures previously employed could suffice, and indeed did for other issues.
* * * * *
"Accordingly, notice is hereby given that the rules for the conduct of the reopened hearing and the authorities and responsibilities of the Hearing Board will be the same as originally applied in this matter (38 Fed.Reg. 49, January 3, 1973) except that specific provision is hereby made for the Hearing Board to entertain suggestions from participants as to questions which the Board should ask of witnesses for other participants." 42 Fed.Reg. 26988-26989 (1977).
Respondent NRDC likewise happily switches sides depending on the forum. As indicated above, it argues here that the Court of Appeals held only that the record was inadequate. Almost immediately after the Court of Appeals rendered its decision, however, NRDC filed a petition for rulemaking with the Commission which listed over 13 pages of procedural suggestions it thought "necessary to comply with the Court's order and with the mandate of [NEPA]." NRDC, Petition for Rulemaking, NRC Docket No. RM-50-3 (Aug. 10, 1976). These proposals include cross-examination, discovery, and subpoena power. Id., Attachment, Rules for Conduct of Hearing on Environmental Effects of the Uranium Fuel Cycle, &Par; 5(a), 9(b), 11. NRDC likewise challenged the interim fuel cycle rule and suggested to the Court of Appeals that it hold the case pending our decision in this case because the interim rules were "defective due to the inadequacy of the procedures used in developing the rule . . . ." Motion to Hold Petition for Review in Abeyance 1, in NRDC v. NRC, No. 77-1448 (D.C.Cir., petition for Review filed May 13, 1977; motion filed July 5, 1977). NRDC has likewise challenged the procedures being used in the final rulemaking proceeding as being "no more than a re-run of hearing procedures which were found inadequate [by the Court of Appeals]." NRDC Petition for Reconsideration of the Ruling Reopening the Hearings on the Environmental Effects of the Uranium Fuel Cycle 10, NRC Docket No. RM-50-3 (June 6, 1977).
16
Respondent NRDC does not now argue that additional procedural devices were required under the Constitution. Since this was clearly a rulemaking proceeding in its purest form, we see nothing to support such a view. See United States v. Florida East Coast R. Co., 410 U.S. 224, 244-245, 93 S.Ct. 810, 820-821, 35 L.Ed.2d 223 (1973); Bowles v. Willingham, 321 U.S. 503, 64 S.Ct. 641, 88 L.Ed. 892 (1944); Bi-Metallic Investment Co. v. State Board of Equalization, 239 U.S. 441, 36 S.Ct. 141, 60 L.Ed. 372 (1915).
17
NRDC argues that the agency has in the past provided more than the minimum procedures specified in § 4 of the APA and therefore something
more is required here, since "[a]gencies are not free to alter their procedures on a whim, grossly constricting parties' procedural rights when it deems them an impediment or embarrassment to implementing its own views." Brief for Respondents in No. 76-419, p. 46. In support NRDC first argues that the Commission has considered other equally generic issues in adjudicatory proceedings. But NRDC conceded in the court below that the agency could promulgate rules regarding the fuel cycle in rulemaking proceedings. 178 U.S.App.D.C., at 346, 547 F.2d, at 643. Moreover, even here it concedes "that the Commission has in the past chosen to consider both environmental and safety issues that would ordinarily be addressed in adjudicatory licensing proceedings through 'generic' rulemaking, a practice with which the lower court did not take issue." Brief for Respondents in No. 76-419, p. 48. It now contends, however, that the Commission provided more procedural safeguards in those rulemaking proceedings than in the proceeding presently under review. In support it cites three previous proceedings where cross-examination was supposedly provided. Id., at 49 n. 69.
Pretermitting both the fact that the Court of Appeals in no way relied upon this argument in its decision and the question of whether courts can impose additional procedures even when an agency substantially departs from past practice, we find NRDC's argument without merit. In the first place, three proceedings out of the many held by NRC and its predecessor hardly establish the type of longstanding and well established practice deviation from which might justify judicial intervention. It appears, moreover, that in fact the hearings cited by NRDC are not only not part of a longstanding practice but are themselves aberrational. Since 1970 the Commission has conducted a large number of rulemaking proceedings, some of which have involved matters of substantial importance, and almost none of which have involved cross-examination. See, e. g., Quality Assurance Criteria for Nuclear Power Plants, 35 Fed.Reg. 10499 (1970); General Design Criteria for Nuclear Power Plants, 36 Fed.Reg. 3255 (1971); Pre-Construction Permit Activities, 39 Fed.Reg. 14506 (1974); Environmental Prot ction—Licensing and Regulatory Policy and Procedures. Id., at 26279.
18
See, e. g., CAB v. Hermann, 353 U.S. 322, 77 S.Ct. 804, 1 L.Ed.2d 852 (1957); Oklahoma Press Pub. Co. v. Walling, 327 U.S. 186, 66 S.Ct. 494, 90 L.Ed. 614 (1946); Wallace Corp. v. NLRB, 323 U.S. 248, 65 S.Ct. 238, 89 L.Ed. 216 (1944); Endicott Johnson Corp. v. Perkins, 317 U.S. 501, 63 S.Ct. 339, 87 L.Ed. 424 (1943); Utah Fuel Co. v. National Bituminous Coal Comm'n, 306 U.S. 56, 59 S.Ct. 409, 83 L.Ed. 483 (1939); Norwegian Nitrogen Products Co. v. United States, 288 U.S. 294, 53 S.Ct. 350, 77 L.Ed. 796 (1933).
19
See Power Reactor Co. v. Electricians, 367 U.S. 396, 408, 81 S.Ct. 1529, 1535, 6 L.Ed.2d 924 (1961); United States v. Zucca, 351 U.S. 91, 96, 76 S.Ct. 671, 674, 100 L.Ed. 964 (1956).
20
See Wright, The Courts and the Rulemaking Process: The Limits of Judicial Review, 59 Cornell L.Rev. 375, 387-388 (1974).
21
Of course, the court must determine whether the agency complied with the procedures mandated by the relevant statutes. Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402, 417, 91 S.Ct. 814, 824, 28 L.Ed.2d 136 (1971). But, as we indicated above, there is little doubt that the agency was in full compliance with all the applicable requirements of the Administrative Procedure Act.
22
The court also indicated at the end of the opinion in Aeschliman that since "this matter requires remand and reopening of the issues of energy conservation alternatives as well as recalculation of costs and benefits, we assume that the Commission will take into account the changed circumstances regarding Dow's [the principal customer for the plant's steam] need for process steam, and the intended continued operation of Dow's fossil-fuel generating facilities." 178 U.S.App.D.C., at 335, 547 F.2d, at 632. As we read the Court of Appeals opinion, however, this was not an independent basis for vacating and remanding the Commission's licensing decision. It also appears from the record that the Commission has reconsidered the changed circumstances and refused to reopen the proceedings at least three times, see App. 346-347, 348-349, 350-351, and possibly a fourth, see Brief for Nonfederal Respondents in No. 76-528, pp. 19-20, n. 8. We see no error in the Commission's actions in this respect.
| 89
|
435 U.S. 497
98 S.Ct. 1185
55 L.Ed.2d 443
E. I. MALONE, Commissioner of Labor and Industry for Minnesota, Appellant,v.WHITE MOTOR CORPORATION and White Farm Equipment Company.
No. 76-1184.
Argued Jan. 10, 1978.
Decided April 3, 1978.
Syllabus
The 1971 version of a pension plan negotiated by appellee company and the union representing its employees provided that pensions were to be payable only from a fund established under the plan. Funding of the pension plan was in part to be on a deferred basis; the excess of accrued liability of the fund's assets was to be met through contributions from the employer's continuing operations. Though the company had the right to terminate the plan, it guaranteed to pay benefits amounting to $7 million above the fund's assets. A few weeks before appellee, on May 1, 1974, exercised its termination right, Minnesota's Private Pension Benefits Protection Act (Pension Act) was enacted, which imposed "a pension funding charge" directly against any employer who ceased to operate a place of employment or a pension plan. After appellant state official had certified that appellee by application of the Pension Act owed a pension funding charge of over $19 million, appellee brought this suit in District Court, challenging the constitutionality of the Pension Act, inter alia, on the ground that it interfered with the process of collective bargaining sanctioned by the National Labor Relations Act (NLRA) and therefore was pre-empted by the NLRA. Section 10(b) of the federal Welfare and Pension Plans Disclosure Act (Disclosure Act) provided that the Disclosure Act shall not exempt any person from liability provided by any present or future federal or state law affecting the operation of pension plans. Section 10(a) provided that the Disclosure Act shall not be construed to prevent any State from obtaining additional information relating to a pension plan "or from otherwise regulating such plan." The District Court, having taken note of the § 10(b) disclaimer, found sufficient evidence of congressional intent that the Pension Act was not pre-empted by federal law, and ruled in favor of appellant. The Court of Appeals reversed, holding that by purporting to override the existing pension plan in several respects, the Pension Act encroached upon subjects that Congress had committed for determination to the collective-bargaining process. The court also concluded that § 10(b) of the Disclosure Act related only to state statutes governing those obligations of trust undertaken by persons managing employment benefit funds, the violation of which gives rise to criminal or civil penalties, and that therefore there was no basis for construing the Disclosure Act as leaving a State with power to change the substantive terms of pension plan agreements. Held :
1. The NLRA neither expressly nor by implication forecloses state regulatory power over pension plans that may be the subject of collective bargaining. Sections 10(b) and 10(a) of the Disclosure Act, together with the legislative history of that statute, indicate Congress' intention to preserve state regulatory authority over pension plans, including those resulting from collective bargaining. Congress was concerned not only with corrupt pension plans but also with the possibility that those that were honestly managed would be prematurely terminated by the employer, leaving employees without funded pensions at retirement age; and the Disclosure Act clearly anticipated a broad regulatory role for the States. Pp. 504-514.
2. That the Pension Act applies to pre-existing collective-bargaining agreements does not render it pre-empted, since it does not render it more or less consistent with congressional policy. Appellee's claim of unfair retroactive impact may be considered in the context of appellee's due process and impairment-of-contract claims, which are not before the Court and which the District Court will consider on remand. Pp. 514-515.
8 Cir., 545 F.2d 599, reversed.
Richard B. Allyn, St. Paul, Minn., for appellant.
Allan A. Ryan, Jr., Washington, D. C., for the United States, as amicus curiae, by special leave of Court.
Frank C. Heath, Cleveland, Ohio, for appellees.
Mr. Justice WHITE delivered the opinion of the Court.
1
A Minnesota statute, the Private Pension Benefits Protection Act, Minn.Stat. § 181B.01 et seq. (1976) (Pension Act), passed in April 1974, established minimum standards for the funding and vesting of employee pensions. The question in this case is whether this statute, which since January 1, 1975, has been pre-empted by the federal Employee Retirement Income Security Act of 1974 (ERISA),1 was pre-empted prior to that time by federal labor policy insofar as it purported to override or control the terms of collective-bargaining agreements negotiated under the National Labor Relations Act (NLRA). A Federal District Court held that it was not, 412 F.Supp. 372 (Minn.1976), but the Court of Appeals for the Eighth Circuit disagreed and held the Pension Act invalid. 545 F.2d 599 (1976). Because the case fell within our mandatory appellate jurisdiction pursuant to 28 U.S.C. § 1254(2), we noted probable jurisdiction. 434 U.S. 813, 98 S.Ct. 49, 54 L.Ed.2d 69. We reverse.
2
* In 1963, White Motor Corp. and its subsidiary, White Farm Equipment Co. (hereafter collectively referred to as appellee), purchased from another company two farm equipment manufacturing plants, located in Hopkins, Minn., and Minneapolis, Minn. (on Lake Street). The employees at these plants, represented by the International Union, United Automobile, Aerospace and Agricultural Implement Workers of America (UAW), were covered by a pension plan established through collective bargaining.
3
Under the 1971 collective-bargaining contract, the pension plan provided that an employee who attained the age of 40 and completed 10 or more years of credited service with the company was entitled to a pension. The amount of the pension would depend upon the age at which the employee retired. In language unchanged since 1950, the 1971 plan provided that "[p]ensions shall be payable only from the Fund, and rights to pensions shall be enforceable only against the Fund." App. 155.2 The Plan, however, was to be funded in part on a deferred basis. The unpaid past service liability—the excess of accrued liability over the present value of the assets of the Fund—was to be met through contributions by the employer from its continuing operations.3
4
Section 10.02 of the Plan provided that "[t]he Company shall have the sole right at any time to terminate the entire plan." During the 1968 and 1971 negotiations, however, the UAW obtained from appellee guarantees that, upon termination, pensions for those entitled to them would remain at certain designated levels, though lower than those specified in the Plan.4 By virtue of these guarantees, appellee assumed a direct liability for pension payments amounting to $7 million above the assets in the Fund.
5
Appellee exercised its contractual right to terminate the Pension Plan on May 1, 1974.5 A few weeks before, however, the Pension Act had been enacted. This statute imposed "a pension funding charge" directly against any employer who ceased to operate a place of employment or a pension plan. This charge would be sufficient to insure that all employees with 10 or more years of service would receive whatever pension benefits had accrued to them, regardless of whether their rights to those benefits had "vested" within the terms of the Plan. The funds obtained through the pension funding charge would then be used to purchase an annuity payable to the employee when he reached normal retirement age. Although the Pension Act did not compel an employer to adopt or continue a pension plan, it did guarantee to employees with 10 or more years' service full payment of their accrued pension benefits.
6
Pursuant to the Pension Act, the appellant, Commissioner of Labor and Industry of the State of Minnesota, undertook an investigation of the pension plan termination here involved and later certified that the sum necessary to achieve compliance with the Act was $19,150,053. Under the Pension Act, a pension funding charge in this amount became a lien on the assets of appellee. Appellee promptly filed this suit in Federal District Court.
7
Appellee's complaint, as amended, asserted violations of the Supremacy Clause, the Contract Clause, and the Due Process and Equal Protection Clauses of the Fourteenth Amendment of the United States Constitution. The Supremacy Clause claim was based on the argument that the Pension Act was in conflict with several provisions of the NLRA,6 as amended, 29 U.S.C. § 151 et seq., because it "interferes with the right of Plaintiffs to free collective bargaining under federal law and . . . vitiates collective bargaining agreements entered into under the authority of federal law, by imposing upon Plaintiffs obligations which, by the express terms of such collective bargaining agreements, Plaintiffs were not required to assume." App. A-9—A-10. Appellee moved for partial summary judgment or, alternatively, for a preliminary injunction based on the pre-emption claim.
8
Distinguishing Local 24, International Brotherhood of Teamsters v. Oliver, 358 U.S. 283, 79 S.Ct. 297, 3 L.Ed.2d 312 (1959), and relying on evidence of congressional intent contained in the federal Welfare and Pension Plans Disclosure Act (Disclosure Act), 72 Stat. 997, as amended, 76 Stat. 35, 29 U.S.C. § 301 et seq., the District Court held that the Pension Act was not pre-empted by federal law. 412 F.Supp. 372 (Minn.1976). On appeal, the Court of Appeals for the Eighth Circuit held that the Pension Act was pre-empted by federal labor law, and reversed the District Court. 545 F.2d 599 (1976). The reason was that the Pension Act purported to override the terms of the existing pension plan, arrived at through collective bargaining, in at least three ways: It granted employees vested rights not available under the pension plan; to the extent of any deficiency in the pension fund, it required payment from the general assets of the employer, while the pension plan provided that benefits shall be paid only out of the pension fund; and the Pension Act imposed liability for post- ermination payments to the pension fund beyond those specifically guaranteed. This, the court ruled, the State could not do; for if, under Lodge 76, Machinists v. Wisconsin Employment Relations Comm'n, 427 U.S. 132, 96 S.Ct. 2548, 49 L.Ed.2d 396 (1976), "states cannot control the economic weapons of the parties at the bargaining table, a fortiori, they may not directly control the substantive terms of the contract which results from that bargaining." 545 F.2d, at 606. Further, as the court understood the opinion in Oliver, supra, "a state cannot modify or change an otherwise valid and effective provision of a collective bargaining agreement." 545 F.2d, at 608. Finally, the Court of Appeals found that the pre-emption disclaimer in the Disclosure Act relied on by the District Court related only
9
"to state statutes governing those obligations of trust undertaken by persons managing, administrating or operating employee benefit funds, the violation of which gives rise to civil and criminal penalties. Accordingly, no warrant exists for construing this legislation to leave to a state the power to change substantive terms of pension plan agreements." Id., at 609.
II
10
It is uncontested that whether the Minnesota statute is invalid under the Supremacy Clause depends on the intent of Congress. "The purpose of Congress is the ultimate touchstone." Retail Clerks v. Schermerhorn, 375 U.S. 96, 103, 84 S.Ct. 219, 223, 11 L.Ed.2d 179 (1963). Often Congress does not clearly state in its legislation whether it intends to pre-empt state laws; and in such instances, the courts normally sustain local regulation of the same subject matter unless it conflicts with federal law or would frustrate the federal scheme, or unless the courts discern from the totality of the circumstances that Congress sought to occupy the field to the exclusion of the States. Ray v. Atlantic Richfield Co., 435 U.S. 151, 157-158, 98 S.Ct. 988, 994-995, 55 L.Ed.2d 179; Jones v. Rath Packing Co., 430 U.S. 519, 525, 540-541, 97 S.Ct. 1305, 1309, 1316-1317, 51 L.Ed.2d 604 (1977); Rice v. Santa Fe Elevator Corp., 331 U.S. 218, 230, 67 S.Ct. 1146, 1152, 91 L.Ed. 1447 (1947). "We cannot declare pre-empted all local regulation that touches or concerns in any way the complex interrelationships between employees, employers and unions; obviously, much of this is left to the States." Motor Coach Employees v. Lockridge, 403 U.S. 274, 289, 91 S.Ct. 1909, 1919, 29 L.Ed.2d 473 (1971). The Pension Act "leaves much to the states, though Congress has refrained from telling us how much. We must spell out from conflicting indications of congressional will the area in which state action is still permissible." Garner v. Teamsters, 346 U.S. 485, 488, 74 S.Ct. 161, 164, 98 L.Ed. 228 (1953). Here, the Court of Appeals concluded that the Minnesota statute was invalid because it trenched on what the court considered to be subjects that Congress had committed for determination to the collective-bargaining process.
11
There is little doubt that under the federal statutes governing labor-management relations, an employer must bargain about wages, hours, and working conditions and that pension benefits are proper subjects of compulsory bargaining. But there is nothing in the NLRA, including those sections on which appellee relies, which expressly forecloses all state regulatory power with respect to those issues, such as pension plans, that may be the subject of collective bargaining. If the Pension Act is pre-empted here, the congressional intent to do so must be implied from the relevant provisions of the labor statutes. We have concluded, however, that such implication should not be made here and that a far more reliable indicium of congressional intent with respect to state authority to regulate pension plans is to be found in § 10 of the Disclosure Act. Section 10(b) provided:
12
"The provisions of this Act, except subsection (a) of thi section and section 13, and any action taken thereunder, shall not be held to exempt or relieve any person from any liability, duty, penalty, or punishment provided by any present or future law of the United States or of any State affecting the operation or administration of employee welfare or pension benefit plans, or in any manner to authorize the operation or administration of any such plan contrary to any such law."
13
Also, § 10(a), after shielding an employer from duplicating state and federal filing requirements, makes clear that other state laws remained unaffected:
14
"Nothing contained in this subsection shall be construed to prevent any State from obtaining such additional information relating to any such plan as it may desire, or from otherwise regulating such plan."
15
Contrary to the Court of Appeals, we believe that the foregoing provisions, together with the legislative history of the 1958 Disclosure Act, clearly indicate that Congress at that time recognized and preserved state authority to regulate pension plans, including those plans which were the product of collective bargaining. Because the 1958 Disclosure Act was in effect at the time of the crucial events in this case, the expression of congressional intent included therein should control the decision here.7
16
Congressional consideration of the problems in the pension field began in 1954, after the President sent a message to Congress recommending that
17
"Congress initiate a thorough study of welfare and pension funds covered by collective bargaining agreements, with a view of enacting such legislation as will protect and conserve these funds for the millions of working men and women who are the beneficiaries."8
18
In the next four years, through hearings, studies, and investigations, a Senate Subcommittee canvassed the problems of the nearly unregulated pension field and possible solutions to them. Although Congress turned up extensive evidence of kickbacks, embezzlement, and mismanagement, it concluded:
19
"The most serious single weakness in this private social insurance complex is not in the abuses and failings enumerated above. Overshadowing these is the too frequent practice of withholding from those most directly affected, the employee-beneficiaries, information which will permit them to determine (1) whether the program is being administered efficiently and equitably, and (2) more importantly, whether or not the assets and prospective income of the programs are sufficient to guarantee the benefits which have been promised to them." S.Rep.No. 1440, 85th Cong., 2d Sess., 12 (1958) (hereinafter S.Rep.).
20
As a first step toward protection of the workers' interests in their pensions, Congress enacted the 1958 Disclosure Act. The statute required plan administrators to file with the Labor Department and make available upon request both a description of the plan and an annual report containing financial information. In the case of a plan funded through a trust, the annual report was to include, inter alia,
21
"the type and basis of funding, actuarial assumptions used, the amount of current and past service liabilities, and the number of employees both retired and nonretired covered by the plan . . .,"
22
as well as a valuation of the assets of the fund.
23
The statute did not, however, prescribe any substantive rules to achieve either of the two purposes described above. The Senate Report explained:
24
"[T]he legislation proposed is not a regulatory statute. It is a discl sure statute and by design endeavors to leave regulatory responsibility to the States." S.Rep. 18.
25
This objective was reflected in §§ 10(a) and 10(b), quoted above. As the Senate Report explained, the statute was designed "to leave to the States the detailed regulations relating to insurance, trusts and other phases of their operations." S.Rep. 19. There was "no desire to get the Federal Government involved in the regulation of these plans but a disclosure statute which is administered in close cooperation with the States could also be of great assistance to the States in carrying out their regulatory functions." Id., at 18.
26
There is also no doubt that the Congress which adopted the Disclosure Act recognized that it was legislating with respect to pension funds many of which had been established by collective bargaining. The message from the President which had prompted the original inquiry had focused on the need to protect workers "covered by collective bargaining agreements." The problems that Congress had identified were characteristic of bargained-for plans as well as of others. The Reports of both the Senate and House Committees explained that pension funds were frequently established through the collective-bargaining process. S.Rep. 8; H.R.Rep.No. 2283, 85th Cong., 2d Sess., 9 (1958) (hereinafter H.R.Rep.). The Senate Report emphasized the need for protection even where the plan was incorporated in a collective-bargaining agreement. S.Rep. 4, 8, 14. Congressmen explaining the bill on the floor also made clear that the bill would apply to pension plans "whether or not they have been brought into existence through collective bargaining." 104 Cong.Rec. 16420 (1958) (remarks of Cong. Lane); id., at 16425 (remarks of Cong. Wolverton); see id., at 7049-7052 (remarks of Sen. Kennedy). Indeed, the bill met opposition in both the Senate and the House on the ground that its approach would "require employers to surrender to labor unions economic and bargaining power which should be negotiated through the normal channels of collective bargaining." S.Rep. 34 (minority view of Sen. Allott); accord, H.R.Rep. 25 (minority views).9 Yet neither the bill as enacted nor its legislative history drew a distinction between collectively bargained and all other plans, either with regard to the disclosure role of the federal legislation or the regulatory functions that would remain with the States.
27
Appellee argues that the Disclosure Act's allocation of regulatory responsibility to the States is irrelevant here because the Disclosure Act was "enacted to deal with corruption and mismanagement of funds." Brief for Appellees 36. We think that the appellee advances an excessively narrow view of the legislative history. Congress was concerned not only with corruption, but also with the possibility that honestly managed pension plans would be terminated by the employer, leaving the employees without funded pensions at retirement age.
28
The Senate Report specifically stated: "Entirely aside from abuses or violations, there are compelling reasons why there should be disclosure of the financial operation of all types of plans." S.Rep. 16. The Report then reproduced a chart showing the number of pension plans registered with the Internal Revenue Service that had been terminated during a 2-month period. Ibid. The Senate Committee also observed: "Trustee pension plans commonly limit benefits, even though fixed, to what can be paid out of the funds in the pension trust." Id., at 15. As an illustration, the Report quoted language from a collectively bargained pension plan disclaiming any liability of the company in the event of termination. Ibid.10 The Senate Report also showed an awareness of the problems posed by vesting requirements11 and expressed concern that "employees whose rights do not mature within such contract period must rely upon the expectation that their union will be able to renew the contract or negotiate a similar one upon its termination." Id., at 8. Thus, Congress was concerned with many of the same issues as are involved in this case—unexpected termination, inadequate funding, unfair vesting requirements. In preserving generally state laws "affecting the operation or administration of employee welfare or pension benefit plans," 72 Stat. 1003, Congress indicated that the States had and were to have authority to deal with these problems.
29
Moreover, it should be emphasized that § 10 of the Disclosure Act referred specifically to the "future," as well as "present" laws of the States. Congress was aware that the States had thus far attempted little regulation of pension plans.12 The federal Disclosure Act was envisioned as laying a foundation for future state regulation. The Congress sought "to provide adequate information in disclosure legislation for possible later State . . . regulatory laws." H.R.Rep. 2. Senator Kennedy, a manager of the bill, explained to his colleagues:
30
"The objective of the bill is to provide more adequate protection for the employee-beneficiaries of these plans through a uniform Federal Disclosure Act which will . . . make the facts available not only to the participants and the Federal Government but to the States, in order that any desired State regulation can be more effectively accomplished." 104 Cong.Rec. 7050 (1958).
31
See also S.Rep. 18. Senator Kennedy had "no doubt that this [was] an area in which the States [were] going to begin to move." 104 Cong.Rec. 7053 (1958).
32
The aim of the Disclosure Act was perhaps best summarized by Senator Smith, the ranking Republican on the Senate Committee and a supporter of the bill. He stated:
33
"It seems to be the policy of the pending legislation to extend beyond the problem of corruption. As stated in the language of the bill, one of its aims is to make available to the employee-beneficiaries information which will permit them to determine, first, whether the program is being administered efficiently and equitably; and, second, more importantly, whether or not the assets and prospective income of the programs are sufficient to guarantee the benefits which have been promised to them.
34
"This present bill provides for far more than anticorruption legislation directed against the machinations of dishonest men who betray their trust. Rather, it inaugurates a new social policy of accountability. . . .
35
"This policy could very well lead to the establishment of mandatory standards by which these plans must be governed." Id., at 7517.
36
It is also clear that Congress contemplated that the primary responsibility for developing such "mandatory standards" would lie with the States.
37
Although Congress came to a quite different conclusion in 1974 when ERISA was adopted, the 1958 Disclosure Act clearly anticipated a broad regulatory role for the States. In light of this history, we cannot hold that the Pension Act is nevertheless implicitly pre-empted by the collective-bargaining provisions of the NLRA. Congress could not have intended that bargained-for plans, which were among those that had given rise to the very problems that had so concerned Congress, were to be free from either state or federal regulation insofar as their substantive provisions were concerned. The Pension Act seeks to protect the accrued benefits of workers in the event of plan termination and to insure that the assets and prospective income of the plan are sufficient to guarantee the benefits promised—exactly the kind of problems which the 85th Congress hoped that the States would solve.
38
This conclusion is consistent with the Court's decision in Teamsters v. Oliver, 358 U.S. 283, 79 S.Ct. 297, 3 L.Ed.2d 312 (1959), which concerned a claimed conflict between a state antitrust law and the terms of a collective-bargaining agreement specially adapted to the trucking business. The agreement prescribed a wage scale for truckdrivers and, in order to prevent evasion, provided that drivers who own and drive their own vehicles should be paid, in addition to the prescribed wage, a stated minimum rental for the use of their vehicles. An Ohio court had invalidated this portion of the collective-bargaining agreement under Ohio antitrust law. This Court reversed, noting that "[t]he application [of the Ohio law] would frustrate the parties' solution of a problem which Congress has required them to negotiate in good faith toward solving and in the solution of which it imposed no limitations relevant here." Id., at 296, 79 S.Ct., at 304.
39
The Oliver opinion contains broad language affirming the independence of the collective-bargaining process from state interference:
40
"Federal law here created the duty upon the parties to bargain collectively; Congress has provided for a system of federal law applicable to the agreement the parties made in response to that duty . . . and federal law sets some outside limits (not contended to be exceeded here) on what their agreement may provide . . .. We believe that there is no room in this scheme for the application here of this state policy limiting the solutions that the parties' agreement can provide to the problems of wages and working conditions." Ibid. (citations omitted).
41
The opinion nevertheless recognizes exceptions to this general rule. One of them, necessarily anticipated, was the situation where it is evident that Congress intends a different result:
42
"The solution worked out by the parties was not one of a sort which Congress has indicated may be left to prohibition by the several States. Cf. Algoma Plywood & Veneer Co. v. Wisconsin Employment Relations Board, 336 U.S. 301, 307-312, 69 S.Ct. 584, 93 L.Ed. 691." Ibid.13
43
As we understand the 1958 Disclosure Act and its legislative history, the collective-bargaining provisions at issue here dealt with precisely the sort of subject matter "which Congress . . . indicated may be left to [regulation] by the several states." Congress clearly envisioned the exercise of state regulation power over pension funds, and we do not depart from Oliver in sustaining the Minnesota statute.
III
44
Insofar as the Supremacy Clause issue is concerned, no different conclusion is called for because the Minnesota statute was enacted after the UAW-White Motor Corp. agreement had been in effect for several years. Appellee points out that the parties to the 1971 collective-bargaining agreement therefore had no opportunity to consider the impact of any such legislation. Although we understand the equitable considerations which underlie appellee's argument, they are not material to the resolution of the pre-emption issue since they do not render the Minnesota Pension Act any more or less consistent with congressional policy at the time it was adopted.14
45
Our decision in this case is, of course, limited to appellee's claim that the Minnesota statute is inconsistent with the federal labor statutes. Appellee's other constitutional claims are not before us. It remains for the District Court to consider on remand the contentions that the Minnesota Pension Act impairs contractual obligations and fails to provide due process in violation of the United States Constitution. Without intimating any views on the merits of those questio s,15 we note that appellee's claim of unfair retroactive impact can be considered in that context. All that we decide here is that the decision of the Court of Appeals finding federal pre-emption of the Minnesota Pension Act should be and hereby is
46
Reversed.
47
Mr. Justice BRENNAN and Mr. Justice BLACKMUN took no part in the consideration or decision of this case.
48
Mr. Justice STEWART, with whom THE CHIEF JUSTICE joins, dissenting.
49
I substantially agree with the reasoning of the Court of Appeals for the Eighth Circuit in this case. 545 F.2d 599. Accordingly, I would affirm the judgment before us.
50
The Court today seems to concede that Minnesota's statutory modification of the appellee's substantive obligations under its collective-bargaining agreement would be pre-empted by the federal labor laws if Congress had not somehow indicated that the State was free to impose this particular modification. Ante, at 413-414. The Court finds such an indication implicit in Congress' failure to undertake substantive regulation of pension plans when it enacted the so-called Disclosure Act of 1958. I do not believe, however, that inferences drawn largely from what Congress did not do in enacting the Disclosure Act are sufficient to override the fundamental policy of the national labor laws to leave undisturbed "the parties' solution of a problem which Congress has required them to negotiate in good faith toward solving . . . ." Local 24, International Brotherhood of Teamsters v. Oliver, 358 U.S. 283, 296, 79 S.Ct. 297, 304, 3 L.Ed.2d 312.
51
Mr. Justice POWELL, with whom The CHIEF JUSTICE joins, dissenting.
52
I join Mr. Justice STEWART'S conclusion that the evidence as to what Congress did not do in the federal Welfare and Pension Plans Disclosure Act, 72 Stat. 997, 29 U.S.C. § 301 et seq., is insufficient to override national labor policy barring interference by the States with privately negotiated solutions to problems involving mandatory subjects of collective bargaining.
53
As in Teamsters v. Oliver, 358 U.S. 283, 297, 79 S.Ct. 297, 305, 3 L.Ed.2d 312 (1959), "[w]e have not here a case of a collective bargaining agreement in conflict with a local health or safety regulation; the conflict here is between the federally sanctioned agreement and state policy which seeks specifically to adjust relationships in the world of commerce." The statute in this case removes from the bargaining table certain means of dealing with an inevitable trade-off between somewhat conflicting industrial relations goals—the tension between maintaining competitive standards of present compensation and, at the same time, creating a solvent fund for the security of long-term employees upon retirement. In essence, Minnesota has restricted the available options to the fully funded pension plan that vests upon 10 years of service, whenever an employer ceases to operate a place of employment or pension plan. It also imposes a principle of direct liability that well may discourage employer participation in matters of such vital importance to working men and women.
54
The retroactivity feature of the Minnesota measure exacerbates the degree of interference with the system of free collective bargaining. Here a statute resulting in the imposition on appellee of substantial financial liability, perhaps as large as $19 million, was enacted and took effect at a time when a collective-bargaining agreement embodying different provisions continued in force, by virtue of an arbitration decision, even though the plant in question had closed. Essential features of the negotiated plan, i cluding deferred funding of past-service liability, limited employer liability, and a power of termination, were negated by the legislation. The parties were given no opportunity to consider this expansion of liability in determining how the bargain should be struck. It is not unlikely that the provisions of the pension plan in issue would have been different if the parties could have predicted this statutory development. This is not, therefore, a case where state law serves as a backdrop to negotiations, while affording the parties considerable freedom to strike the best possible bargain consistent with state substantive policies. This statute became law in midterm, significantly changing the economic balance reached by the parties at the bargaining table.
55
In the absence of congressional indication to the contrary, or the type of local health or safety regulation adverted to in Oliver, the States may not alter the terms of existing collective-bargaining agreements on mandatory subjects of bargaining. Congress can be expected to take into account the impact of retroactive legislation on the bargaining process, and often provides for a delayed effective date in order to minimize any disruption.* But the States, because their concerns are distinct from the considerations that animate a national labor policy, are unlikely to weigh—with perception and understanding—the relevant private and public interests. There is little evidence that Minnesota took more than a parochial view of these considerations when it amended retroactively the bargaining agreement of the parties.
56
Until Congress expresses its will in clearer fashion than the ambiguous pre-emption disclaimer of the 1958 Disclosure Act, ante, at 505, federal labor policy requires invalidation of the type of statute involved in this case. I would affirm the judgment of the Court of Appeals.
1
ERISA, 88 Stat. 832, 29 U.S.C. § 1001 et seq. (1970 ed., Supp. V), provides for comprehensiv federal regulation of employee pension plans, and contains a provision expressly pre-empting all state laws regulating covered plans. § 1144(a) (1970 ed., Supp. V). Because ERISA did not become effective until January 1, 1975, and expressly disclaims any effect with regard to events before that date, it does not apply to the facts of this case.
2
Section 6.17 of the Plan also stated:
"No benefits other than those specifically provided for are to be provided under this Plan. No employee shall have any vested right under the Plan prior to his retirement and then only to the extent specifically provided herein." App. to Jurisdictional Statement A-29.
Section 9.04, "Rights of Employees in Fund," is also relevant:
"No employee, participant or pensioner shall have any right to, or interest in any part of any Trust Fund created hereunder, upon termination of employment or otherwise, except as provided under this Plan and only to the extent therein provided. All payments of benefits as provided for in this Plan shall be made only out of the Fund or Funds of the Plan, and neither the Company nor any Trustee nor any Pension Committee or Member thereof shall be liable therefore in any manner or to any extent." App. to Jurisdictional Statement A-7.
3
The 1971 version of the Plan contained a provision which required the employer to fund the net deficiency over a period of 35 years, beginning in 1971. The 1968 version contained a similar provision which contemplated that the deficiency would be amortized over a 30-year period.
4
The effect of the guarantees was to assure that the employees would receive pension benefits at a level about 60% of that specified in the Plan.
5
In January 1972, after several years of losses, appellee informed the UAW that it intended to close both of the plants at issue. As a result of negotiations, the Hopkins plant continued to operate, but the Lake Street plant was closed. At the time the Lake Street plant was closed, there was a net deficiency in the Pension Fund of $14 million. As of January 1, 1975, there were 981 retirees under the Plan and 233 persons eligible for deferred pensions. In addition, there were 44 terminated employees who at the time of the termination had 10 years of service but had not attained the age of 40. Two hundred and sixty employees continued to work at the Hopkins plant.
Appellee also attempted to terminate the Pension Plan on June 30, 1972, but the UAW challenged this action on the ground that the Plan could not be terminated until expiration of the collective-bargaining agreement on May 1, 1974. An arbitrator upheld the union's position. See International Union, UAW v. White Motor Corp., 505 F.2d 1193 (CA8 1974).
6
The complaint claimed a conflict with the provisions and policies of §§ 1, 7, 8(a)(5), 8(b)(3), and 8(d) of the NLRA, 29 U.S.C. §§ 151, 157, 158(a)(5), 158(b)(3), and 158(d).
7
The Disclosure Act, codified at 29 U.S.C. § 301 et seq., was specifically repealed by ERISA. 29 U.S.C. § 1031(a) (1970 ed., Supp. V). However, ERISA was enacted on September 2, 1974 after the operative events in this case—and the repeal did not take effect until January 1, 1975. § 1031(b)(1) (1970 ed., Supp. V). See generally n. 1, supra.
8
Public Papers of the Presidents, Dwight D. Eisenhower, 1954, ¶ 5, p. 43 (1960).
9
Opponents of the bill argued that the legislation would "seriously interfere with . . . bargaining relationships" by giving labor unions access to information about the costs of certain employer-administered benefit plans. 104 Cong.Rec. 7209 (1958) (remarks of Sen. Allott). In these level-of-benefit plans, the employer guaranteed to his employees specified benefits and then undertook the full cost and management of the plan. The unions were often not told the annual cost of providing benefits under the plan. Senator Allott, the principal opponent of the bill, argued on the floor:
"Where the employer, either on his own initiative or as a result of collective bargaining, agrees to provide a level-of-benefits plan, the question of whether employees or their representatives should have further information is one to be bargained between them. How the employer intends to meet this financial obligation, or how the financial operation of the fund is set up to pay the benefits, is a matter to be settled by the parties concerned—not granted by operation of law." Id., at 7208.
Congressman Bosch, the leading opponent of the bill in the House, argued bluntly:
"Those level-of-benefits plans which now operate under collective bargaining contracts were agreed to with the full knowledge by the unions involved that the cost, operation and management were the exclusive right of the persons responsible under the plans and, if the unions desired it otherwise, they could have bargained on some other basis than level-of-benefits If the labor unions wish to change this situation, they should do it through the normal channels of collective bargaining and not by legislation." Id., at 16424.
Amendments proposed by Senator Allott and Congressman Bosch seeking to exempt level-of-benefits plans from the statute were defeated. Id., at 7333, 16442.
10
The Report quoted "representative language" from a General Motors-UAW contract which provided:
"The pension benefits of the plan shall be only such as can be provided by the assets of the pension fund or by any insured fund, and there shall be no liability or obligation on the part of the corporation to make any further contributions to the trustee or the insurance company in event of termination of the plan. No liability for the payment of pension benefits under the plan shall be imposed upon the corporation, the officers, directors, or stockholders of the corporation." S.Rep. 15.
11
Among the "basic facts" noted by the Committee were:
"9. The employees covered by these group plans have no specific rights until they meet the conditions of the particular plans. For example, in the case of a pension plan this might involve 30 years' service and the attainment of age 65 . . ..
"10. Although these plans envisaged a continuing operation to provide benefits for all employees covered—in plans which are not collectively bargained, which constitute the majority of all plans and which are predominantly administered by employers, there is actually no assurance that the benefits will be forthcoming in view of a universally employed clause in such plans to the effect that the employer can terminate the plan at his discretion. Even in collectively bargained plans the employer's agreement to provide for part or all the costs of the benefits is a short-term contract of 1 to 5 years." Id., at 4.
12
Senator Ives, who had served as chairman of the Senate Investigating Committee during the 83d Congress, explained:
"Six States already have enacted legislation on the general subject of pension and welfare plans. Other States are considering such legislation." 104 Cong.Rec. 7186-7187 (1958). The coverage of extant state legislation was more fully discussed in S.Rep. 18.
13
The Court also pointed out:
"We have not here a case of a collective bargaining agreement in conflict with a local health or safety regulation; the conflict here is between the federally sanctioned agreement and state policy which seeks specifically to adjust relationships in the world of commerce." 358 U.S., at 297, 79 S.Ct., at 305.
The State claims that the statute is a health or safety regulation that would be valid under Oliver, wholly aside from the Disclosure Act. We need not pass on this contention.
14
We note that the United States as amicus curiae, argues that the Minnesota statute is not pre-empted. Its view is that application of the Minnesota Pension Act to pre-1974 labor agreements is not disruptive of the federal labor scheme.
15
In Fleck v. Spannaus, 449 F.Supp. 644 (Minn.1977), a three-judge District Court upheld the Minnesota Pension Act against a federal constitutional challenge based on the Contract Clause, as well as other constitutional provisions. We have noted probable jurisdiction in that case, 434 U.S. 1045, 98 S.Ct. 888, 54 L.Ed.2d 795, but have not yet heard oral argument.
*
Unlike the Minnesota statute, the federal Employee Retirement Income Security Act of 1974 (ERISA), 29 U.S.C. § 1001 et seq. (1970 ed., Supp. V), provides for a careful phasing in of the statute's requirements in the case of collectively negotiated pension plans. For such plans, ERISA funding requirements will apply only to plan years beginning after termination of the collective-bargaining agreement in effect on January 1, 1974, or plan years beginning after December 31, 1980, whichever is earlier. §§ 1061(c)(1) and 1086(c)(1) (1970 ed., Supp. V).
This type of considered congressional response to the special problems of arrangements flowing from collective-bargaining agreements is also found in the Equal Pay Act of 1963, § 4, 77 Stat. 57, amending the Fair Labor Standards Act of 1938, 29 U.S.C. § 206(d). Congress provided that in the case of bona fide collective-bargaining agreements in effect at least 30 days prior to the date of enactment of the 1963 measure, the amendments would take effect upon the termination of such collective-bargaining agreement or upon the expiration of two years from the enactment date, whichever occurred first.
| 910
|
435 U.S. 475
98 S.Ct. 1173
55 L.Ed.2d 426
Winston M. HOLLOWAY et al., Petitioners,v.State of ARKANSAS.
No. 76-5856.
Argued Nov. 2, 1977.
Decided April 3, 1978.
Syllabus
Petitioners, three codefendants at a state criminal trial in Arkansas, made timely motions, both a few weeks before the trial and before the jury was empaneled, for appointment of separate counsel, based on their appointed counsel's representations that, because of confidential information received from the codefendants, he was confronted with the risk of representing conflicting interests and could not, therefore, provide effective assistance for each client. The trial court denied these motions, and petitioners were subsequently convicted. The Arkansas Supreme Court affirmed, concluding that the record showed no actual co flict of interests or prejudice to petitioners. Held:
1. The trial judge's failure either to appoint separate counsel or to take adequate steps to ascertain whether the risk of a conflict of interests was too remote to warrant separate counsel, in the face of the representations made by counsel before trial and again before the jury was empaneled, deprived petitioners of the guarantee of "assistance of counsel" under the Sixth Amendment. Pp. 481-487.
(a) The trial court has a duty to refrain from embarrassing counsel for multiple defendants by insisting or even suggesting that counsel undertake to concurrently represent interests that might conflict, when the possibility of inconsistent interests is brought home to the court by formal objections, motions, and counsel's representations. Glasser v. United States, 315 U.S. 60, 76, 62 S.Ct. 457, 467, 86 L.Ed. 680. Pp. 484-485.
(b) An attorney's request for the appointment of separate counsel, based on his representations regarding a conflict of interests, should be granted, considering that he is in the best position professionally and ethically to determine when such a conflict exists or will probably develop at trial; that he has the obligation, upon discovering such a conflict, to advise the court at once; and, that as an officer of the court, he so advises the court virtually under oath. Pp. 485-486.
(c) Here no prospect of dilatory practices by the attorney was present to justify the trial court's failure to take adequate steps in response to the repeated motions for appointment of separate counsel. Pp. 486-487.
2. Whenever a trial court improperly requires joint representation over timely objection reversal is automatic, and prejudice is presumed regardless of whether it was independently shown. Glasser v. United States, supra, at 75-76, 62 S.Ct. at 467. Pp. 487-491.
(a) The assistance of counsel is among those "constitutional rights so basic to a fair trial that their infraction can never be treated as harmless error," Chapman v. California, 386 U.S. 18, 23, 87 S.Ct. 824, 827, 17 L.Ed.2d 705. P. 489.
(b) That an attorney representing multiple defendants with conflicting interests is physically present at pretrial proceedings, during trial, and at sentencing does not warrant departure from the general rule requiring automatic reversal. Pp. 489-490.
(c) A rule requiring a defendant to show that a conflict of interests—which he and his counsel tried to avoid by timely objections to the joint representation—prejudiced him in some specific fashion would not be susceptible of intelligent, evenhanded application. Pp. 490-491.
260 Ark. 250, 539 S.W.2d 435, reversed and remanded.
Harold L. Hall, Little Rock, Ark., for petitioners.
Joseph H. Purvis, Little Rock, Ark., for respondent, pro hac vice, by special leave of Court.
Mr. Chief Justice BURGER delivered the opinion of the Court.
1
Petitioners, codefendants at trial, made timely motions for appointment of separate counsel, based on the representations of their appointed counsel that, because of confidential information received from the codefendants, he was confronted with the risk of representing conflicting interests and could not, therefore, provide effective assistance for each client. We granted certiorari to decide whether petitioners were deprived of the effective assistance of counsel by the denial of those motions. 430 U.S. 965, 97 S.Ct. 1643, 52 L.Ed.2d 355 (1977).
2
* Early in the morning of June 1, 1975, three men entered a Little Rock, Ark., restaurant and robbed and terrorized the five employees of the restaurant. During the course of the robbery, one of the two female employees was raped once; the other, twice. The ensuing police investigation led to the arrests of the petitioners.
3
On July 29, 1975, the three defendants were each charged with one count of robbery and two counts of rape. On August 5, the trial court appointed Harold Hall, a public de ender, to represent all three defendants. Petitioners were then arraigned and pleaded not guilty. Two days later, their cases were set for a consolidated trial to commence September 4.
4
On August 13 Hall moved the court to appoint separate counsel for each petitioner because "the defendants ha[d] stated to him that there is a possibility of a conflict of interest in each of their cases . . .." After conducting a hearing on this motion, and on petitioners' motions for a severance, the court declined to appoint separate counsel.1
5
Before trial, the same judge who later presided at petitioners' trial conducted a Jackson v. Denno hearing2 to determine the admissibility of a confession purportedly made by petitioner Campbell to two police officers at the time of his arrest. The essence of the confession was that Campbell had entered the restaurant with his codefendants and had remained, armed with a rifle, one flight of stairs above the site of the robbery and rapes (apparently serving as a lookout), but had not taken part in the rapes. The trial judge ruled the confession admissible, but ordered deletion of the references to Campbell's codefendants. At trial one of the arresting officers testified to Campbell's confession.
6
On September 4, before the jury was empaneled, Hall renewed the motion for appointment of separate counsel "on the grounds that one or two of the defendants may testify and if they do, then I will not be able to cross-examine them because I have received confidential information from them." The court responded, "I don't know why you wouldn't," and again denied the motion.3
7
The prosecution then proceeded to present its case. The manager of the restaurant identified petitioners Holloway and Campbell as two of the robbers. Another male employee identified Holloway and petitioner Welch. A third identified only Holloway. The victim of the single rape identified Holloway and Welch as two of the robbers but was unable to identify the man who raped her. The victim of the double rape identified Holloway as the first rapist. She was unable to identify the second rapist but identified Campbell as one of the robbers.
8
On the second day of trial, after the prosecution had rested its case, Hall advised the court that, against his recommendation, all three defendants had decided to testify. He then stated:
9
"Now, since I have been appointed, I had previously filed a motion asking the Court to appoint a separate attorney for each defendant because of a possible conflict of interest. This conflict will probably be now coming up since each one of them wants to testify.
10
"THE COURT: That's all right; let them testify. There is no conflict of interest. Every time I try more than one person in this court each one blames it on the other one.
11
"MR. HALL: I have talked to each one of these defendants, and I have talked to them individually, not collectively.
12
"THE COURT: Now talk to them collectively."
13
The court then indicated satisfaction that each petitioner understood the nature and consequences of his right to testify on his own behalf, whereupon Hall observed:
14
"I am in a position now where I am more or less muzzled as to any cross-examination.
15
"THE COURT: You have no right to cross-examine your own witness.
16
"MR. HALL: Or to examine them.
17
"THE COURT: You have a right to examine them, but have no righ to cross-examine them. The prosecuting attorney does that.
18
"MR. HALL: If one [defendant] takes the stand, somebody needs to protect the other two's interest while that one is testifying, and I can't do that since I have talked to each one individually.
19
"THE COURT: Well, you have talked to them, I assume, individually and collectively, too. They all say they want to testify. I think it's perfectly alright [sic ] for them to testify if they want to, or not. It's their business.
20
* * * * *
21
"Each defendant said he wants to testify, and there will be no cross-examination of these witnesses, just a direct examination by you.
22
"MR. HALL: Your Honor, I can't even put them on direct examination because if I ask them— "THE COURT: (Interposing) You can just put them on the stand and tell the Court that you have advised them of their rights and they want to testify; then you tell the man to go ahead and relate what he wants to. That's all you need to do."4
23
Holloway then took the stand on his own behalf, testifying that during the time described as the time of the robbery he was at his brother's home. His brother had previously given similar testimony. When Welch took the witness stand, the record shows Hall advised him, as he had Holloway, that "I cannot ask you any questions that might tend to incriminate any one of the three of you . . .. Now, the only thing I can say is tell these ladies and gentlemen of the jury what you know about this case . . .." Welch responded that he did not "have any kind of speech ready for the jury or anything. I thought I was going to be questioned." When Welch denied, from the witness stand, that he was at the restaurant the night of the robbery, Holloway interrupted, asking:
24
"Your Honor, are we allowed to make an objection?
25
"THE COURT: No, sir. Your counsel will take care of any objections.
26
"MR. HALL: Your Honor, that is what I am trying to say. I can't cross-examine them.
27
"THE COURT: You proceed like I tell you to, Mr. Hall. You have no right to cross-examine your own witnesses anyhow."
28
Welch proceeded with his unguided direct testimony, denying any involvement in the crime and stating that he was at his home at the time it occurred. Campbell gave similar testimony when he took the stand. He also denied making any confession to the arresting officers.
29
The jury rejected the versions of events presented by the three defendants and the alibi witness, and returned guilty verdicts on all counts. On appeal to the Arkansas Supreme Court, petitioners raised the claim that their representation by a single appointed attorney, over their objection, violated federal constitutional guarantees of effective assistance of counsel. In resolving this issue, the court relied on what it characterized as the majority rule:
30
"[T]he record must show some material basis for an alleged conflict of interest, before reversible error occurs in single representation of co-defendants." 260 Ark. 250, 256, 539 S.W.2d 435, 439 (1977).
31
Turning to the record in the case, the court observed that Hall had failed to outline to the trial court both the nature of the confidential information received from his clients and the manner in which knowledge of that information created conflicting loyalties. Because none of the petitioners had incriminated codefendants while testifying, the court concluded that the record demonstrated no actual conflict of interests or prejudice to the petitioners, and therefore affirmed.
II
32
More than 35 years ago, in Glasser v. United States, 315 U.S. 60, 62 S.Ct. 457, 86 L.Ed. 680 (1942), this Court held that by requiring an attorney to represent two codefendants whose interests were in conflict the District Court had denied one of the defendants his Sixth Amendment right to the effective assistance of counsel. In that case the Government tried five codefendants in a joint trial for conspiracy to defraud the United States. Two of the defendants, Glasser and Kretske, were represented initially by separate counsel. On the second day of trial, however, Kretske became dissatisfied with his attorney and dismissed him. The District Judge thereupon asked Glasser's attorney, Stewart, if he would also represent Kretske. Stewart responded by noting a possible conflict of interests: His representation of both Glasser and Kretske might lead the jury to link the two men together. Glasser also made known that he objected to the proposal. The District Court nevertheless appointed Stewart, who continued as Glasser's retained counsel, to represent Kretske. Both men were convicted.
33
Glasser contended in this Court that Stewart's representation at trial was ineffective because of a conflict between the interests of his two clients. This Court held that "the 'Assistance of Counsel' guaranteed by the Sixth Amendment contemplates that such assistance be untrammeled and unimpaired by a court order requiring that one lawyer should simultaneously represent conflicting interests." Id., at 70, 62 S.Ct., at 465. The record disclosed that Stewart failed to cross-examine a Government witness whose testimony linked Glasser with the conspiracy and failed to object to the admission of arguably inadmissible evidence. This failure was viewed by the Court as a result of Stewart's desire to protect Kretske's interests, and was thus "indicative of Stewart's struggle to serve two masters . . .." Id., at 75, 62 S.Ct., at 467. After identifying this conflict of interests, the Court declined to inquire whether the prejudice flowing from it was harmless and instead ordered Glasser's conviction reversed. Kretske's conviction, however, was affirmed.
34
One principle applicable here emerges from Glasser without ambiguity. Requiring or permitting a single attorney to represent codefendants, often referred to as joint representation, is not per se violative of constitutional guarantees of effective assistance of counsel. This principle recognizes that in some cases multiple defendants can appropriately be represented by one attorney; indeed, in some cases, certain advantages might accrue from joint representation. In Mr. Justice Frankfurter's view: "Joint representation is a means of insuring against reciprocal recrimination. A common defense often gives strength against a common attack." Glasser v. United States, supra, at 92, 62 S.Ct., at 475 (dissenting opinion).5
35
Since Glasser was decided, however, the courts have taken divergent approaches to two issues commonly raised in challenges to joint representation where—unlike this case—trial counsel did nothing to advise the trial court of the actuality or possibility of a conflict between his several clients' interests. First, appellate courts have differed on how strong a showing of conflict must be made, or how certain the reviewing court must be that the asserted conflict existed, before it will conclude that the defendants were deprived of their right to the effective assistance of counsel. Compare United States ex rel. Hart v. Davenport, 478 F.2d 203 (CA3 1973); Lollar v. United States, 126 U.S.App.D.C. 200, 376 F.2d 243 (1967); People v. Chacon, 69 Cal.2d 765, 73 Cal.Rptr. 10, 447 P.2d 106 (1968); and State v. Kennedy, 8 Wash.App. 633, 508 P.2d 1386 (1973), with United States v. Lovano, 420 F.2d 769, 773 (CA2 1970); see also cases collected in Annot., 34 A.L.R.3d 470, 477-507 (1970). Second, courts have differed with respect to the scope and nature of the affirmative duty of the trial judge to assure that criminal defendants are not deprived of their right to the effective assistance of counsel by joint representation of conflicting interests. Compare United States v. Lawriw, 568 F.2d 98 (CA8 1977); United States v. Carrigan, 543 F.2d 1053 (CA2 1976); and United States v. Foster, 469 F.2d 1 (CA1 1972), with Foxworth v. Wainwright, 516 F.2d 1072 (CA5 1975), and United States v. Williams, 429 F.2d 158 (CA8 1970).6 We need not resolve these two issues in this case, however. Here trial counsel, by the pretrial motions of August 13 and September 4 and by his accompanying representations, made as an officer of the court, focused explicitly on the probable risk of a conflict of interests. The judge then failed either to appoint separate counsel or to take adequate steps to ascertain whether the risk was too remote to warrant separate counsel.7 We hold that the failure, in the face of the representations made by counsel weeks before trial and again before the jury was empaneled, deprived petitioners of the guarantee of "assistance of counsel."
36
This conclusion is supported by the Court's reasoning in Glasser :
37
"Upon the trial judge rests the duty of seeing that the trial is conducted with solicitude for the essential rights of the accused. . . . The trial court should protect the right of an accused to have the assistance of counsel. . . .
38
* * * * *
39
"Of equal importance with the duty of the court to see that an accused has the assistance of counsel is its duty to refrain from embarrassing counsel in the defense of an accused by insisting, or indeed, even suggesting, that counsel undertake to concurrently represent interests which might diverge from those of his first client, when the possibility of that divergence is brought home to the court." 315 U.S., at 71, 76, 62 S.Ct., at 465, 467 (emphasis added).
40
This reasoning has direct applicability in this case where the "possibility of [petitioners'] inconsistent interests" was "brought home to the court" by formal objections, motions, and defense counsel's representations. It is arguable, perhaps, that defense counsel might have presented the requests for appointment of separate counsel more vigorously and in great r detail. As to the former, however, the trial court's responses hardly encouraged pursuit of the separate-counsel claim; and as to presenting the basis for that claim in more detail, defense counsel was confronted with a risk of violating, by more disclosure, his duty of confidentiality to his clients.
41
Additionally, since the decision in Glasser, most courts have held that an attorney's request for the appointment of separate counsel, based on his representations as an officer of the court regarding a conflict of interests, should be granted. See, e. g., Shuttle v. Smith, 296 F.Supp. 1315 (Vt.1969); State v. Davis, 110 Ariz. 29, 514 P.2d 1025 (1973); State v. Brazile, 226 La. 254, 75 So.2d 856 (1954); but see Commonwealth v. LaFleur, 1 Mass.App. 327, 296 N.E.2d 517 (1973). In so holding, the courts have acknowledged and given effect to several interrelated considerations. An "attorney representing two defendants in a criminal matter is in the best position professionally and ethically to determine when a conflict of interest exists or will probably develop in the course of a trial." State v. Davis, supra, at 31, 514 P.2d, at 1027. Second, defense attorneys have the obligation, upon discovering a conflict of interests, to advise the court at once of the problem. Ibid.8 Finally, attorneys are officers of the court, and " 'when they address the judge solemnly upon a matter before the court, their declarations are virtually made under oath.' " State v. Brazile, supra, at 266, 75 So.2d, at 860-861.9 (Emphasis deleted.) We find these considerations persuasive.
42
The State argues, however, that to credit Hall's representations to the trial court would be tantamount to transferring to defense counsel the authority of the trial judge to rule on the existence or risk of a conflict and to appoint separate counsel. In the State's view, the ultimate decision on those matters must remain with the trial judge; otherwise unscrupulous defense attorneys might abuse their "authority," presumably for purposes of delay or obstruction of the orderly conduct of the trial.10
43
The State has an obvious interest in avoiding such abuses. But our holding does not undermine that interest. When an untimely motion for separate counsel is made for dilatory purposes, our holding does not impair the trial court's ability to deal with counsel who resort to such tactics. Cf. United States v. Dardi, 330 F.2d 316 (CA2), cert. denied, 379 U.S. 845, 85 S.Ct. 50, 13 L.Ed.2d 50 (1964); People v. Kroeger, 61 Cal.2d 236, 37 Cal.Rptr. 593, 390 P.2d 369 (1964). Nor does our holding preclude a trial court from exploring the adequacy of the basis of defense counsel's representations regarding a conflict of interests without improperly requiring disclosure of the confidential communications of the client.11 See State v. Davis, supra. In this case the trial court simply failed to take adequate steps in response to the repeated motions, objections, and representations made to it, and no prospect of dilatory practices was present to justify that failure.
III
44
The issue remains whether the error committed at petitioners' trial requires reversal of their convictions. It has generally been assumed that Glasser requires reversal, even in the absence of a showing of specific prejudice to the complaining codefendant, whenever a trial court improperly permits or requires joint representation. See Austin v. Erickson, 477 F.2d 620 (CA8 1973); United States v. Gougis, 374 F.2d 758 (CA7 1967); Hall v. State, 63 Wis.2d 304, 217 N.W.2d 352 (1974); Commonwealth ex rel. Whitling v. Russell, 406 Pa. 45, 176 A.2d 641 (1962); Note, Criminal Codefendants and the Sixth Amendment: The Case for Separate Counsel, 58 Geo.L.J. 369, 387 (1969). Some courts and commentators have argued, however, that appellate courts should not reverse automatically in such cases but rather should affirm unless the defendant can demonstrate prejudice. See United States v. Woods, 544 F.2d 242 (CA6 1976), cert. denied, 430 U.S. 969, 97 S.Ct. 1652, 52 L.Ed.2d 361 (1977); Geer, Representation of Multiple Criminal Defendants: Conflicts of Interest and the Professional Responsibilities of the Defense Attorney, 62 Minn.L.Rev. 119, 122-125 (1978). This argument rests on two aspects of the Court's decision in Glasser. First, although it had concluded that Stewart was forced to represent conflicting interests, the Court did not reverse the conviction of Kretske, Stewart's other client, because Kretske failed to "show that the denial of Glasser's constitutional rights prejudiced [him] in some manner." 315 U.S., at 76, 62 S.Ct., at 468 (emphasis added). Second, the Court justified the reversal of Glasser's conviction, in part, by emphasizing the weakness of the Government's evidence against him; with guilt a close question, "error, which under some circumstances would not be ground for reversal, cannot be brushed aside as immaterial, since there is a real chance that it might have provided the slight impetus which swung the scales toward guilt." Id., at 67, 62 S.Ct., at 463 (emphasis added). Assessing the strength of the prosecution's evidence against the defendant is, of course, one step in applying a harmless-error standard. See Schneble v. Florida, 405 U.S. 427, 92 S.Ct. 1056, 31 L.Ed. 340 (1972); Harrington v. California, 395 U.S. 250, 89 S.Ct. 1726, 23 L.Ed.2d 284 (1969).
45
We read the Court's opinion in Glasser, however, as holding that whenever a trial court improperly requires joint representation over timely objection reversal is automatic. The Glasser Court stated:
46
"To determine the precise degree of prejudice sustained by Glasser as a result of the [district] court's appointment of Stewart as counsel for Kretske is at once difficult and unnecessary. The right to have the assistance of counsel is too fundamental and absolute to allow courts to indulge in nice calculations as to the amount of prejudice arising from its denial. Cf. Snyder v. Massachusetts, 291 U.S. 97, 116, 54 S.Ct. 330, 78 L.Ed. 674; Tumey v. Ohio, 273 U.S. 510, 535, 47 S.Ct. 437, 71 L.Ed. 749; Patton v. United States, 281 U.S. 276, 292, 50 S.Ct. 253, 74 L.Ed. 854." 315 U.S., at 75-76, 62 S.Ct., at 467.
47
This language presupposes that the joint representation, over his express objections, prejudiced the accused in some degree. But from the cases cited it is clear that the prejudice is presumed regardless of whether it was independently shown. Tumey v. Ohio, 273 U.S. 510, 47 S.Ct. 437, 71 L.Ed. 749 (1927), for example, stands for the principle that "[a] conviction must be reversed if [the asserted trial error occurred], even if no particular prejudice is shown and even if the defendant was clearly guilty." Chapman v. California, 386 U.S. 18, 43, 87 S.Ct. 824, 837, 17 L.Ed.2d 705 (1967) (Stewart, J., concurring); see also id., at 23, and n. 8, 87 S.Ct., at 827 (opinion of the Court). The Court's refusal to reverse Kretske's conviction is not contrary to this interpretation of Glasser. Kretske did not raise his own Sixth Amendment challenge to the joint representation. 315 U.S., at 77, 62 S.Ct., at 468; see Brief for Petitioner Kretske in Glasser v. United States, O.T. 1941, No. 31. As the Court's opinion indicates, some of the codefendants argued that the denial of Glasser's right to the effective assistance of counsel prejudiced them as alleged co-conspirators. 315 U.S., at 76-77, 62 S.Ct., at 467. In that context, the Court required a showing of prejudice; finding none, it affirmed the convictions of the codefendants, including Kretske.
48
Moreover, this Court has concluded that the assistance of counsel is among those "constitutional rights so basic to a fair trial that their infraction can never be treated as harmless error." Chapman v. California, supra, at 23, 87 S.Ct., at 827. Accordingly, when a defendant is deprived of the presence and assistance of his attorney, either throughout the prosecution or during a critical stage in, at least, the prosecution of a capital offense, reversal is automatic. Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963); Hamilton v. Alabama, 368 U.S. 52, 82 S.Ct. 157, 7 L.Ed.2d 114 (1961); White v. Maryland, 373 U.S. 59, 83 S.Ct. 1050, 10 L.Ed.2d 193 (1963).
49
That an attorney representing multiple defendants with conflicting interests is physically present at pretrial proceedings, during trial, and at sentencing does not warrant departure from this general rule. Joint representation of conflicting interests is suspect because of what it tends to prevent the attorney from doing. For example, in this case it may well have precluded defense counsel for Campbell from exploring possible plea negotiations and the possibility of an agreement to testify for the prosecution, provided a lesser charge or a favorable sentencing recommendation would be acceptable. Generally speaking, a conflict may also prevent an attorney from challenging the admission of evidence prejudicial to one client but perhaps favorable to another, or from arguing at the sentencing hearing the relative involvement and culpability of his clients in order to minimize the culpability of one by emphasizing that of another. Examples can be readily multiplied. The mere physical presence of an attorney does not fulfill the Sixth Amendment guarantee when the advocate's conflicting obligations have effectively sealed his lips on crucial matters.
50
Finally, a rule requiring a defendant to show that a conflict of interests—which he and his counsel tried to avoid by timely objections to the joint representation—prejudiced him in some specific fashion would not be susceptible of intelligent, evenhanded application. In the normal case where a harmless-error rule is applied, the error occurs at trial and its scope is readily identifiable. Accordingly, the reviewing court can undertake with some confidence its relatively narrow task of assessing the likelihood that the error materially affected the deliberations of the jury. Compare Chapman v. California, supra, at 24-26, 87 S.Ct., at 828-829, with Hamling v. United States, 418 U.S. 87, 108, 94 S.Ct. 2887, 2902, 41 L.Ed.2d 590 (1974), and Unite States v. Valle-Valdez, 554 F.2d 911, 914-917 (CA9 1977). But in a case of joint representation of conflicting interests the evil—it bears repeating—is in what the advocate finds himself compelled to refrain from doing, not only at trial but also as to possible pretrial plea negotiations and in the sentencing process. It may be possible in some cases to identify from the record the prejudice resulting from an attorney's failure to undertake certain trial tasks, but even with a record of the sentencing hearing available it would be difficult to judge intelligently the impact of a conflict on the attorney's representation of a client. And to assess the impact of a conflict of interests on the attorney's options, tactics, and decisions in plea negotiations would be virtually impossible. Thus, an inquiry into a claim of harmless error here would require, unlike most cases, unguided speculation.
51
Accordingly, we reverse and remand for further proceedings not inconsistent with this opinion.
52
It is so ordered.
53
Mr. Justice POWELL with whom Mr. Justice BLACKMUN and Mr. Justice REHNQUIST join, dissenting.
54
While disavowing a per se rule of separate representation, the Court holds today that the trial judge's failure in this case "either to appoint separate counsel or take adequate steps to ascertain whether the risk was too remote to warrant separate counsel" worked a violation of the guarantee of "assistance of counsel" embodied in the Sixth and Fourteenth Amendments. The Court accepts defense counsel's representations of a possible conflict of interests among his clients and of his inability to conduct effective cross-examination as being adequate to trigger the trial court's duty of inquiry. The trial court should have held an appropriate hearing on defense counsel's motions for separate representation, but our task is to decide whether this omission assumes the proportion of a constitutional violation. Because I cannot agree that, in the particular circumstances of this case, the court's failure to inquire requires reversal of petitioners' convictions, and because the Court's opinion contains seeds of a per se rule of separate representation merely upon the demand of defense counsel, I respectfully dissent.
55
* It is useful to contrast today's decision with the Court's most relevant previous ruling, Glasser v. United States, 315 U.S. 60, 62 S.Ct. 457, 86 L.Ed. 680 (1942). In that case, the trial court ordered Glasser's retained lawyer, Stewart, to represent both Glasser and his codefendant, Kretske, even though Stewart had identified "inconsistency in the defense" that counseled against joint representation. Id., at 68, 62 S.Ct., at 464. This Court reversed Glasser's conviction because his lawyer had been required to undertake simultaneous representation of "conflicting interests." Id., at 70, 62 S.Ct., at 464. The Glasser decision did not rest only on the determination that "[t]he possibility of the inconsistent interests of Glasser and Kretske [had been] brought home to the court . . . ." Id., at 71, 62 S.Ct., at 465. Instead, the Court proceeded to find record support for Glasser's claim of "impairment" of his Sixth Amendment right to assistance of counsel. The evidence "indicative of Stewart's struggle to serve two masters [could not] seriously be doubted." Id., at 75, 62 S.Ct., at 467; see also id., at 76, 62 S.Ct., at 467.
56
Today's decision goes well beyond the limits of Glasser. I agree that the representations made by defense counsel in this case, while not as informative as the affidavit of counsel Stewart in Glasser, were sufficient to bring into play the trial court's duty to inquire further into the possibility of "conflicting interests." I question, however, whether the Constitution is violated simply by the failure to conduct that inquiry, without any additional determination that the record reveals a case of joint representation in the face of "con licting interests." The Court's approach in this case is not premised on an ultimate finding of conflict of interest or ineffective assistance of counsel. Rather, it presumes prejudice from the failure to conduct an inquiry, equating that failure with a violation of the Sixth Amendment guarantee. The justification for this approach appears to be the difficulty of a post hoc reconstruction of the record to determine whether a different outcome, or even a different defense strategy, might have obtained had the trial court engaged in the requisite inquiry and ordered separate representation. Although such difficulty may be taken into account in the allocation of the burden of persuasion on the questions of conflict and prejudice, see infra, at 1184-1185, I am not convinced of the need for a prophylactic gloss on the requirements of the Constitution in this area of criminal law. Cf. Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).
57
Several other aspects of the Court's opinion suggest a rule of separate representation upon demand of defense counsel. The Court leaves little room for maneuver for a trial judge who seeks to inquire into the substantiality of the defense counsel's representations. Apparently, the trial judge must order separate representation unless the asserted risk of conflict "was too remote to warrant separate counsel," ante, at 484, a formulation that suggests a minimal showing on the part of defense counsel. The Court also offers the view that defense counsel in this case could not be expected to make the kind of specific proffer that was present in Glasser because of "a risk of violating, by more disclosure, his duty of confidentiality to his clients." Ante, at 485. Although concededly not necessary to a decision in this case, the Court then states that the trial court's inquiry must be conducted "without improperly requiring disclosure of the confidential communications of the client." Ante, at 487, and n. 11.1 When these intimations are coupled with the Court's policy of automatic reversal, see ante, at 488-489, the path may have been cleared for potentially disruptive demands for separate counsel predicated solely on the representations of defense counsel.
II
58
Recognition of the limits of this Court's role in adding protective layers to the requirements of the Constitution does not detract from the Sixth Amendment obligation to provide separate counsel upon a showing of reasonable probability of need. In my view, a proper accommodation of the interests of defendants in securing effective assistance of counsel and that of the State in avoiding the delay, potential for disruption, and costs inherent in the appointment of multiple counsel,2 can be achieved by means which sweep less broadly than the approach taken by the Court. I would follow the lead of the several Courts of Appeals that have recognized the trial court's duty of inquiry in joint representation cases without minimizing the constitutional predicate of "conflicting interests."3
59
Ordinarily defense counsel has the obligation to raise objections to joint representation as early as possible before the commencement of the trial.4 When such a motion is made, supported by a satisfactory proffer, the trial court is under a duty to conduct "the most careful inquiry to satisfy itself that no conflict of interest would be likely to result and that the parties involved had no valid objection." United States v. DeBerry, 487 F.2d 448, 453 (CA2 1973). At that hearing, the burden is on defense counsel, because his clients are in possession of the relevant facts, to make a showing of a reasonable likelihood of conflict or prejudice. Upon such a showing, separate counsel should be appointed. "If the court has carried out this duty of inquiry, then to the extent a defendant later attacks his conviction on grounds of conflict of interest arising from joint representation he will bear a heavy burden indeed of persuading" the reviewing court "that he was, for that reason, deprived of a fair trial." United States v. Foster, 469 F.2d 1, 5 (CA1 1972). If, however, a proper and timely motion is made, and no hearing is held, "the lack of satisfactory judicial inquiry shifts the burden of proof on the question of prejudice to the Government." United States v. Carrigan, 543 F.2d 1053, 1056 (CA2 1976).
60
Since the trial judge in this case failed to inquire into the substantiality of defense counsel's representations of September 4, 1975, ante, at 484 n. 7, the burden shifted to the State to establish the improbability of conflict or prejudice. I agree that the State's burden is not met simply by the assertion that the defenses of petitioners were not mutually inconsistent, for that is not an infrequent consequence of improper joint representation. Nevertheless, the record must offer some basis for a reasonable inference that "conflicting interests" hampered a potentially effective defense. See, e. g., United States v. Donahue, 560 F.2d 1039, 1044-1045 (CA1 1977). Because the State has demonstrated that such a basis cannot be found in the record of this case,5 I would affirm the judgment of the Supreme Court of Arkansas.
1
No transcript of this hearing is included in the record, and we are not informed whether the hearing was transcribed.
2
See Jackson v. Denno, 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908 (1964).
3
It is probable that the judge's response, "I don't know why you wouldn't," referred back to counsel's statement, "I will not be able to cross-examine them . . .." If the response is so read, the judge's later statements, see infra, at 479 and 480, are directly contradictory.
4
The record reveals that both the trial court and defense counsel were alert to defense counsel's obligation to avoid assisting in the presentation of what counsel had reason to believe was false testimony, or, at least, testimony contrary to the version of facts given to him earlier and in confidence. Cf. ABA Project on Standards Relating to the Administration of Criminal Justice, The Defense Function § 7.7(c) p. 133 (1974).
5
By inquiring in Glasser whether there had been a waiver, the Court also confirmed that a defendant may waive his right to the assistance of an attorney unhindered by a conflict of interests. 315 U.S., at 70, 62 S.Ct., at 464. In this case, however, Arkansas does not contend that petitioners waived that right.
6
See ABA Project on Standards Relating to the Administration of Criminal Justice, The Function of the Trial Judge § 3.4(b), p. 171 (1974):
"Whenever two or more defendants who have been jointly charged, or whose cases have been consolidated, are represented by the same attorney, the trial judge should inquire into potential conflicts which may jeopardize the right of each defendant to the fidelity of his counsel."
7
There is no indication in the record, and the State does not suggest, that the hearing held in response to the motion of August 13 disclosed information demonstrating the insubstantiality of Hall's September 4 representations—based, as nearly as can be ascertained, on the codefendants' newly formed decision to testify respecting a probable conflict of interests. So far as we can tell from this record, the trial judge cut off any opportunity of defense counsel to do more than make conclusory representations. During oral argument in this Court, Hall represented that the trial court did not request him to disclose the basis for his representations as to a conflict of interests. See Tr. of Oral Arg. 14-15.
There is no occasion in this case to determine the constitutional significance, if any, of the trial court's response to petitioners' midtrial objections.
8
The American Bar Association in its Standards Relating to the Administration of Criminal Justice, The Defense Function § 3.5(b), p. 123 (1974) cautions:
"Except for preliminary matters such as initial hearings or applications for bail, a lawyer or lawyers who are associated in practice should not undertake to defend more than one defendant in the same criminal case if the duty to one of the defendants may conflict with the duty to another. The potential for conflict of interest in representing multiple defendants is so grave that ordinarily a lawyer should decline to act for more than one of several co-defendants except in unusual situations when, after careful investigation, it is clear that no conflict is likely to develop and when the several defendants give an informed consent to such multiple representation."
9
When a considered representation regarding a conflict in clients' interests comes from an officer of the court, it should be given the weight commensurate with the grave penalties risked for misrepresentation.
10
Such risks are undoubtedly present; they are inherent in the adversary system. But courts have abundant power to deal with attorneys who misrepresent facts.
11
This case does not require an inquiry into the extent of a court's power to compel an attorney to disclose confidential communications that he concludes would be damaging to his client. Cf. ABA Code of Professional Responsibility, DR 4-101(C)(2) (1969). Such compelled disclosure creates significant risks of unfair prejudice, especially when the disclosure is to a judge who may be called upon later to impose sentences on the attorney's clients.
1
I do not propose to resolve here the tension between the assertion of a constitutional right and a claim of lawyer-client privilege. But I reject the assumption that defense counsel will be unable to discuss in concrete terms the difficulties of joint representation in a particular case without betraying confidential communications. Nor am I persuaded that the courts will be unable to pursue a meaningful inquiry without insisting on a breach of confidentiality. Experience in the somewhat analogous area of claims of exemption from the disclosure requirements of the Freedom of Information Act, 5 U.S.C. § 552 (1976 ed.), supports this point. See, e. g., EPA v. Mink, 410 U.S. 73, 92-94, 93 S.Ct. 827, 839, 35 L.Ed.2d 119 (1973); Vaughn v. Rosen, 157 U.S.App.D.C. 340, 484 F.2d 820 (1973), cert. denied, 415 U.S. 977, 94 S.Ct. 1564, 39 L.Ed.2d 873 (1974).
2
Each addition of a lawyer in the trial of m ltiple defendants presents increased opportunities for delay in setting the trial date, in disposing of pretrial motions, in selecting the jury, and in the conduct of the trial itself. Additional lawyers also may tend to enhance the possibility of trial errors. Moreover, in light of professional canons of ethics, cf. ABA Code of Professional Responsibility, DR 5-105(D) (1969); Allen v. District Court, 184 Colo. 202, 205-206, 519 P.2d 351, 353 (1974); Tr. of Oral Arg. 6-7, 15-16, a rule requiring separate counsel virtually upon demand may disrupt the operation of public defender offices.
3
See, e. g., United States v. Carrigan, 543 F.2d 1053, 1055-1056 (CA2 1976):
"The mere representation of two or more defendants by a single attorney does not automatically give rise to a constitutional deprivation of counsel. It is settled in this Circuit that some specific instance of prejudice, some real conflict of interest, resulting from a joint representation must be shown to exist before it can be said that an appellant has been denied the effective assistance of counsel. United States v. Mari, . . . 526 F.2d [117,] at 119 [(CA2 1975)]; United States v. Vowteras, 500 F.2d 1210, 1211 (2d Cir.), cert. denied, 419 U.S. 1069, 95 S.Ct. 656, 42 L.Ed.2d 665 (1974); United States v. Wisniewski, 478 F.2d 274, 281 (2d Cir. 1973); United States v. Lovano, 420 F.2d 769, 773 (2d Cir.), cert. denied, 397 U.S. 1071, 90 S.Ct. 1515, 25 L.Ed.2d 694 (1970). In all of these cases the trial court had carefully inquired as to the possibility of prejudice and elicited the personal responses of the defendants involved. Here the record is barren of any inquiry by the court or any concern by the Government.
"In United States v. DeBerry, supra, 487 F.2d, at 453-54, we . . . noted with approval the view of the First Circuit in United States v. Foster, 469 F.2d 1, 5 (1st Cir. 1972), that the lack of satisfactory judicial inquiry shifts the burden of proof on the question of prejudice to the Government. 487 F.2d at 453 n. 6."
4
Since a proper, timely objection was interposed in this case, there is no occasion to identify the circumstances which might trigger a duty of inquiry in the absence of such a motion.
Of course, a later motion may be appropriate if the conflict is not known or does not become apparent before trial proceeds. To guard against strategic disruption of the trial, however, the court may require a substantial showing of justification for such midtrial motions.
5
It is unlikely that separate counsel would have been able to develop an independent defense in this case because of the degree of overlap in the identification testimony by the State's witnesses and because of the consistency of the alibis advanced by petitioners. Campbell and Welch, who are half brothers, both used the same alibi. Since Campbell was not identified as an actual participant in the rapes, it might be argued that separate counsel would have encouraged him to endorse his earlier confession in an effort to show that he was less culpable than his two codefendants. But, given his common alibi with Welch, Campbell would have found it difficult to extricate himself from his half brother's cause. In any event, such an argument would have been an appeal to jury nullification because, as the court below noted, Campbell's denial of direct involvement in the rapes "had no effect on his guilt as a principal." 260 Ark. 250, 256, 539 S.W.2d 435, 439 (1976). Conceivably Holloway, who gave an independent alibi, might have wished to argue that while the State had apprehended two of the real culprits, his arrest was due to a mistaken identification. It is most unlikely that separate counsel would have succeeded on such a tack because each witness who identified Holloway also identified one of the other two codefendants. Moreover, petitioners do not argue in this Court that joint representation impeded effective cross-examination of the State's witnesses. In sum, this is not a case where an inquiry into the possibility of "conflicting interests" reasonably might have revealed a basis for separate representation.
| 12
|
435 U.S. 559
98 S.Ct. 1596
56 L.Ed.2d 547
Maurice PROCTORv.WARDEN, MARYLAND PENITENTIARY
No. 77-5898
Supreme Court of the United States
April 17, 1978
On petition for writ of certiorari to the United States Court of Appeals for the Fourth Circuit.
PER CURIAM.
1
A Federal District Court entered a final order denying the petitioner habeas corpus relief. Under federal law the petitioner had a statutory right to appellate review of that decision. 28 U.S.C. § 2253. Because it appears that effective appellate review may not have been accorded in this case, the writ of certiorari is granted, and the case is remanded to the Court of Appeals for the Fourth Circuit.
2
The petitioner pleaded guilty to narcotics and firearms violations in the Criminal Court of Baltimore City and was sentenced to a term of 20 years in the Maryland state penitentiary. In 1975, after exhausting state post-conviction remedies, he filed a petition for a writ of habeas corpus in the United States District Court for the District of Maryland, alleging that several specific constitutional violations had occurred in the state prosecution. The District Court dismissed the petition without an evidentiary hearing. The petitioner, pro se, took an appeal to the Court of Appeals, which affirmed the order of the District Court in the following language:
3
"PER CURIAM:
4
"A review of the record and of the district court's opinion discloses that this appeal from the order of the district court denying relief under 42 U.S.C. § 1983 is without merit. Accordingly, the order is affirmed for the reasons stated by the district court. Blizzard v. Mahan, C/A No. 76-0117-CRT (E.D.N.C., Sept. 13, 1976).
"AFFIRMED."
5
Clearly, this per curiam order has nothing whatsoever to do with the petitioner's case. He had filed a petition for a writ of habeas corpus, not a civil rights action under 42 U.S.C. § 1983. He had sought relief in a federal court in Maryland, not one in North Carolina. The case of Blizzard v. Mahan, in short, is wholly unrelated to the petitioner's case.*
6
It may be that the petitioner's contentions are wholly frivolous. But it is not enough that a just result may have been reached. "[T]o perform its high function in the best way 'justice must satisfy the appearance of justice.' Offutt v. United States, 348 U.S. 11, 14, 75 S.Ct. 11, 99 L.Ed. 11." In re Murchison, 349 U.S. 133, 136, 75 S.Ct. 623, 99 L.Ed. 942 (1955); cf. In re Gault, 387 U.S. 1, 26, 87 S.Ct. 1428, 18 L.Ed.2d 527 (1967). Accordingly, in the exercise of our power to "require such further proceedings to be had as may be just under the circumstances," 28 U.S.C. § 2106, we grant the motion for leave to proceed in forma pauperis and the petition for certiorari, vacate the judgment of the Court of Appeals, and remand this case to it for further consideration.
7
It is so ordered.
*
The petition for certiorari in No. 77-939, Blizzard v. Mahan (denied, 435 U.S. 951, 98 S.Ct. 1576, 55 L.Ed.2d 800), shows that the Court of Appeals' per curiam order in that case (filed on the same day as the order in the present case) is identical to the one quoted in the text above.
| 89
|
435 U.S. 589
98 S.Ct. 1306
55 L.Ed.2d 570
Richard NIXON, Petitioner,v.WARNER COMMUNICATIONS, INC., et al.
No. 76-944.
Argued Nov. 8, 1977.
Decided April 18, 1978.
Syllabus
During the criminal trial of several of petitioner ex-President's former advisers on charges, inter alia, of conspiring to obstruct justice in connection with the so-called Watergate investigation, some 22 hours of tape recordings made of conversations in petitioner's offices in the White House and Executive Office Building were played to the jury and the public in the courtroom, and the reels of the tapes were admitted into evidence. The District Court furnished the jurors, reporters, and members of the public in attendance with transcripts, which were not admitted as evidence but were widely reprinted in the press. At the close of the trial, in which four of the defendants were convicted, and after an earlier unsuccessful attempt over petitioner's objections to obtain court permission to copy, broadcast, and sell to the public portions of the tapes, respondent broadcasters petitioned for immediate access to the tapes. The District Court denied the petitions on the grounds that since the convicted defendants had filed notices of appeal, their rights would be prejudiced if respondents' petitions were granted, and that since the transcripts had apprised the public of the tapes' contents, the public's "right to know" did not overcome the need to safeguard the defendants' rights on appeal. The Court of Appeals reversed, holding that the mere possibility of p ejudice to defendants' rights did not out-weigh the public's right of access, that the common-law right of access to judicial records required the District Court to release the tapes in its custody, and that therefore the District Court abused its discretion in refusing immediate access. Held:
1. Considering all the circumstances, the common-law right of access to judicial records does not authorize release of the tapes in question from the District Court's custody. Pp. 597-608.
(a) The common-law right to inspect and copy judicial records is not absolute, but the decision whether to permit access is best left to the sound discretion of the trial court, a discretion to be exercised in light of the relevant facts and circumstances of the particular case. Pp. 597-599.
(b) Because of the congressionally prescribed avenue of public access to the tapes provided by the Presidential Recordings and Materials Preservation Act, whose existence is a decisive element in the proper exercise of discretion with respect to release of the tapes, it is not necessary to weigh the parties' competing arguments for and against release as though the District Court were the only potential source of information regarding these historical materials, and the presence of an alternative means of public access tips the scales in favor of denying release. Pp. 599-608.
2. The release of the tapes is not required by the First Amendment guarantee of freedom of the press. The question here is not whether the press must be permitted access to public information to which the public generally has access, but whether the tapes, to which the public has never had physical access, must be made available for copying. There is in this case no question of a truncated flow of information to the public, as the contents of the tapes were given wide publicity by all elements of the media, Cox Broadcasting Corp. v. Cohn, 420 U.S. 469, 95 S.Ct. 1029, 43 L.Ed.2d 328, distinguished, and under the First Amendment the press has no right to information about a trial superior to that of the general public. Pp. 608-610.
3. Nor is release of the tapes required by the Sixth Amendment guarantee of a public trial. While public understanding of the highly publicized trial may remain incomplete in the absence of the ability to listen to the tapes and form judgments as to their meaning, the same could be said of a live witness' testimony, yet there is no constitutional right to have such testimony recorded and broadcast. The guarantee of a public trial confers no special benefit on the press nor does it require that the trial, or any part of it, be broadcast live or on tape to the public, but such guarantee is satisfied by the opportunity of the public and the press to attend the trial and to report what they have observed. P. 610.
179 U.S.App.D.C. 293, 551 F.2d 1252, reversed and remanded.
William H. Jeffress, Jr., Washington, D. C., for petitioner.
Floyd Abrams, New York City, and Edward Bennett Williams, Washington, D. C., for respondents.
Mr. Justice POWELL delivered the opinion of the Court.
1
This case presents the question whether the District Court for the District of Columbia should release to respondents certain tapes admitted into evidence in the trial of petitioner's former advisers. Respondents wish to copy the tapes for broadcasting and sale to the public. The Court of Appeals for the District of Columbia Circuit held that the District Court's refusal to permit immediate copying of the tapes was an abuse of discretion. United States v. Mitchell, 179 U.S.App.D.C. 293, 551 F.2d 1252 (1976). We granted certiorari, 430 U.S. 944, 97 S.Ct. 1578, 51 L.Ed.2d 791 (1977), and for the reasons that follow, we reverse.
2
* On July 16, 1973, testimony before the Senate Select Committee on Presidential Campaign Activities revealed that petitioner, then President of the United States, had maintained a system for tape recording conversations in the White House Oval Office and in his private office in the Executive Office Building. Hearings on Watergate and Related Activities Before the Senate Select Committee on Presidential Campaign Activities, 93d Cong., 1st Sess., 2074-2076 (1973). A week later, the Watergate Special Prosecutor issued a subpoena duces tecum directing petitioner to produce before a federal grand jury tape recordings of eight meetings and one telephone conversation recorded in petitioner's offices. When petitioner refused to comply with the subpoena, the District Court for the District of Columbia ordered production of the recordings. In re Subpoena to Nixon, 360 F.Supp. 1, aff'd sub nom. Nixon v. Sirica, 159 U.S.App.D.C. 58, 487 F.2d 700 (1973). In November 1973, petitioner submitted seven of the nine subpoenaed recordings and informed the Office of the Special Prosecutor that the other two were missing.
3
On March 1, 1974, the grand jury indicted seven individuals1 for, among other things, conspiring to obstruct justice in connection with the investigation of the 1972 burglary of the Democratic National Committee headquarters. In preparation for this trial, styled United States v. Mitchell,2 the Special Prosecutor, on April 18, 1974, issued a second subpoena duces tecum, directing petitioner to produce tape recordings and documents relating to some 64 additional Presidential meetings and conversations. The District Court denied petitioner's motions to quash. United States v. Mitchell, 377 F.Supp. 1326 (1974). This Court granted certiorari before judgment in the Court of Appeals and affirmed. United States v. Nixon, 418 U.S. 683, 94 S.Ct. 3090, 41 L.Ed.2d 1039 (1974). In accordance with our decision, the subpoenaed tapes were turned over to the District Court for in camera inspection. The court arranged to have copies made of the relevant and admissible portions. It retained one copy and gave the other to the Special Prosecutor.3
4
The trial began on October 1, 1974, before Judge Sirica. During its course, some 22 hours of taped conversations were played for the jury and the public in the courtroom. The reels of tape containing conversations played for the jury were entered into evidence. The District Court furnished the jurors, reporters, and members of the public in attendance with earphones and with transcripts prepared by the Special Prosecutor. The transcripts were not admitted as evidence, but were widely reprinted in the press.
5
Six weeks after the trial had begun, respondent broadcasters4 filed a motion before Judge Sirica, seeking permission to copy, broadcast, and sell to the public the portions of the tapes played at trial. Petitioner opposed the application. Because United States v. Mitchell was consuming all of Judge Sirica's time, this matter was transferred to Judge Gesell.
6
On December 5, 1974, Judge Gesell held that a common-law privilege of public access to judicial records permitted respondents to obtain copies of exhibits in the custody of the clerk, including the tapes in question. United States v. Mitchell, 386 F.Supp. 639, 641. Judge Gesell minimized petitioner's opposition to respondents' motion, declaring that neither his alleged property interest in the tapes nor his asserted executive privilege sufficed to prevent release of recordings already publicly aired and available, in transcription, to the world at large. Id., at 642. Judge Gesell cautioned, however, against "overcommercialization of the evidence." Id., at 643. And because of potential administrative and mechanical difficulties, he prohibited copying until the trial was over. Ibid. He requested that the parties submit proposals for access and copying procedures that would minimize overcommercialization and administrative inconvenience at that time. Ibid. In an order of January 8, 1975, Judge Gesell rejected respondents' joint proposals as insufficient. Id., at 643-644. Noting the close of the Mitchell trial, he transferred the matter back to Judge Sirica.
7
On April 4, 1975, Judge Sirica denied without prejudice respondents' petitions for immediate access to the tapes. United States v. Mitchell, 397 F.Supp. 186. Observing that all four men convicted in the Mitchell trial had filed notices of appeal, he declared that their rights could be prejudiced if the petitions were granted. Immediate access to the tapes might "result in the manufacture of permanent phonograph records and tape recordings, perhaps with commentary by journalists or entertainers; marketing of the tapes would probably involve mass merchandising techniques designed to generate excitement in an air of ridicule to stimulate sales." Id., at 188. Since release of the transcripts had apprised the public of the tapes' contents, the public's "right to know" did not, in Judge Sirica's view, overcome the need to safeguard the defendants' rights on appeal. Id., at 188-189. Judge Sirica also noted the passage of the Presidential Recordings and Materials Preservation Act (Presidential Recordings Act), 88 Stat. 1695, note following 44 U.S.C. § 2107 (1970 ed., Supp. V),5 and the duty thereunder of the Administrator of General Services (Administrator) to submit to Congress regulations governing access to Presidential tapes in general. Under the proposed regulations then before Congress,6 public distribution of copies would be delayed for 41/2 years. Although Judge Sirica doubted that the Act covered the copies at issue here, he viewed the proposed regulations as suggesting that immediate release was not of overriding importance. 397 F.Supp., at 189.
8
The Court of Appeals reversed. United States v. Mitchell, 179 U.S.App.D.C. 293, 551 F.2d 1252 (1976). It stressed the importance of the common-law privilege to inspect and copy judicial records and assigned to petitioner the burden of proving that justice required limitations on the privilege. In the court's view, the mere possibility of prejudice to defendants' rights in the event of a retrial did not outweigh the public's right of access. Id., at 302-304, 551 F.2d, at 1261-1263. The court concluded that the District Court had "abused its discretion in allowing those diminished interests in confidentiality to interfere with the public's right to inspect and copy the tapes." Id., at 302, 551 F.2d, at 1261. It remanded for the development of a plan of elease, but noted—in apparent contrast to the admonitions of Judge Gesell—that the "court's power to control the uses to which the tapes are put once released . . . is sharply limited by the First Amendment." Id., at 304 n. 52, 551 F.2d, at 1263 n. 52 (emphasis in original). We granted certiorari to review this holding that the common-law right of access to judicial records requires the District Court to release the tapes in its custody.
II
9
Both petitioner and respondents acknowledge the existence of a common-law right of access to judicial records, but they differ sharply over its scope and the circumstances warranting restrictions of it. An infrequent subject of litigation, its contours have not been delineated with any precision. Indeed, no case directly in point—that is, addressing the applicability of the common-law right to exhibits subpoenaed from third parties—has been cited or discovered.
A.
10
It is clear that the courts of this country recognize a general right to inspect and copy public records and documents,7 including judicial records and documents.8 In contrast to the English practice, see, e. g., Browne v. Cumming, 10 B. & C. 70, 109 Eng.Rep. 377 (K.B.1829), American decisions generally do not condition enforcement of this right on a proprietary interest in the document or upon a need for it as evidence in a lawsuit. The interest necessary to support the issuance of a writ compelling access has been found, for example, in the citizen's desire to keep a watchful eye on the workings of public agencies, see, e. g., State ex rel. Colscott v. King, 154 Ind. 621, 621-627, 57 N.E. 535, 536-538 (1900); State ex rel. Ferry v. Williams, 41 N.J.L. 332, 336-339 (1879), and in a newspaper publisher's intention to publish information concerning the operation of government, see, e. g., State ex rel. Youmans v. Owens, 28 Wis.2d 672, 677, 137 N.W.2d 470, 472 (1965), modified on other grounds, 28 Wis.2d 685a, 139 N.W.2d 241 (1966). But see Burton v. Reynolds, 110 Mich. 354, 68 N.W. 217 (1896).
11
It is uncontested, however, that the right to inspect and copy judicial records is not absolute. Every court has supervisory power over its own records and files, and access has been denied where court files might have become a vehicle for improper purposes. For example, the common-law right of inspection has bowed before the power of a court to insure that its records are not "used to gratify private spite or promote public scandal" through the publication of "the painful and sometimes disgusting details of a divorce case." In re Caswell, 18 R.I. 835, 836, 29 A. 259 (1893). Accord, e. g., C. v. C., 320 A.2d 717, 723, 727 (Del.1974). See also King v. King, 25 Wyo. 275, 168 P. 730 (1917). Similarly, courts have refused to permit their files to serve as reservoirs of libelous statements for press consumption, Park v. Detroit Free Press Co., 72 Mich. 560, 568, 40 N.W. 731, 734-735 (1888); see Cowley v. Pulsifer, 137 Mass. 392, 395 (1884) (per Holmes, J.); Munzer v. Blaisdell, 268 App.Div. 9, 11, 48 N.Y.S.2d 355, 356 (1944); see also Sanford v. Boston Herald-Traveler Corp., 318 Mass. 156, 158, 61 N.E.2d 5, 6 (1945), or as sources of business information that might harm a litigant's competitive standing, see, e. g., Schmedding v. May, 85 Mich. 1, 5-6, 48 N.W. 201, 202 (1891); Flexmir, Inc. v. Herman, 40 A.2d 799, 800 (N.J.Ch.1945).
12
It is difficult to distill from the relatively few judicial decisions a comprehensive definition of what is referred to as the common-law right of access or to identify all the factors to be weighed in determining whether access is appropriate. The few cases that have recognized such a right do agree that the decision as to access is one best left to the sound discretion of the trial court, a discretion to be exercised in light of the relevant facts and circumstances of the particular case.9 In any event, we need not undertake to delineate precisely the contours of the common-law right, as we assume, arguendo, that it applies to the tapes at issue here.10
B
13
Petitioner advances several reasons supporting the exercise of discretion against release of the tapes.11
14
First, petitioner argues that he has a property interest in the sound of his own voice, an interest that respondents intend to appropriate unfairly.12 In respondents' view, our decision in Nixon v. Administrator of General Services, 433 U.S. 425, 97 S.Ct. 2777, 53 L.Ed.2d 867 (1977), upholding the constitutionality of the President al Recordings Act, divested petitioner of any property rights in the tapes that could be asserted against the general public. Petitioner insists, however, that respondents' point is not fully responsive to his argument. Petitioner is not asserting a proprietary right in the tapes themselves. He likens his interest to that of a third party whose voice is recorded in the course of a lawful wiretap by police officers and introduced into evidence on tape. In petitioner's view, use of one's voice as evidence in a criminal trial does not give rise to a license for commercial exploitation.
15
Petitioner also maintains that his privacy would be infringed if aural copies of the tapes were distributed to the public.13 The Court of Appeals rejected this contention. It reasoned that with the playing of the tapes in the courtroom, the publication of their contents in the form of written transcripts, and the passage of the Presidential Recordings Act—in which Congress contemplated ultimate public distribution of aural copies—any realistic expectation of privacy disappeared. 179 U.S.App.D.C., at 304-305, 551 F.2d, at 1263-1264. Furthermore, the court ruled that as Presidential documents the tapes were "impressed with the 'public trust' " and not subject to ordinary privacy claims. Id., at 305, 551 F.2d, at 1264. Respondents add that aural reproduction of actual conversations, reflecting nuances and inflections, is a more accurate means of informing the public about this important historical event than a verbatim written transcript. Petitioner disputes this claim of "accuracy," emphasizing that the tapes required 22 hours to be played. If made available for commercial recordings or broadcast by the electronic media, only fractions of the tapes, necessarily taken out of context, could or would be presented. Nor would there be any safeguard, other than the taste of the marketing medium, against distortion through cutting, erasing, and splicing of tapes. There would be strong motivation to titillate as well as to educate listeners. Petitioner insists that this use would infringe his privacy, resulting in embarrassment and anguish to himself and the other persons who participated in private conversations that they had every reason to believe would remain confidential.
16
Third, petitioner argues that our decision in United States v. Nixon, 418 U.S. 683, 94 S.Ct. 3090, 41 L.Ed.2d 1039 (1974), authorized only the most limited use of subpoenaed Presidential conversations consistent with the constitutional duty of the judiciary to ensure justice in criminal prosecutions. The Court of Appeals concluded, however, that the thrust of our decision in that case was to protect the confidentiality of Presidential conversations that were neither relevant nor admissible in the criminal proceeding; it did not relate to uses of conversations actually introduced into evidence. Since these conversations were no longer confidential, 179 U.S.App.D.C., at 305-306, 551 F.2d, at 1264-1265, Presidential privilege no longer afforded any protection.
17
Finally, petitioner argues that it would be improper for the courts to facilitate the commercialization of these White House tapes. The court below rejected this argument, holding it a "question of taste" that could not take precedence over the public's right of access. Id., at 306, 551 F.2d, at 1265. Petitioner rejoins that such matters of taste induce courts to deny public access to court files in divorce and libel litigation. See, e. g., In re Caswell, 18 R.I. 835, 29 A. 259 (1893); Munzer v. Blaisdell, 268 App.Div., at 11, 48 N.Y.S.2d, at 356. Moreover, argues petitioner, widespread publication of the transcripts h § satisfied the public's legitimate interests; the marginal gain in information from the broadcast and sale of aural copies is outweighed by the unseemliness of enlisting the court, which obtained these recordings by subpoena for a limited purpose, to serve as the vehicle of their commercial exploitation "at cocktail parties, . . . in comedy acts or dramatic productions, . . . and in every manner that may occur to the enterprising, the imaginative, or the antagonistic recipients of copies." Brief for Petitioner 30.
C
18
At this point, we normally would be faced with the task of weighing the interests advanced by the parties in light of the public interest and the duty of the courts.14 On respondents' side of the scales is the incremental gain in public understanding of an immensely important historical occurrence that arguably would flow from the release of aural copies of these tapes, a gain said to be not inconsequential despite the already widespread dissemination of printed transcripts. Also on respondents' side is the presumption—however gauged—in favor of public access to judicial records. On petitioner's side are the arguments identified above, which must be assessed in the context of court custody of the tapes. Underlying each of petitioner's arguments is the crucial fact that respondents require a court's cooperation in furthering their commercial plans. The court—as custodian of tapes obtained by subpoena over the opposition of a sitting President, solely to satisfy "fundamental demands of due process of law in the fair administration of criminal justice," United States v. Nixon, supra, at 713, 94 S.Ct., at 3110—has a responsibility to exercise an informed discretion as to release of the tapes, with a sensitive appreciation of the circumstances that led to their production. This responsibility does not permit copying upon demand. Otherwise, there would exist a danger that the court could become a partner in the use of the subpoenaed material "to gratify private spite or promote public scandal," In re Caswell, supra, at 836, 29 A. 259, with no corresponding assurance of public benefit.
19
We need not decide how the balance would be struck if the case were resolved only on the basis of the facts and arguments reviewed above. There is in this case an additional, unique element that was neither advanced by the parties nor given appropriate consideration by the courts below. In the Presidential Recordings Act, Congress directed the Administrator of General Services to take custody of petitioner's Presidential tapes and documents. The materials are to be screened by Government archivists so that those private in nature may be returned to petitioner, while those of historical value may be preserved and made available for use in judicial proceedings and, eventually, made accessible to the public. Thus, Congress has created an administrative procedure for processing and releasing to the public, on terms meeting with congressional approval, all of petitioner's Presidential materials of historical interest, including recordings of the conversations at issue here.15 In Nixon v. Administrator of General Services, 433 U.S. 425, 97 S.Ct. 2777, 53 L.Ed.2d 867 (1977), we noted two major objects of the Act. First, it created a centralized custodian for the preservation and "orderly processing" of petitioner's historical materials. Second, it mandated protection of the "rights of [petitioner] and other individuals against infringement by the processing itself or, ultimately, by public access to the materials retained." Id., at 436, 97 S.Ct., at 2787. To these ends, the Act directed the Administrator to formulate regulations that would permit consideration of a number of different factors.16 Thus, the Act provides for legislative and executive appraisal of the most appropriate means of assuring public access to the material, subject to prescribed safeguards. Because of this congressionally prescribed avenue of public access we need not weigh the parties' competing arguments as though the District Court were the only potential source of information regarding these historical materials. The presence of an alternative means of public access tips the scales in favor of denying release.
20
Respondents argue that immediate release would serve the policies of the Act. The Executive and Legislative Branches, however, possess superior resources for assessing the proper implementation of public access and the competing rights, if any, of the persons whose voices are recorded on the tapes. These resources are to be brought to bear under the Act, and court release of copies of materials subject to the Act might frustrate the achievement of the legislative goals of orderly processing and protection of the rights of all affected persons. Simply stated, the policies of the Act can best be carried out under the Act itself. Indeed, Judge Sirica—as we have noted supra, at 595-596 referred to the scheme established under the Act in assessing the need for immediate release. 397 F.Supp., at 189; cf. United States v. Monjar, 154 F.2d 954 (CA3 1946). But because defendants' appeals were pending, he merely denied respondents' petition without prejudice, contemplating reconsideration after exhaustion of all appeals.17 Thus, he did not have to confront the question whether the existence of the Act is, as we hold, a decisive element in the proper exercise of discretion with respect to release of the tapes.
21
We emphasize that we are addressing only the application in this case of the common-law right of access to judicial records. We do not presume to decide any issues as to the proper exercise of the Administrator's independent duty under the statutory standards. He remains free, subject to congressional disapproval, to design such procedures for public access as he believes will advance the policies of the Act.18 Questions concerning the constitutionality and statutory validity of any access scheme finally implemented are for future consideration in appropriate proceedings. See Nixon v. Administrator of General Services, 433 U.S., at 438-439, 444-446, 450, 455, 462, 464-465, 467, 97 S.Ct., at 2787-2788, 2790-2791, 2793, 2799, 2800-2801, 2802, 2820-2821; id., at 503-504, 97 S.Ct., at 2820-2821 (POWELL, J., concurring).
22
Considering all the circumstances of this concededly singular case, we hold that the common-law right of access to judicial records does not authorize release of the tapes in question from the custody of the District Court. We next consider whether, as respondents claim, the Constitution impels us to reach a different result.
III
23
Respondents argue that release of the tapes is required by both the First Amendment guarantee of freedom of the press and the Sixth Amendment guarantee of a public trial. Neither supports respondents' conclusion.
A.
24
In Cox Broadcasting Corp. v. Cohn, 420 U.S. 469, 95 S.Ct. 1029, 43 L.Ed.2d 328 (1975), this Court held that the First Amendment prevented a State from prohibiting the press from publishing the name of a rape victim where that information had been placed "in the public domain on official court records." Id., at 495, 95 S.Ct., at 1046. Respondents claim that Cox Broadcasting guarantees the press "access" to meaning the right to copy and publish—exhibits and materials displayed in open court.
25
This argument misconceives the holding in Cox Broadcasting. Our decision in that case merely affirmed the right of the press to publish accurately information contained in court records open to the public. Since the press serves as the information-gathering agent of the public, it could not be prevented from reporting what it had learned and what the public was entitled to know. Id., at 491-492, 95 S.Ct. at 1044-1045. In the instant case, however, there is no claim that the press was precluded from publishing or utilizing as it saw fit the testimony and exhibits filed in evidence. There simply were no restrictions upon press access to, or publication of any information in the public domain. Indeed, the press—including reporters of the electronic media—was permitted to listen to the tapes and report on what was heard. Reporters also were furnished transcripts of the tapes, which they were free to comment upon and publish. The contents of the tapes were given wide publicity by all elements of the media. There is no question of a truncated flow of information to the public. Thus, the issue presented in this case is not whether the press must be permitted access to public information to which the public generally is guaranteed access, but whether these copies of the White House tapes—to which the public has never had physical access—must be made available for copying. Our decision in Cox Broadcasting simply is not applicable.
26
The First Amendment generally grants the press no right to information about a trial superior to that of the general public. "Once beyond the confines of the courthouse, a news-gathering agency may publicize, within wide limits, what its representatives have heard and seen in the courtroom. But the line is drawn at the courthouse door; and within, a reporter's constitutional rights are no greater than those of any other member of the public." Estes v. Texas, 381 U.S. 532, 589, 85 S.Ct. 1628, 1663, 14 L.Ed.2d 543 (1965) (Harlan, J., concurring). Cf. Saxbe v. Washington Post Co., 417 U.S. 843, 94 S.Ct. 2811, 41 L.Ed.2d 514 (1974); Pell v. Procunier, 417 U.S. 817, 94 S.Ct. 2800, 41 L.Ed.2d 495 (1974). See also Zemel v. Rusk, 381 U.S. 1, 16-17, 85 S.Ct. 1271, 1280-1281, 14 L.Ed.2d 179 (1965).
B
27
Respondents contend that release of the tapes is required by the Sixth Amendment guarantee of a public trial.19 They acknowledge that the trial at which these tapes were played was one of the most publicized in history, but argue that public understanding of it remains incomplete in the absence of the ability to listen to the tapes and form judgments as to their meaning based on inflection and emphasis.
28
In the first place, this argument proves too much. The same could be said of the testimony of a live witness, yet there is no constitutional right to have such testimony recorded and broadcast. Estes v. Texas, supra, 381 U.S., at 539-542, 85 S.Ct., at 1631-1632. Second, while the guarantee of a public trial, in the words of Mr. Justice Black, is "a safeguard against any attempt to employ our courts as instruments of persecution," In re Oliver, 333 U.S. 257, 270, 68 S.Ct. 499, 506, 92 L.Ed. 682 (1948), it confers no special benefit on the press. Estes v. Texas, 381 U.S., at 583, 85 S.Ct., at 1653 (Warren, C. J., concurring); id., at 588-589, 85 S.Ct., at 1662-1663 (Harlan, J., concurring). Nor does the Sixth Amendment require that the trial—or any part of it be broadcast live or on tape to the public. The requirement of a public trial is satisfied by the opportunity of members of the public and the press to attend the trial and to report what they have observed. Ibid. That opportunity abundantly existed he e.
IV
29
We hold that the Court of Appeals erred in reversing the District Court's decision not to release the tapes in its custody. We remand the case with directions that an order be entered denying respondents' application with prejudice.20
30
So ordered.
31
Mr. Justice WHITE, with whom Mr. Justice BRENNAN joins, dissenting in part.
32
Although I agree with the Court that the Presidential Recordings and Materials Preservation Act is dispositive of this case and that the judgment of the Court of Appeals should be reversed, my reasons are somewhat different, for I do not agree that the Act does not itself reach the tapes at issue here. It is true that § 101(a) of the Act requires delivery to the Administrator and his retention of only original tape recordings and hence does not reach the tapes involved here. But § 101(b) is differently cast:
33
"(b)(1) Notwithstanding any other law or any agreement or understanding made pursuant to section 2107 of title 44, United States Code, the Administrator 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 of Richard M. Nixon, covering the period beginning January 20, 1969, and ending August 9, 1974.
34
"(2) For purposes of this subsection, the term 'historical materials' has the meaning given it by section 2101 of title 44, United States Code."
35
"Historical materials" is defined in 44 U.S.C. § 2101 as "including books, correspondence, documents, papers, pamphlets, works of art, models, pictures, photographs, plats, maps, films, motion pictures, sound recordings, and other objects or materials having historical or commemorative value."
36
Obviously, § 101(b) has a far broader sweep than § 101(a). It is not limited to originals but would reach copies as well. Nor is there any question that the tapes sought to be released here contain conversations that occurred during the critical period covered by § 101(b)—January 20, 1969, to August 9, 1974. That the tapes at issue are copies made at a later time does not remove the critical fact that the conversations on these copies, like the conversations on the originals, occurred during the relevant period. Furthermore, if the originals are of historical value, the copies are of equal significance. Otherwise, it is unlikely that there would be such an effort to obtain them.
37
Of course, the Administrator under the Presidential Recordings Act is not compelled to seek out every copy of every document or recording that was itself produced during the specified period of time. But surely he is authorized to receive the tapes at issue in this case and to deal with them under the terms of the statute.
38
It is my view, therefore, that the judgment of the Court of Appeals should be reversed, but that the case should be remanded to the District Court with instructions to deliver the tapes in question to the Administrator forthwith.
39
Mr. Justice MARSHALL, dissenting.
40
As the court below found, respondents here are "seek[ing to vindicate a precious common law right, one that predates the Constitution itself." United States v. Mitchell, 179 U.S.App.D.C. 293, 301, 551 F.2d 1252, 1260 (1976). The Court today recognizes this right and assumes that it is applicable here. Ante, at 598-599, and n. 11. It also recognizes that the court with custody of the records must have substantial discretion in making the decision regarding access. Ante, at 599.
41
The Court nevertheless holds that, contrary to the rulings below, respondents should be denied access to significant materials in which there is wide public interest. The Court finds "decisive" the existence of the Presidential Recordings and Materials Preservation Act. Ante, at 607. The Act, however, by its express terms covers only "original tape recordings," § 101(a), and it is undisputed that the tapes at issue here are copies, see ante, at 593-594 n. 3, 603-604 n. 15. Indeed, in a commendable display of candor, petitioner has conceded that the Act does not apply. Supplemental Brief for Petitioner 2.
42
Nothing in the Act's history suggests that Congress intended the courts to defer to the Executive Branch with regard to these tapes. To the contrary, the Administrator of General Services had to defer to the District Court's "expertise" in order to secure congressional approval of regulations promulgated under the Act. See post, at 616, and n. 5 (STEVENS, J., dissenting). It is clear, moreover, that Congress intended the Act to ensure "the American people . . . full access to all facts about the Watergate affair." S.Rep. No. 93-1181, p. 4 (1974).
43
Hence the Presidential Recordings Act, to the extent that it provides any assistance in deciding this case, strongly indicates that the tapes should be released to the public as directed by the Court of Appeals. While petitioner may well be "a legitimate class of one," Nixon v. Administrator of General Services, 433 U.S. 425, 472, 97 S.Ct. 2777, 2805, 53 L.Ed.2d 867 (1977), we are obligated to adhere to the historic role of the Judiciary on this matter that both sides concede should be ours to resolve. I dissent.
44
Mr. Justice STEVENS, dissenting.
45
The question whether a trial judge has properly exercised his discretion in releasing copies of trial exhibits arises infrequently. It is essentially a question to be answered by reference to the circumstances of a particular case. Only an egregious abuse of discretion should merit reversal; and when the District Court1 and the Court of Appeals2 have concurred, the burden of justifying review by this Court should be virtually insurmountable. Today's decision represents a dramatic departure from the practice appellate courts should observe with respect to a trial court's exercise of discretion concerning its own housekeeping practices.
46
There is, of course, an important and legitimate public interest in protecting the dignity of the Presidency, and petitioner has a real interest in avoiding the harm associated with further publication of his taped conversations. These interests are largely eviscerated, however, by the fact that these trial exhibits are already entirely in the public domain. Moreover, the normal presumption in favor of access is strongly reinforced by the special characteristics of this litigation. The conduct of the trial itself, as well as the conduct disclosed by the evidence, is a subject of great historical interest. Full understanding of this matter may affect the future operation of our institutions. The distinguished trial judge, who was intimately familiar with the ramifications of this case and its place in history, surely struck the correct balance.
47
Today the Court overturns the d cisions of the District Court and the Court of Appeals by giving conclusive weight to the Presidential Recordings and Materials Preservation Act, 88 Stat. 1695.3 That Act, far from requiring the District Court to suppress these tapes, manifests Congress' settled resolve "to provide as much public access to the materials as is physically possible as quickly as possible."4 It is therefore not surprising that petitioner responded to the Court's post-argument request for supplemental briefs by expressly disavowing any reliance on the Presidential Recordings Act. Nor is there any reason to require the District Court to defer to the expertise of the Administrator of General Services, for the Administrator gained congressional approval of his regulations only by deferring to the expertise displayed by the District Court in this case.5 For this Court now to rely on the Act as a basis for reversing the trial judge's considered judgment is ironic, to put it mildly.
48
I respectfully dissent.
1
The seven defendants were as follows: John N. Mitchell, former Attorney General and head of the Committee for the Re-election of the President; H. R. Haldeman, former Assistant to the President, serving as White House Chief of Staff; John D. Ehrlichman, former Assistant to the President for Domestic Affairs; Charles W. Colson, former Special Counsel to the President; Robert C. Mardian, former Assistant Attorney General and official of the Committee for the Re-election of the President; Kenneth W. Parkinson, hired as the Committee's counsel in June 1972; and Gordon Strachan, staff assistant to Haldeman.
2
Crim. No. 74-110 (D.C.1974). Defendant Colson pleaded guilty to other charges before trial, and the case against him was dismissed. Strachan's case was severed and ultimately dismissed. The jury acquitted Parkinson and found Mardian guilty of conspiracy. Mitchell, Haldeman, and Ehrlichman were convicted of conspiracy, obstruction of justice, and perjury.
The convictions of Mitchell, Haldeman, and Ehrlichman were affirmed. United States v. Haldeman, 181 U.S.App.D.C. 254, 559 F.2d 31 (1976), cert. denied, 431 U.S. 933, 97 S.Ct. 2641, 53 L.Ed.2d 250 (1977). Mardian's conviction was reversed, United States v. Mardian, 178 U.S.App.D.C. 207, 546 F.2d 973 (1976), and no further proceedings were instituted against him.
3
The Clerk of the District Court described the copying procedure:
"White House tape recordings were submitted to the Court pursuant to two separate subpoenas. The first group of tapes were delivered in November 1973 and the second in July and August 1974. In each instance, the Court received what purported to be the entire reel of original recording on which was found any portion of a subpoenaed conversation.
"As the time for trial in U. S. v. Mitchell, et al., CR 74-110, approached, the Court reproduced subpoenaed conversations from the original recordings, using technical assistance supplied by the Watergate Special Prosecutor. Portions of conversations and, in some cases, enti e conversations which the Court had previously declared to be subject to privilege were not reproduced. Two copies of each conversation were produced simultaneously and were designated Copy A and Copy B. The Copy B series was delivered to the Special Prosecutor pursuant to the subpoenas aforementioned for use in the preparation of transcripts. Copy A series tapes were retained by the Court and later marked for identification as Government Exhibits in CR 74-110. These tapes are contained on about 50 separate reels.
"In the Government's case at trial, some, but not all, of the Copy A series tapes were admitted into evidence. Some, but again not all, of the tape exhibits were published to the jury. Those published were played to the jury either in whole or in part. Where exhibits were not published in their entirety, the deletions had been made either by the Government on its own motion or pursuant to an order of Judge Sirica. Deletions were effected not by modifying the exhibit itself, but by skipping deleted portions on the tape or by interrupting the sound transmission to the jurors' headphones. The exhibits remain as originally constituted.
"The jurors were provided with transcripts of the tape recorded conversations for use as aids in listening to the exhibits. These written transcripts were marked for identification as Government Exhibits, and copies provided to the individual jurors, counsel, and news media representatives at the time the tapes were played. Deletions in the copies of transcripts used by the jurors and others matched precisely the deletions in tapes as they were published at trial.
"In many instances the Copy A series tapes introduced as Government Exhibits contain material that has not been published to the jury and others present in the courtroom." Affidavit of James F. Davey, Nov. 26, 1974, pp. 2-3; App. 24-25.
The District Court retains custody of the Copy A tapes, which are at issue here, and of the original recordings, which are not. The Copy B series is in the files of the Office of the Special Prosecutor, stored at the National Archives.
We note that under § 101 of the Presidential Recordings and Materials Preservation Act, 88 Stat. 1695, note following 44 U.S.C. § 2107 (1970 ed., Supp. V), the original tape recordings are subject to the control of the Administrator of General Services.
4
On September 17, 1974, representatives of the three commercial television networks had written informally to Judge Sirica, asking permission to copy for broadcasting purposes portions of the tapes played during the course of the trial. Judge Sirica referred this request to Chief Judge Hart, who consulted with other judges of the District Court and advised against permitting such copying. On October 2, 1974, Judge Sirica informed the network representatives that copying would not be allowed.
The three commercial networks and the Radio-Television News Directors Association filed with the District Court this formal application to copy the tapes on November 12, 1974. The Public Broadcasting System joined the application the next day. Warner Communic tions, Inc., filed a separate application on December 2, 1974.
5
For a detailed discussion of the terms and validity of the Act, see Nixon v. Administrator of General Services, 433 U.S. 425, 97 S.Ct. 2777, 53 L.Ed.2d 867 (1977).
6
40 Fed.Reg. 2670 (1975). Those regulations ultimately were disapproved. S.Res. 244, 94th Cong., 1st Sess. (1975), 121 Cong.Rec. 28609-28614 (1975). See also n. 16, infra.
7
See, e. g., McCoy v. Providence Journal Co., 190 F.2d 760, 765-766 (C.A.1), cert. denied, 342 U.S. 894, 72 S.Ct. 200, 96 L.Ed. 669 (1951); Fayette County v. Martin, 279 Ky. 387, 395-396, 130 S.W.2d 838, 843 (1939); Nowack v. Auditor General, 243 Mich. 200, 203-205, 219 N.W. 749, 750 (1928); In re Egan, 205 N.Y. 147, 154-155, 98 N.E. 467, 469 (1912); State ex rel. Nevada Title Guaranty & Trust Co. v. Grimes, 29 Nev. 50, 82-86, 84 P. 1061, 1072-1074 (1906); Brewer v. Watson, 71 Ala. 299, 303-306 (1882); People ex rel. Gibson v. Peller, 34 Ill.App.2d 372, 374-375, 181 N.E.2d 376, 378 (1962). In many jurisdictions this right has been recognized or expanded by statute. See, e. g., Ill.Rev.Stat., ch. 116, § 43.7 (1975).
8
See, e. g., Sloan Filter Co. v. El Paso Reduction Co., 117 F. 504 (CC Colo.1902); In re Sackett, 30 C.C.P.A. 1214 (Pat.), 136 F.2d 248 (1943); C. v. C., 320 A.2d 717, 724-727 (Del.1974); State ex rel. Williston Herald, Inc. v. O'Connell, 151 N.W.2d 758, 762-763 (N.D.1967). See also Ex parte Uppercu, 239 U.S. 435, 36 S.Ct. 140, 60 L.Ed. 368 (1915). This common-law right has been recognized in the courts of the District of Columbia since at least 1894. Ex parte Drawbaugh, 2 App.D.C. 404 (1894). See also United States v. Burka, 289 A.2d 376 (D.C.App.1972).
9
Cf. State ex rel. Youmans v. Owens, 28 Wis.2d 672, 682, 137 N.W.2d 470, 474-475 (1965), modified on other grounds, 28 Wis.2d 685a, 139 N.W.2d 241 (1966).
10
See n. 11, infra.
11
Petitioner also contends that the District Court was totally without discretion to consider release of the tapes at all. He offers three principal arguments in support of that position: (i) exhibit materials subpoenaed from third parties are not "court records" in terms of the common-law right of access; (ii) recorded materials, as opposed to written documents, are not subject to release by the court in custody; and (iii) the assertion of third-party property and privacy interests precludes release of the tapes to the public.
As we assume for the purposes of this case (see text above) that the common-law right of access is applicable, we do not reach or intimate any view as to the merits of these various contentions by petitioner.
Petitioner further argues that this is not a "right of access" case, for the District Court already has permitted considerable public access to the taped conversations through the trial itself and through publication of the printed transcripts. We need not decide whether such facts ever could be decisive. In view of our disposition of this case, the fact that substantial access already has been accorded the press and the public is simply one factor to be weighed.
Whatever the merits of these claims and those considered in the text, petitioner has standing to object to the release of the tapes. As the party from whom the original tapes were subpoenaed, and as one of the persons whose conversations are recorded, his allegations of further embarrassment, unfair appropriation of his voice, and additional exploitation of materials originally thought to be confidential establish injury in fact that would be redressed by a favorable decision of his claim. Thus, the constitutional element of standing is present. See Warth v. Seldin, 422 U.S. 490, 498-502, 95 S.Ct. 2197, 2204-2207, 45 L.Ed.2d 343 (1975).
12
Petitioner develops this argument more fully in support of his claim that the District Court lacks power to release these tapes. See n. 11, supra. The argument also is relevant, however, in determining whether the discretionary exercise of such power was proper.
13
See n. 12, supra.
14
Judge Sirica's principal reason for refusing to release the tapes—fairness to the defendants, who were appealing their convictions—is no longer a consideration. All appeals have been resolved. See n. 2, supra.
15
Both sides insist that the Act does not in terms cover the copies of the tapes involved in this case. Section 101(a) of the Act directs the Administrator to "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—
"(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 loc ted in Washington, District of Columbia; Camp David, Maryland; Key Biscayne, Florida; or San Clemente, California; and
"(3) were recorded during the period beginning January 20, 1969, and ending August 9, 1974." 88 Stat. 1695 (emphasis added).
The tapes at issue here are not "originals." See n. 3, supra. Nor were they recorded during the relevant period or in the designated areas.
Mr. Justice WHITE would direct that the copies of the tapes at issue in this case be delivered forthwith to the Administrator. He reaches this result by construing § 101(b) of the Act, in conjunction with 44 U.S.C. § 2101, as sweeping within the ambit of the Act's provisions copies as well as the originals of the tapes and materials generated by petitioner during the specified period (i. e., Jan. 20, 1969, to Aug. 9, 1974). Apart from the point that these copies were created after the close of that period, it is difficult to believe that § 101(b) was intended to sweep so broadly. In any event, we need not consider in this case what Congress may have intended by § 101(b). That section specifies duties of the Administrator. He is not a party to this case, has made no claim to entitlement to these copies, and the scope of § 101(b) has not been fully briefed and argued.
16
Under § 104 of the Act, the Administrator is to propose regulations governing public access to the Presidential tapes. These regulations must
meet with congressional approval. Section 104 provides in pertinent part as follows:
"REGULATIONS RELATING TO PUBLIC ACCESS
"Sec. 104. (a) The Administrator shall, within ninety days after the date of enactment of this title [Dec. 19, 1974] submit to each House of the Congress a report proposing and explaining regulations that would provide public access to the tape recordings and other materials referred to in section 101. Such regulations shall take into account the following factors:
"(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';
"(2) the need to make such recordings and materials available for use in judicial proceedings;
"(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;
"(4) the need to protect every individual's right to a fair and impartial trial;
"(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;
"(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
"(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.
"(b)(1) The regulations proposed by the Administrator in the report required by subsection (a) shall take effect upon the expiration of ninety legislative days after the submission of such report, unless such regulations are disapproved by a resolution adopted by either House of the Congress during such period.
"(2) The Administrator may not issue any regulation or make any change in a regulation if such regulation or change is disapproved by either House of the Congress under this subsection.
"(3) The provisions of this subsection shall apply to any change in the
regulations proposed by the Administrator in the report required by subsection (a). Any proposed change shall take into account the factors described in paragraph (1) through paragraph (7) of subsection (a), and such proposed change shall be submitted by the Administrator in the same manner as the report required by subsection (a)." 88 Stat. 1696-1697.
The Administrator's fourth set of proposed regulations has become final. 42 Fed.Reg. 63626 (1977). The first set was disapproved, S.Res. 244, 94th Cong., 1st Sess. (1975), 121 Cong.Rec. 28609-28614 (1975), as was the second, S.Res. 428, 94th Cong., 2d Sess. (1976), 122 Cong.Rec. 10159-10160 (1976). The House rejected six provisions of a third set. H.R.Res. 1505, 94th Cong., 2d Sess. (1976); 122 Cong.Rec. 30251 (1976). See also S.Rep. No. 94-368 (1975); H.R.Rep. No. 94-560 (1975); S.Rep. No. 94-748 (1976).
17
The suggestion of Mr. Justice Stevens, post, at 614, that the trial court has exercised its discretion to permit release of the copies is not
supported by the facts. It is true that Judge Gesell declared that respondents eventually should be permitted to copy the tapes at issue here, but he imposed stringent standards to safeguard against overcommercialization and administrative inconvenience. 386 F.Supp., at 643. Respondents failed to satisfy those standards. Id., at 643-644. When the matter returned to Judge Sirica, he framed the crucial issue as that of "the timing of the release, if ever, of certain tapes received in evidence" in the Mitchell trial. 397 F.Supp., at 187 (emphasis added). Thus, even if the defendants' appeals had not been pending, it is entirely speculative whether Judge Sirica would have exercised his discretion so as to permit release. In light of the appeals, Judge Sirica actually denied respondents' applications without prejudice. Consequently, this case is not correctly characterized a one in which the District Court and the Court of Appeals "have concurred," post, at 614, as to the proper exercise of discretion. Moreover, neither court gave appropriate consideration to the factor we deem controlling—the alternative means of public access provided by the Act.
18
Section 105-63.404(c) of the Administrator's final regulations provides in part that "[r]esearchers may obtain copies of the reference tapes only in accordance with procedures comparable to those approved by the United States District Court for the District of Columbia in United States v. Mitchell, et al.; In re National Broadcasting Company, Inc., et al., D.C. Miscellaneous 74-128." 42 Fed.Reg. 63629 (1977). In fact, the District Court has not approved any procedures. Hence, this regulation may reflect the belief that the federal judiciary, in delineating the scope of the common-law right of access to the tapes at issue here, would pass on questions of proprietary interest, privacy, and privilege that could affect release under the Act. See §§ 104(a)(5), (7), 105(a), (c). Because we decide that the existence of the Act itself obviates exercise of the common-
law right in this case, we have not found it necessary to pass on any such questions.
Moreover, this lawsuit arose independently of the Act, the Administrator is not a party, and any procedures that might have arisen from it would not necessarily have been developed with reference to the statutory standards the Administrator must consider. Further, there may be persons other than petitioner who may wish to assert private or public interests in the tapes themselves or in the manner of dissemination. We cannot accept respondents as necessarily representing the interests of the public generally or of the Administrator.
In sum, this litigation cannot be utilized as a substitute for the procedures and safeguards set forth in the Act, upon which we relied in Nixon v. Administrator of General Services, 433 U.S. 425, 97 S.Ct. 2777, 53 L.Ed.2d 867 (1977).
19
We assume, arguendo, that respondents have standing to object to an alleged deprivation of a defendant's right to a public trial. But see Estes v. Texas, 381 U.S. 532, 538, 85 S.Ct. 1628, 1630, 14 L.Ed.2d 543 (1965); id., at 583, 85 S.Ct. at 1653 (Warren, C. J., concurring); id., at 588-589, 85 S.Ct., at 1662-1663 (Harlan, J., concurring).
20
The task of balancing the various elements we have identified as part of the common-law right of access to judicial records should have been undertaken by the courts below in the first instance. "We need not remand for that purpose, however, because the outcome is readily apparent from what has been said above." Bigelow v. Virginia, 421 U.S. 809, 826-827, 95 S.Ct. 2222, 2235, 44 L.Ed.2d 600 (1975).
According to the Manual for Clerks of the United States District Courts § 207.1 (1966), clerks of the District Courts should "obtain a direction, standing order or rule that exhibits be returned [to their owners] or destroyed within a stated time after the time for appeal has expired." Because we have not addressed the issue of ownership of the copies at stake in this case, we do not speak to the disposition of them after remand.
1
District Judge Gesell explained the normal practice in the trial court:
"As a matter of practice in this court, if requested, a copy of any document or photograph received in evidence is made by the Clerk and furnished at cost of duplicating to any applicant, subject only to contrary instructions that may be given by the trial judge at the time of trial. This privilege of the public to inspect and obtain copies of all court records, including exhibits while in the custody of the Clerk, is of long standing in this jurisdiction and reaches far back into our common law and traditions. Absent special circumstances, any member of the public has a right to inspect and obtain copies of such judicial records. Ex parte Drawbaugh, 2 App.D.C. 404, 407 (1894). . . .
"The Court stated in Drawbaugh,
[A]ny attempt to maintain secrecy, as to the records of the court, would seem to be inconsistent with the common understanding of what belongs to a public court of record, to which all persons have the right of access and to its records, according to long-established usage and p actice.
"The Court has carefully reviewed transcripts of the tapes in issue. From this review it is apparent that Judge Sirica has assiduously removed extraneous material, including topics relating to national security and considerable irrelevant comment relating to persons not on trial. Only portions of the tapes strictly germane to the criminal proceeding have been played to the jury. Moreover, the portions of the tapes here in issue are now of public record. Although former President Nixon has been pardoned, he has standing to protest release by the Court but he has no right to prevent normal access to these public documents which have already been released in full text after affording the greatest protection to presidential confidentiality 'consistent with the fair administration of justice.' United States v. Nixon, [418 U.S. 683, 715, 94 S.Ct. 3090, 3111, 41 L.Ed.2d 1039 (1974)]. His words cannot be retrieved; they are public property and his opposition is accordingly rejected." United States v. Mitchell, 386 F.Supp. 639, 641-642 (D.C.1974).
Like the Court of Appeals, see n. 2, infra, and unlike the majority, ante, at 606-608, n. 17, I read this passage as a discretionary rejection of petitioner's claim that the tapes should be suppressed.
2
Explaining its concurrence in Judge Gesell's views, the Court of Appeals stated:
"Beyond this, there are a number of factors unique to this case that
militate in favor of Judge Gesell's decision. First, the conversations at issue relate to the conduct of the Presidency and thus they are both impressed with the 'public trust,' and of prime national interest. Second, the fact that the transcripts of the conversations already have received wide circulation makes this unlike a hypothetical case in which evidence previously accessible only to a few spectators will suddenly become available to the entire public. Finally, it seems likely that as a result of the Presidential [R]ecordings and Material[s] Preservation Act, the words and sounds at issue here will find a further entry way into the public domain. For all these reasons we are unable to conclude that Judge Gesell abused his discretion in rejecting the claim of privacy.
"In any event, in light of the strong interests underlying the common law right to inspect judicial records—interests especially important here given the national concern over Watergate—we cannot say that Judge Gesell abused his discretion in refusing to permit considerations of deference to impede the public's exercise of their common law rights." United States v. Mitchell, 179 U.S.App.D.C. 293, 305-306, 551 F.2d 1252, 1264-1265 (1976) (footnotes omitted).
It is true that Judge Sirica refused to order release of the tapes before the appeals were concluded, but he expressed no disagreement with any aspect of Judge Gesell's opinion.
It should also be noted that although Circuit Judge MacKinnon dissented from the Court of Appeals decision that the tapes should be released forthwith, he also expressed no disagreement with Judge Gesell's views. Id., at 306-307, 551 F.2d, at 1265-1266.
3
It is, of course, true that the Act's effect on this litigation "was neither advanced by the parties nor given appropriate consideration by the courts below." Ante, at 603. But this is a reason for rejecting, not embracing, petitioner's claim.
4
S.Rep.No.94-368, p. 13 (1975); H.R.Rep.No.95-560, p. 16 (1975).
5
The Administrator of General Services first planned to forbid private copying of the tapes in his control, but the Senate emphatically rejected this initial proposal. S.Res. 244, 94th Cong., 1st Sess. (1975), 121 Cong.Rec. 28609-28614 (1975). The Senate's Committee Report condemned the Administrator's proposed regulation as "at best, unnecessary, and at worst, inconsistent with the spirit if not the letter of the act." S.Rep.No.94-368, supra,, at 13. The Report elaborated:
"In evaluating this regulation, it is also necessary to consider the basic intent of the Act. This legislation was designed, within certain limitations, to provide as much public access to the materials as is physically possible as quickly as possible. To that end, GSA recognizes that legitimate research requires the reproduction of printed materials; reproduction is no less necessary when the material is a tape recording." Ibid.
A House Report also disapproved the proposal, rejecting the Administrator's fears of undue commercialization:
"There is of course a risk that some people will reproduce the recordings and exploit them for commercial purposes. That is the risk of a free society.
Moreover, it is a risk the Founding Fathers accepted in adopting the free speech protections of the first amendment, any researcher can announce to the world the findings of his research." H.R.Rep.No.560, 94th Cong., 1st Sess., 16 (1975).
The Administrator then revised his regulations proposing that private reproduction of the tapes be prohibited for two years and that the ban be reviewed at the end of that period. This proposal was rejected twice. S.Res.428, 94th Cong., 2d Sess. (1976), 122 Cong.Rec. 10159-10160 (1976); H.R.Res.1505, 94th Cong., 2d Sess. (1976), 122 Cong.Rec. 30251 (1976). See also S.Rep.No.94-748, pp. 23-24 (1976); H.R.Rep.No.94-1485, p. 26 (1976).
The Administrator finally obtained congressional approval only by adopting the approach of the District Court in this case. His latest regulation, as approved, states:
"Researchers may obtain copies of the reference tapes only in accordance with procedures comparable to those approved by the United States District Court for the District of Columbia in United States v. Mitchell . . .." 42 Fed.Reg. 63629 (1977).
Congress and the Administrator expected that the District Court would soon approve private copying of the tapes. The first congressional Reports on the Administrator's proposed regulations, after noting that reproduction of the court's tapes had been forbidden pending the appeals in United States v. Mitchell, expressed the belief that copying might begin when the prosecutions were completed. .R.Rep.No.94-560, supra, at 16 n. 4; S.Rep.No.94-368, supra, at 13 n. 1. The Administrator, in explaining his latest regulations, said that "once the Court approves a plan for reproduction of the Nixon tape recordings," the Administrator would adopt "similar procedures." General Services Administration, Legal Explanation of Public Access Regulations—Presidential Recordings and Materials Preservation Act, P.L. 93-526, p. G-54 (1977).
| 45
|
55 L.Ed.2d 550
98 S.Ct. 1291
435 U.S. 561
FRANK LYON COMPANY, Petitioner,v.UNITED STATES.
No. 76-624.
Argued Nov. 2, 1977.
Decided April 18, 1978.
Syllabus
A state bank, which was a member of the Federal Reserve System, upon realizing that it was not feasible, because of various state and federal regulations, for it to finance by conventional mortgage and other financing a building under construction for its headquarters and principal banking facility, entered into sale-and- easeback agreements by which petitioner took title to the building and leased it back to the bank for long-term use, petitioner obtaining both a construction loan and permanent mortgage financing. The bank is obligated to pay rent equal to the principal and interest payments on petitioner's mortgage and has an option to repurchase the building at various times at prices equal to the then unpaid balance of petitioner's mortgage and initial $500,000 investment. On its federal income tax return for the year in which the building was completed and the bank took possession, petitioner accrued rent from the bank and claimed as deductions depreciation on the building, interest on its construction loan and mortgage, and other expenses related to the sale-and-leaseback transaction. The Commissioner of Internal Revenue disallowed the deductions on the ground that petitioner was not the owner of the building for tax purposes but that the sale-and-leaseback arrangement was a financing transaction in which petitioner loaned the bank $500,000 and acted as a conduit for the transmission of principal and interest to petitioner's mortgagee. This resulted in a deficiency in petitioner's income tax, which it paid. After its claim for a refund was denied, it brought suit in the District Court to recover the amount so paid. The court held that the claimed deductions were allowable, but the Court of Appeals reversed, agreeing with the Commissioner. Held: Petitioner is entitled to the claimed deductions. Pp. 572-584.
(a) Although the rent agreed to be paid by he bank equaled the amounts due from the petitioner to its mortgagee, the sale-and-leaseback transaction is not a simple sham by which petitioner was but a conduit used to forward the mortgage payments made under the guise of rent paid by the bank to petitioner, on to the mortgagee, but the construction loan and mortgage note obligations on which petitioner paid interest are its obligations alone, and, accordingly, it is entitled to claim deductions therefor under § 163(a) of the Internal Revenue Code of 1954. Helvering v. Lazarus & Co., 308 U.S. 252, 60 S.Ct. 209, 84 L.Ed. 226, distinguished. Pp. 572-581.
(b) While it is clear that none of the parties to the sale-and-leaseback agreements is the owner of the building in any simple sense, it is equally clear that petitioner is the one whose capital was invested in the building and is therefore the party entitled to claim depreciation for the consumption of that capital under § 167 of the Code. P. 581.
(c) Where, as here, there is a genuine multiple-party transaction with economic substance that is compelled or encouraged by business or regulatory realities, that is imbued with tax-independent considerations, and that is not shaped solely by tax-avoidance features to which meaningless labels are attached, the Government should honor the allocation of rights and duties effectuated by the parties; so long as the lessor retains significant and genuine attributes of the traditional lessor status, the form of the transaction adopted by the parties governs for tax purposes. Pp. 581-584.
536 F.2d 746, reversed.
Erwin N. Griswold, Washington, D. C., for petitioner.
Stuart A. Smith, Washington, D. C., for respondent.
Mr. Justice BLACKMUN delivered the opinion of the Court.
1
This case concerns the federal income tax consequences of a sale-and-leaseback in which petitioner Frank Lyon Company (Lyon) took title to a building under construction by Worthen Bank & Trust Company (Worthen) of Little Rock, Ark., and simultaneously leased the building back to Worthen for long-term use as its headquarters and principal banking facility.
2
* The underlying pertinent facts are undisputed. They are established by stipulations, App. 9, 14, the trial testimony, and the documentary evidence, and are reflected in the District Court's findings.
A.
3
Lyon is a closely held Arkansas corporation engaged in the distribution of home furnishings, primarily hirlpool and RCA electrical products. Worthen in 1965 was an Arkansas-chartered bank and a member of the Federal Reserve System. Frank Lyon was Lyon's majority shareholder and board chairman; he also served on Worthen's board. Worthen at that time began to plan the construction of a multistory bank and office building to replace its existing facility in Little Rock. About the same time Worthen's competitor, Union National Bank of Little Rock, also began to plan a new bank and office building. Adjacent sites on Capitol Avenue, separated only by Spring Street, were acquired by the two banks. It became a matter of competition, for both banking business and tenants, and prestige as to which bank would start and complete its building first.
4
Worthen initially hoped to finance, to build, and to own the proposed facility at a total cost of $9 million for the site, building, and adjoining parking deck. This was to be accomplished by selling $4 million in debentures and using the proceeds in the acquisition of the capital stock of a wholly owned real estate subsidiary. This subsidiary would have formal title and would raise the remaining $5 million by a conventional mortgage loan on the new premises. Worthen's plan, however, had to be abandoned for two significant reasons:
5
1. As a bank chartered under Arkansas law, Worthen legally could not pay more interest on any debentures it might issue than that then specified by Arkansas law. But the proposed obligations would not be marketable at that rate.
6
2. Applicable statutes or regulations of the Arkansas State Bank Department and the Federal Reserve System required Worthen, as a state bank subject to their supervision, to obtain prior permission for the investment in banking premises of any amount (including that placed in a real estate subsidiary) in excess of the bank's capital stock or of 40% of its capital stock and surplus.1 See Ark.Stat.Ann. § 67-547.1 (Supp.1977); 12 U.S.C. § 371d (1976 ed.); 12 CFR § 265.2(f)(7) (1977). Worthen, accordingly, was advised by staff employees of the Federal Reserve System that they would not recommend approval of the plan by the System's Board of Governors.
7
Worthen therefore was forced to seek an alternative solution that would provide it with the use of the building, satisfy the state and federal regulators, and attract the necessary capital. In September 1967 it proposed a sale-and-leaseback arrangement. The State Bank Department and the Federal Reserve System approved this approach, but the Department required that Worthen possess an option to purchase the leased property at the end of the 15th year of the lease at a set price, and the federal regulator required that the building be owned by an independent third party.
8
Detailed negotiations ensued with investors that had indicated interest, namely, Goldman, Sachs & Company; White, Weld & Co.; Eastman Dillon, Union Securities & Company; and Stephens, Inc. Certain of these firms made specific proposals.
9
Worthen then obtained a commitment from New York Life Insurance Company to provide $7,140,000 in permanent mortgage financing on the building, conditioned upon its approval of the titleholder. At this point Lyon entered the negotiations and it, too, made a proposal.
10
Worthen submitted a counterproposal that incorporated the best features, from its point of view, of the several offers. Lyon accepted the counterproposal, suggesting, by way of further inducement, a $21,000 reduction in the annual rent for the first five years of the building lease. Worthen selected Lyon as the investor. After further negotiations, resulting in the elimination of that rent reduction (offset, however, by higher interest Lyon was to pay Worthen on a subsequent unrel ted loan), Lyon in November 1967 was approved as an acceptable borrower by First National City Bank for the construction financing, and by New York Life, as the permanent lender. In April 1968 the approvals of the state and federal regulators were received.
11
In the meantime, on September 15, before Lyon was selected, Worthen itself began construction.
B
12
In May 1968 Worthen, Lyon, City Bank, and New York Life executed complementary and interlocking agreements under which the building was sold by Worthen to Lyon as it was constructed, and Worthen leased the completed building back from Lyon:
13
1. Agreements between Worthen and Lyon. Worthen and Lyon executed a ground lease, a sales agreement, and a building lease.
14
Under the ground lease dated May 1, 1968, App. 366, Worthen leased the site to Lyon for 76 years and 7 months through November 2044. The first 19 months were the estimated construction period. The ground rents payable by Lyon to Worthen were $50 for the first 26 years and 7 months and thereafter in quarterly payments:
15
12/1/94 through 11/30/99 (5 years) —$100,000 annually
16
12/1/99 through 11/30/04 (5 years) —$150,000 annually
17
12/1/04 through 11/30/09 (5 years) —$200,000 annually
18
12/1/09 through 11/30/34 (25 years) —$250,000 annually
19
12/1/34 through 11/30/44 (10 years) —$10,000 annually.
20
Under the sales agreement dated May 19, 1968, id., at 508, Worthen agreed to sell the building to Lyon, and Lyon agreed to buy it, piece by piece as it was constructed, for a total price not to exceed $7,640,000, in reimbursements to Worthen for its expenditures for the construction of the building.2
21
Under the building lease dated May 1, 1968, id., at 376, Lyon leased the building back to Worthen for a primary term of 25 years from December 1, 1969, with options in Worthen to extend the lease for eight additional 5-year terms, a total of 65 years. During the period between the expiration of the building lease (at the latest, November 30, 2034, if fully extended) and the end of the ground lease on November 30, 2044, full ownership, use, and control of the building were Lyon's, unless, of course, the building had been repurchased by Worthen. Id., at 369. Worthen was not obligated to pay rent under the building lease until completion of the building. For the first 11 years of the lease, that is, until November 30, 1980, the stated quarterly rent was $145,581.03 ($582,324.12 for the year). For the next 14 years, the quarterly rent was $153,289.32 ($613,157.28 for the year), and for the option periods the rent was $300,000 a year, payable quarterly. Id., at 378-379. The total rent for the building over the 25-year primary term of the lease thus was $14,989,767.24. That rent equaled the principal and interest payments that would amortize the $7,140,000 New York Life mortgage loan over the same period. When the mortgage was paid off at the end of the primary term, the annual building rent, if Worthen extended the lease, came down to the stated $300,000. Lyon's net rentals from the building would be further reduced by the increase in ground rent Worthen would receive from Lyon during the extension.3
22
The building lease was a "net lease," under which Worthen was responsible for all expenses usually associated with the maintenance of an office building, including repairs, taxes, utility charges, and insurance, and was to keep the premises in good condition, excluding, however, reasonable wear and tear.
23
Finally, under the lease, Worthen had the option to repurchase the building at the following times and prices:
11/30/80 (after 11 years) —$6,325,169.85
11/30/84 (after 15 years) —$5,432,607.32
11/30/89 (after 20 years) —$4,187,328.04
11/30/94 (after 25 years) —$2,145,935.00
24
These repurchase option prices were the sum of the unpaid balance of the New York Life mortgage, Lyon's $500,000 investment, and 6% interest compounded on that investment.
25
2. Construction financing agreement. By agreement dated May 14, 1968, id., at 462, City Bank agreed to lend Lyon $7,000,000 for the construction of the building. This loan was secured by a mortgage on the building and the parking deck, executed by Worthen as well as by Lyon, and an assignment by Lyon of its interests in the building lease and in the ground lease.
26
3. Permanent financing agreement. By Note Purchase Agreement dated May 1, 1968, id., at 443, New York Life agreed to purchase Lyon's $7,140,000 63/4% 25-year secured note to be issued upon completion of the building. Under this agreement Lyon warranted that it would lease the building to Worthen for a noncancelable term of at least 25 years under a net lease at a rent at least equal to the mortgage payments on the note. Lyon agreed to make quarterly payments of principal and interest equal to the rentals payable by Worthen during the corresponding primary term of the lease. Id., at 523. The security for the note was a first deed of trust and Lyon's assignment of its interests in the building lease and in the ground lease. Id., at 527, 571. Worthen joined in the deed of trust as the owner of the fee and the parking deck.
27
In December 1969 the building was completed and Worthen took possession. At that time Lyon received the permanent loan from New York Life, and it discharged the interim loan from City Bank. The actual cost of constructing the office building and parking complex (excluding the cost of the land) exceeded $10,000,000.
C
28
Lyon filed its federal income tax returns on the accrual and calendar year basis. On its 1969 return, Lyon accrued rent from Worthen for December. It asserted as deductions one month's interest to New York Life; one month's depreciation on the building; interest on the construction loan from City Bank; and sums for legal and other expenses incurred in connection with the transaction.
29
On audit of Lyon's 1969 return, the Commissioner of Internal Revenue determined that Lyon was "not the owner for tax purposes of any portion of the Worthen Building," and ruled that "the income and expenses related to this building are not allowable . . . for Federal income tax purposes." App. 304-305, 299. He also added $2,298.15 to Lyon's 1969 income as "accrued interest income." This was the computed 1969 portion of a gain, considered the equivalent of interest income, the realization of which was based on the assumption that Worthen would exercise its option to buy the building after 11 years, on November 30, 1980, at the price stated in the lease, and on the additional determination that Lyon had "loaned" $500,000 to Worthen. In other words, the Commissioner determined that the sale-and-leaseback arrangement was a financing transaction in which Lyon loaned Worthe $500,000 and acted as a conduit for the transmission of principal and interest from Worthen to New York Life.
30
All this resulted in a total increase of $497,219.18 over Lyon's reported income for 1969, and a deficiency in Lyon's federal income tax for that year in the amount of $236,596.36. The Commissioner assessed that amount, together with interest of $43,790.84, for a total of $280,387.20.4
31
Lyon paid the assessment and filed a timely claim for its refund. The claim was denied, and this suit, to recover the amount so paid, was instituted in the United States District Court for the Eastern District of Arkansas within the time allowed by 26 U.S.C. § 6532(a)(1).
32
After trial without a jury, the District Court, in a memorandum letter-opinion setting forth findings and conclusions, ruled in Lyon's favor and held that its claimed deductions were allowable. 75-2 USTC ¶ 9545 (1975); 36 AFTR 2d ¶ 75-5059 (1975); App. 296-311. It concluded that the legal intent of the parties had been to create a bona fide sale-and-leaseback in accordance with the form and language of the documents evidencing the transactions. It rejected the argument that Worthen was acquiring an equity in the building through its rental payments. It found that the rents were unchallenged and were reasonable throughout the period of the lease, and that the option prices, negotiated at arm's length between the parties, represented fair estimates of market value on the applicable dates. It rejected any negative inference from the fact that the rentals, combined with the options, were sufficient to amortize the New York Life loan and to pay Lyon a 6% return on its equity investment. It found that Worthen would acquire an equity in the building only if it exercised one of its options to purchase, and that it was highly unlikely, as a practical matter, that any purchase option would ever be exercised. It rejected any inference to be drawn from the fact that the lease was a "net lease." It found that Lyon had mixed motivations for entering into the transaction, including the need to diversify as well as the desire to have the benefits of a "tax shelter." App. 296, 299.
33
The United States Court of Appeals for the Eighth Circuit reversed. 536 F.2d 746 (1976). It held that the Commissioner correctly determined that Lyon was not the true owner of the building and therefore was not entitled to the claimed deductions. It likened ownership for tax purposes to a "bundle of sticks" and undertook its own evaluation of the facts. It concluded, in agreement with the Government's contention, that Lyon "totes an empty bundle" of ownership sticks. Id., at 751. It stressed the following: (a) The lease agreements circumscribed Lyon's right to profit from its investment in the building by giving Worthen the option to purchase for an amount equal to Lyon's $500,000 equity plus 6% compound interest and the assumption of the unpaid balance of the New York Life mortgage.5 (b) The option prices did not take into account possible appreciation of the value of the building or inflation.6 (c) Any award realized as a result of destruction or condemnation of the building in excess of the mortgage balance and the $500,000 would be paid to Worthen and not Lyon.7 (d) The building rental payments during the primary term were exactly equal to the mortgage payments.8 (e) Worthen retained control over the ultimate disposition of the building through its various options to repurchase and to renew the lease plus its ownership of the site.9 (f) Worthen enjoyed all benefits and bore all burdens incident to the operation and ownership of the building so that, in the Court of Appeals' view, the only economic advantages accruing to Lyon, in the event it were considered to be the true owner of the property, were income tax savings of approximately $1.5 million during the first 11 yea § of the arrangement.10 Id., at 752-753.11 The court concluded, id., at 753, that the transaction was "closely akin" to that in Helvering v. Lazarus & Co., 308 U.S. 252, 60 S.Ct. 209, 84 L.Ed. 226 (1939). "In sum, the benefits, risks, and burdens which [Lyon] has incurred with respect to the Worthen building are simply too insubstantial to establish a claim to the status of owner for tax purposes. . . . The vice of the present lease is that all of [its] features have been employed in the same transaction with the cumulative effect of depriving [Lyon] of any significant ownership interest." 536 F.2d, at 754.
34
We granted certiorari, 429 U.S. 1089, 97 S.Ct. 1097, 51 L.Ed.2d 534 (1977), because of an indicated conflict with American Realty Trust v. United States, 498 F.2d 1194 (CA 4 1974).
II
35
This Court, almost 50 years ago, observed that "taxation is not so much concerned with the refinements of title as it is with actual command over the property taxed—the actual benefit for which the tax is paid." Corliss v. Bowers, 281 U.S. 376, 378, 50 S.Ct. 336, 74 L.Ed. 916 (1930). In a number of cases, the Court has refused to permit the transfer of formal legal title to shift the incidence of taxation attributable to ownership of property where the transferor continues to retain significant control over the property transferred. E. g., Commissioner of Internal Revenue v. Sunnen, 333 U.S. 591, 68 S.Ct. 715, 92 L.Ed. 898 (1948); Helvering v. Clifford, 309 U.S. 331, 60 S.Ct. 554, 84 L.Ed. 788 (1940). In applying this doctrine of substance over form, the Court has looked to the objective economic realities of a transaction rather than to the particular form the parties employed. The Court has never regarded "the simple expedient of drawing up papers," Commissioner of Internal Revenue v. Tower, 327 U.S. 280, 291, 66 S.Ct. 532, 538, 90 L.Ed. 670 (1946), as controlling for tax purposes when the objective economic realities are to the contrary. "In the field of taxation, administrators of the laws and the courts are concerned with substance and realities, and formal written documents are not rigidly binding." Helvering v. Lazarus & Co., 308 U.S., at 255, 60 S.Ct., at 210. See also Commissioner of Internal Revenue v. P. G. Lake, Inc., 356 U.S. 260, 266-267, 78 S.Ct. 691, 2 L.Ed.2d 743 (1958); Commissioner of Internal Revenue v. Court Holding Co., 324 U.S. 331, 334, 65 S.Ct. 707, 89 L.Ed. 981 (1945). Nor is the parties' desire to achieve a particular tax result necessarily relevant. Commissioner of Internal Revenue v. Duberstein, 363 U.S. 278, 286, 80 S.Ct. 1190, 4 L.Ed.2d 1218 (1960).
36
In the light of these general and established principles, the Government takes the position that the Worthen-Lyon transaction in its entirety should be regarded as a sham. The agreement as a whole, it is said, was only an elaborate financing scheme designed to provide economic benefits to Worthen and a guaranteed return to Lyon. The latter was but a conduit used to forward the mortgage payments, made under the guise of rent paid by Worthen to Lyon, on to New York Life as mortgagee. This, the Government claims, is the true substance of the transaction as viewed under the microscope of the tax laws. Although the arrangement was cast in sale-and-leaseback form, in substance it was only a financing transaction, and the terms of the repurchase options and lease renewals so indicate. It is said that Worthen could reacquire the building simply by satisfying the mortgage debt and paying Lyon its $500,000 advance plus interest, regardless of the fair market value of the building at the time; similarly, when the mortgage was paid off, Worthen could extend the lease at drastically reduced bargain rentals that likewise bore no relation to fair rental value but were simply calculated to pay Lyon its $500,000 plus interest over the extended term. Lyon's return on the arrangement in no event could exceed 6% compound interest (although the Government conceded it might well be less, Tr. of Oral Arg. 32). Furthermore, the favorable option and lease renewal terms made it highly unlikely that Worthen would abandon the building after it in effect had "paid off' the mortgage. The Government implies that the arrangement was one of convenience which, if accepted on its face, would enable Worthen to deduct its payments to Lyon as rent and would allow Lyon to claim a deduction for depreciation, based on the cost of construction ultimately borne by Worthen, which Lyon could offset against other income, and to deduct mortgage interest that roughly would offset the inclusion of Worthen's rental payments in Lyon's income. If, however, the Government argues, the arrangement was only a financing transaction under which Worthen was the owner of the building, Worthen's payments would be deductible only to the extent that they represented mortgage interest, and Worthen would be entitled to claim depreciation; Lyon would not be entitled to deductions for either mo tgage interest or depreciation and it would not have to include Worthen's "rent" payments in its income because its function with respect to those payments was that of a conduit between Worthen and New York Life.
37
The Government places great reliance on Helvering v. Lazarus & Co., supra, and claims it to be precedent that controls this case. The taxpayer there was a department store. The legal title of its three buildings was in a bank as trustee for land-trust certificate holders. When the transfer to the trustee was made, the trustee at the same time leased the buildings back to the taxpayer for 99 years, with option to renew and purchase. The Commissioner, in stark contrast to his posture in the present case, took the position that the statutory right to depreciation followed legal title. The Board of Tax Appeals, however, concluded that the transaction between the taxpayer and the bank in reality was a mortgage loan and allowed the taxpayer depreciation on the buildings. This Court, as had the Court of Appeals, agreed with that conclusion and affirmed. It regarded the "rent" stipulated in the leaseback as a promise to pay interest on the loan, and a "depreciation fund" required by the lease as an amortization fund designed to pay off the loan in the stated period. Thus, said the Court, the Board justifiably concluded that the transaction, although in written form a transfer of ownership with a leaseback, was actually a loan secured by the property involved.
38
The Lazarus case, we feel, is to be distinguished from the present one and is not controlling here. Its transaction was one involving only two (and not multiple) parties, the taxpayer-department store and the trustee-bank. The Court looked closely at the substance of the agreement between those two parties and rightly concluded that depreciation was deductible by the taxpayer despite the nomenclature of the instrument of conveyance and the leaseback. See also Sun Oil Co. v. Commissioner of Internal Revenue, 562 F.2d 258 (CA 3 1977) (a two-party case with the added feature that the second party was a tax-exempt pension trust).
39
The present case, in contrast, involves three parties, Worthen, Lyon, and the finance agency. The usual simple two-party arrangement was legally unavailable to Worthen. Independent investors were interested in participating in the alternative available to Worthen, and Lyon itself (also independent from Worthen) won the privilege. Despite Frank Lyon's presence on Worthen's board of directors, the transaction, as it ultimately developed, was not a familial one arranged by Worthen, but one compelled by the realities of the restrictions imposed upon the bank. Had Lyon not appeared, another interested investor would have been selected. The ultimate solution would have been essentially the same. Thus, the presence of the third party, in our view, significantly distinguishes this case from Lazarus and removes the latter as controlling authority.
III
40
It is true, of course, that the transaction took shape according to Worthen's needs. As the Government points out, Worthen throughout the negotiations regarded the respective proposals of the independent investors in terms of its own cost of funds. E. g., App. 355. It is also true that both Worthen and the prospective investors compared the various proposals in terms of the return anticipated on the investor's equity. But all this is natural for parties contemplating entering into a transaction of this kind. Worthen needed a building for its banking operations and other purposes and necessarily had to know what its cost would be. The investors were in business to employ their funds in the most remunerative way possible. And, as the Court has said in the past, a transaction must be given its effect in accord with what actually occurred and not in accord with what might have occurred. Commissioner of Internal Revenue v. National Alfalfa Dehydrating & Milling Co., 417 U.S. 134, 148-149, 94 S.Ct. 2129, 40 L.Ed.2d 717 (1974); Central Tablet Mfg. Co. v. United States, 417 U.S. 673, 690, 94 S.Ct. 2516, 41 L.Ed.2d 398 (1974).
41
There is no simple device available to peel away the form of this transaction and to reveal its substance. The effects of the transaction on all the parties were obviously different from those that would have resulted had Worthen been able simply to make a mortgage agreement with New York Life and to receive a $500,000 loan from Lyon. Then Lazarus would apply. Here, however, and most significantly, it was Lyon alone, and not Worthen, who was liable on the notes, first to City Bank, and then to New York Life. Despite the facts that Worthen had agreed to pay rent and that this rent equaled the amounts due from Lyon to New York Life, should anything go awry in the later years of the lease, Lyon was primarily liable.12 No matter how the transaction could have been devised otherwise, it remains a fact that as the agreements were placed in final form, the obligation on the notes fell squarely on Lyon.13 Lyon, an ongoing enterprise, exposed its very business well-being to this real and substantial risk.
42
The effect of this liability on Lyon is not just the abstract possibility that something will go wrong and that Worthen will not be able to make its payments. Lyon has disclosed this liability on its balance sheet for all the world to see. Its financial position was affected substantially by the presence of this long-term debt, despite the offsetting presence of the building as an asset. To the extent that Lyon has used its capital in this transaction, it is less able to obtain financing for other business needs.
43
In concluding that there is this distinct element of economic reality in Lyon's assumption of liability, we are mindful that the characterization of a transaction for financial accounting purposes, on the one hand, and for tax purposes, on the other, need not necessarily be the same. Commissioner of Internal Revenue v. Lincoln Savings & Loan Assn., 403 U.S. 345, 355, 91 S.Ct. 1893, 29 L.Ed.2d 519 (1971); Old Colony R. Co. v. Commissioner of Internal Revenue, 284 U.S. 552, 562, 52 S.Ct. 211, 76 L.Ed. 484 (1932). Accounting methods or descriptions, without more, do not lend substance to that which has no substance. But in this case accepted accounting methods, as understood by the several parties to the respective agreements and as applied to the transaction by others, gave the transaction a meaningful character consonant with the form it was given.14 Worthen was not allowed to enter into the type of transaction which the Government now urges to be the true substance of the arrangement. Lyon and Worthen cannot be said to have entered into the transaction intending that the interests involved were allocated in a way other than that associated with a sale-and-leaseback.
44
Other factors also reveal that the transaction cannot be viewed as anything more than a mortgage agreement between Worthen and New York Life and a loan from Lyon to Worthen. There is no legal obligation between Lyon and Worthen representing the $500,000 "loan" extended under the Government's theory. And the assumed 6% return on this putative loan—required by the audit to be recognized in the taxable year in question—will be realized only when and if Worthen exercises its options.
45
The Court of Appeals acknowledged that the rents alone, due after the primary term of the lease and after the mortgage has been paid, do not provide the simple 6% return which, the Government urges, Lyon is guaranteed, 536 F.2d, at 752. Thus, if Worthen chooses not to exercise its options, Lyon is gambling that the rental value of the building during the last 10 years of the ground lease, during which the ground rent is minimal, will be sufficient to recoup its investment before it must negotiate again with Worthen regarding the ground lease. There are simply too many contingencies, including variations in the value of real estate, in the cost of money, and in the capital structure of Worthen, to permit the conclusion that the parties intended to enter into the transaction as st uctured in the audit and according to which the Government now urges they be taxed.
46
It is not inappropriate to note that the Government is likely to lose little revenue, if any, as a result of the shape given the transaction by the parties. No deduction was created that is not either matched by an item of income or that would not have been available to one of the parties if the transaction had been arranged differently. While it is true that Worthen paid Lyon less to induce it to enter into the transaction because Lyon anticipated the benefit of the depreciation deductions it would have as the owner of the building, those deductions would have been equally available to Worthen had it retained title to the building. The Government so concedes. Tr. of Oral Arg. 22-23. The fact that favorable tax consequences were taken into account by Lyon on entering into the transaction is no reason for disallowing those consequences.15 We cannot ignore the reality that the tax laws affect the shape of nearly every business transaction. See Commissioner of Internal Revenue v. Brown, 380 U.S. 563, 579-580, 85 S.Ct. 1162, 14 L.Ed.2d 75 (1965) (Harlan, J., concurring). Lyon is not a corporation with no purpose other than to hold title to the bank building. It was not created by Worthen or even financed to any degree by Worthen.
47
The conclusion that the transaction is not a simple sham to be ignored does not, of course, automatically compel the further conclusion that Lyon is entitled to the items claimed as deductions. Nevertheless, on the facts, this readily follows. As has been noted, the obligations on which Lyon paid interest were its obligations alone, and it is entitled to claim deductions therefor under § 163(a) of the 1954 Code, 26 U.S.C. § 163(a).
48
As is clear from the facts, none of the parties to this sale-and-leaseback was the owner of the building in any simple sense. But it is equally clear that the facts focus upon Lyon as the one whose capital was committed to the building and as the party, therefore, that was entitled to claim depreciation for the consumption of that capital. The Government has based its contention that Worthen should be treated as the owner on the assumption that throughout the term of the lease Worthen was acquiring an equity in the property. In order to establish the presence of that growing equity, however, the Government is forced to speculate that one of the options will be exercised and that, if it is not, this is only because the rentals for the extended term are a bargain. We cannot indulge in such speculation in view of the District Court's clear finding to the contrary.16 We therefore conclude that it is Lyon's capital that is invested in the building according to the agreement of the parties, and it is Lyon that is entitled to depreciation deductions, under § 167 of the 1954 Code, 26 U.S.C. § 167. Cf. United States v. Chicago B. & Q. R. Co., 412 U.S. 401, 93 S.Ct. 2169, 37 L.Ed.2d 30 (1973).
IV
49
We recognize that the Government's position, and that taken by the Court of Appeals, is not without superficial appeal. One, indeed, may theorize that Frank Lyon's presence on the Worthen board of directors; Lyon's departure from its principal corporate activity into this unusual venture; the parallel between the payments under the building lease and the amounts due from Lyon on the New York Life mortgage; the provisions relating to condemnation or destruction of the property; the nature and presence of the several options available to Worthen; and the tax benefits, such as the use of double declining balance depreciation, that accrue to Lyon during the initial years of the arrangement, form the basis of an argument that Worthen should be regarded as the owner of the building and as the recipient of nothing more from Lyon than a $500,000 loan.
50
We however, as did the District Court, find this theorizing incompatible with the substance and economic realities of the transaction: the competitive situation as it existed between Worthen and Union National Bank in 1965 and the years immediately following; Worthen's undercapitalization; Worthen's consequent inability, as a matter of legal restraint, to carry its building plans into effect by a conventional mortgage and other borrowing; the additional barriers imposed by the state and federal regulators; the suggestion, forthcoming from the state regulator, that Worthen possess an option to purchase; the requirement, from the federal regulator, that the building be owned by an independent third party; the presence of several finance organizations seriously interested in participating in the transaction and in the resolution of Worthen's problem; the submission of formal proposals by several of those organizations; the bargaining process and period that ensued; the competitiveness of the bidding; the bona fide character of the negotiations; the three-party aspect of the transaction; Lyon's substantiality17 and its independence from Worthen; the fact that diversification was Lyon's principal motivation; Lyon's being liable alone on the successive notes to City Bank and New York Life; the reasonableness, as the District Court found, of the rentals and of the option prices; the substantiality of the purchase prices; Lyon's not being engaged generally in the business of financing; the presence of all building depreciation risks on Lyon; the risk borne by Lyon, that Worthen might default or fail, as other banks have failed; the facts that Worthen could "walk away" from the relationship at the end of the 25-year primary term, and probably would do so if the option price were more than the then-current worth of the building to Worthen; the inescapable fact that if the building lease were not extended, Lyon would be the full owner of the building, free to do with it as it chose; Lyon's liability for the substantial ground rent if Worthen decides not to exercise any of its options to extend; the absence of any understanding between Lyon and Worthen that Worthen would exercise any of the purchase options; the nonfamily and nonprivate nature of the entire transaction; and the absence of any differential in tax rates and of special tax circumstances for one of the parties—all convince us that Lyon has far the better of the case.18
51
In so concluding, we emphasize that we are not condoning manipulation by a taxpayer through arbitrary labels and dealings that have no economic significance. Such, however, has not happened in this case.
52
In short, we hold that where, as here, there is a genuine multiple-party transaction with economic substance which is compelled or encouraged by business or regulatory realities, is imbued with tax-independent considerations, and is not shaped solely by tax-avoidance features that have meaningless labels attached, the Government should honor the allocation of rights and duties effectuated by the parties. Expressed another way, so long as the lessor retains significant and genuine attributes of the traditional lessor status, the form of the transaction adopted by the parties governs for tax purposes. What those attributes are in any particular case will necessarily depend upon its facts. It suffices to say that, as here, a sale-and-leaseback, in and of itself, does not necessarily operate to deny a taxpayer's claim for deductions.19
53
The judgment of the Court of Appeals, accordingly, is reversed.
54
It is so ordered.
55
Mr. Justice WHITE dissents and would affirm the judgment substantially for the reasons stated in the opinion in the Court of Appeals for the Eighth Circuit. 536 F.2d 746 (1976).
56
Mr. Justice STEVENS, dissenting.
57
In my judgment the controlling issue in this case is the economic relationship between Worthen and petitioner, and matters such as the number of parties, their reasons for structuring the transaction in a particular way, and the tax benefits which may result, are largely irrelevant. The question whether a leasehold has been created should be answered by examining the character and value of the purported lessor's reversionary estate.
58
For a 25-year period Worthen has the power to acquire full ownership of the bank building by simply repaying the amounts, plus interest, advanced by the New York Life Insurance Company and petitioner. During that period, the economic relationship among the parties parallels exactly the normal relationship between an owner and two lenders, one secured by a first mortgage and the other by a second mortgage.1 If Worthen repays both loans, it will have unencumbered ownership of the property. What the character of this relationship suggests is confirmed by the economic value that the parties themselves have placed on the reversionary interest.
59
All rental payments made during the original 25-year term are credited against the option repurchase price, which is exactly equal to the unamortized cost of the financing. The value of the repurchase option is thus limited to the cost of the financing, and Worthen's power to exercise the option is cost free. Conversely, petitioner, the nominal owner of the reversionary estate, is not entitled to receive any value for the surrender of its supposed rights of ownership.2 Nor does it have any power to control Worthen's exercise of the option.3
60
"It is fundamental that 'depreciation is not predicated upon ownership of property but rather upon an investment in property.' No such investment exists when payments of the purchase price in accordance with the design of the parties yield no equity to the purchaser." Estate of Franklin v. Commissioner, 544 F.2d 1045, 1049 (CA 9 1976) (citations omitted; emphasis in original). Here, the petitioner has, in effect, been guaranteed that it will receive its original $500,000 plus accrued interest. But that is all. It incurs neither the risk of depreciation,4 nor the benefit of possible appreciation. Under the terms of the sale-leaseback, it will stand in no better or worse position after the 11th year of the lease—when Worthen can first exercise its option to repurchase—whether the property has appreciated or depreciated.5 And this remains true throughout the rest of the 25-year period.
61
Petitioner has assumed only two significant risks. First, like any other lender, it assumed the risk of Worthen's insolvency. Second, it assumed the risk that Worthen might not exercise its option to purchase at or before the end of the original 25-year term.6 If Worthen should exercise that right not to repay, perhaps it would then be appropriate to characterize petitioner as the owner and Worthen as the lessee. But speculation as to what might happen in 25 years cannot justify the present characterization of petitioner as the owner of the building. Until Worthen has made a commitment either to exercise or not to exercise its option,7 I think the Government is correct in its view that petitioner is not the owner of the building for tax purposes. At present, since Worthen has the unrestricted right to control the residual value of the property for a price which does not exceed the cost of its unamortized financing, I would hold, as a matter of law, that it is the owner.
62
I therefore respectfully dissent.
1
Worthen, as of June 30, 1967, had capital stock of $4 million and surplus of $5 million. During the period the building was under construction Worthen became a national bank subject to the supervision and control of the Comptroller of the Currency.
2
This arrangement appeared advisable and was made because purchases of materials by Worthen (which then had become a national bank) were not subject to Arkansas sales tax. See Ark.Stat.Ann. § 84-1904(l ) (1960); First Agricultural Nat. Bank v. Tax Comm'n, 392 U.S. 339, 88 S.Ct. 2173, 20 L.Ed.2d 1138 (1968). Sales of the building elements to Lyon also were not subject to state sales tax, since they were sales of real estate. See Ark.Stat.Ann. § 84-1902(c) (Supp.1977).
3
This, of course, is on the assumption that Worthen exercises its option to extend the building lease. If it does not, Lyon remains liable for the substantial rents prescribed by the ground lease. This possibility brings into sharp focus the fact that Lyon, in a very practical sense, is at least the ultimate owner of the building. If W rthen does not extend, the building lease expires and Lyon may do with the building as it chooses.
The Government would point out, however, that the net amounts payable by Worthen to Lyon during the building lease's extended terms, if all are claimed, would approximate the amount required to repay Lyon's $500,000 investment at 6% compound interest. Brief for United States 14.
4
These figures do not include uncontested adjustments not involved in this litigation.
5
Lyon here challenges this assertion on the grounds that it had the right and opportunities to sell the building at a greater profit at any time; the return to Lyon was not insubstantial and was attractive to a true investor in real estate; the 6% return was the minimum Lyon would realize if Worthen exercised one of its options, an event the District Court found highly unlikely; and Lyon would own the building and realize a greater return than 6% if Worthen did not exercise an option to purchase.
6
Lyon challenges this observation by pointing out that the District Court found the option prices to be the negotiated estimate of the parties of the fair market value of the building on the option dates and to be reasonable. App. 303, 299.
7
Lyon asserts that this statement is true only with respect to the total destruction or taking of the building on or after December 1, 1980. Lyon asserts that it, not Worthen, would receive the excess above the mortgage balance in the event of total destruction or taking before December 1, 1980, or in the event of partial damage or taking at any time. Id., at 408-410, 411.
8
Lyon concedes the accuracy of this statement, but asserts that it does not justify the conclusion that Lyon served merely as a conduit by which mortgage payments would be transmitted to New York Life. It asserts that Lyon was the sole obligor on the New York Life note and would remain liable in the event of default by Worthen. It also asserts that the fact the rent was sufficient to amortize the loan during the primary term of the lease was a requirement imposed by New York Life, and is a usual requirement in most long-term loans secured by a long-term lease.
9
As to this statement, Lyon asserts that the Court of Appeals ignored Lyon's right to sell the building to another at any time; the District Court's finding that the options to purchase were not likely to be exercised; the uncertainty that Worthen would renew the lease for 40 years; Lyon's right to lease to anyone at any price during the last 10 years of the ground lease; and Lyon's continuing ownership of the building after the expiration of the ground lease.
10
In response to this, Lyon asserts that the District Court found that the benefits of occupancy Worthen will enjoy are common in most long-term real estate leases, and that the District Court found that Lyon had motives other than tax savings in entering into the transaction. It also asserts that the net cash after-tax benefit would be $312,220, not $1.5 million.
11
Other factors relied on by the Court of Appeals, 536 F.2d, at 752, were the allocation of the investment credit to Worthen, and a claim that Lyon's ability to sell the building to a third party was "carefully circumscribed" by the lease agreements. The investment credit by statute is freely allocable between the parties, § 48(d) of the 1954 Code, 26 U.S.C. § 48(d), and the Government has not pressed either of these factors before this Court.
12
New York Life required Lyon, not Worthen, to submit financial statements periodically. See Note Purchase Agreement, App. 453-454, 458-459.
13
It may well be that the remedies available to New York Life against Lyon would be far greater than any remedy available to it against Worthen, which, as lessee, is liable to New York Life only through Lyon's assignment of its interest as lessor.
14
We are aware that accounting standards have changed significantly since 1968 and that the propriety of Worthen's and Lyon's methods of
disclosing the transaction in question may be a matter for debate under these new standards. Compare Accounting Principles Bd. Opinion No. 5, Reporting of Leases in Financial Statements of Lessee (1964), and Accounting Principles Bd. Opinion No. 7, Accounting for Leases in Financial Statements of Lessors (1966), with Financial Accounting Standards Board, Statement of Financial Accounting Standards No. 13, Accounting for Leases (1976). See also Comptroller of the Currency, Banking Circular No. 95 (Nov. 11, 1977), instructing that national banks revise their financial statements n accord with FASB Standard No. 13. Standard No. 13, however, by its terms, states, ¶ 78, that there are many instances where tax and financial accounting treatments diverge. Further, Standard No. 13 is nonapplicable with respect to a lease executed prior to January 1, 1977 (as was the Lyon-Worthen lease), until January 1, 1981. Obviously, Banking Circular No. 95 was not in effect in 1968 when the Lyon-Worthen lease was executed.
Then-existing pronouncements of the Internal Revenue Service gave Lyon very little against which to measure the transaction. The most complete statement on the general question of characterization of leases as sales, Rev.Rul. 55-540, 1955-2 Cum.Bull. 39, by its terms dealt only with equipment leases. In that ruling it was stated that the Service will look at the intent of the parties at the time the agreement was executed to determine the proper characterization of the transaction. Generally, an intent to enter into a conditional sales agreement will be found to be present if (a) portions of the rental payments are made specifically applicable to an equity acquired by the lessee, (b) the lessee will acquire a title automatically after certain payments have been made, (c) the rental payments are a disproportionately large amount in relation to the sum necessary to complete the sale, (d) the rental payments are above fair rental value, (e) title can be acquired at a nominal option price, or (f) some portion of the rental payments are identifiable as interest. See also Rev.Rul. 60-122, 1960-1 Cum.Bull. 56; Rev.Rul. 72-543, 1972-2 Cum.Bull. 87.
The Service announced more specific guidelines, indicating under what circumstances it would answer requests for rulings on leverage leasing transactions, in Rev.Proc. 75-21, 1975-1 Cum.Bull. 715. In general "[u]nless other facts and circumstances indicate a contrary intent," the Service will not rule that a lessor in a leveraged lease transaction is to be treated as the owner of the property in question unless (a) the lessor has
incurred and maintains a minimal investment equal to 20% of the cost of the property, (b) the lessee has no right to purchase except at fair market value, (c) no part of the cost of the property is furnished by the lessee, (d) the lessee has not lent to the lessor or guaranteed any indebtedness of the lessor, and (e) the lessor must demonstrate that it expects to receive a profit on the transaction other than the benefits received solely from the tax treatment. These guidelines are not intended to be definitive, and it is not clear that they provide much guidance in assessing real estate transactions. See Rosenberg & Weinstein, Sale-leasebacks: An analysis of these transactions after the Lyon decision, 45 J.Tax. 146, 147 n. 1 (1976).
15
Indeed, it is not inevitable that the transaction, as treated by Lyon and Worthen, will not result in more revenues to the Government rather than less. Lyon is gambling that in the first 11 years of the lease it will have income that will be sheltered by the depreciation deductions, and that it will be able to make sufficiently good use of the tax dollars preserved thereby to make up for the income it will recognize and pay taxes on during the last 14 years of the initial term of the lease and against which it will enjoy no sheltering deduction.
16
The general characterization of a transaction for tax purposes is a question of law subject to review. The particular facts from which the characterization is to be made are not so subject. See American Realty Trust v. United States, 498 F.2d 1194, 1198 (CA 4 1974).
17
Lyon's consolidated balance sheet on December 31, 1968, showed assets of $12,225,612, and total stockholders' equity of $3,818,671. Of the assets, the sum of $2,674,290 represented its then investment in the Worthen building. App. 587-588.
18
Thus, the facts of this case stand in contrast to many others in which the form of the transaction actually created tax advantages that, for one reason or another, could not have been enjoyed had the transaction taken another form. See, e. g., Sun Oil Co. v. Commissioner of Internal Revenue, 562 F.2d 258 (CA 3 1977) (sale-and-leaseback of land between taxpayer and tax-exempt trust enabled the taxpayer to amortize, through its rental deductions, the cost of acquiring land not otherwise depreciable). Indeed, the arrangements in this case can hardly be labeled as tax-avoidance techniques in light of the other rrangements being promoted at the time. See, e. g., Zeitlin, Tax Planning in Equipment-Leasing Shelters, 1969 So.Cal. Tax Inst. 621; Marcus, Real Estate Purchase-Leasebacks as Secured Loans, 2 Real Estate L.J. 664 (1974).
19
See generally Commissioner of Internal Revenue v. Danielson, 378 F.2d 771 (CA 3), cert. denied, 389 U.S. 858, 88 S.Ct. 94, 19 L.Ed.2d 123 (1967), on remand, 50 T.C. 782 (1968); Levinson v. Commissioner of Internal Revenue, 45 T.C. 380 (1966); World Publishing Co. v. Commissioner of Internal Revenue, 299 F.2d 614 (CA 8 1962); Northwest Acceptance Corp. v. Commissioner of Internal Revenue, 58 T.C. 836 (1972), aff'd, 500 F.2d 1222 (CA 9 1974); Cubic Corp. v. United States, 541 F.2d 829 (CA 9 1976).
1
"[W]here a fixed price, as in Frank Lyon Company, is designed merely to provide the lessor with a predetermined fixed return, the substantive bargain is more akin to the relationship between a debtor and creditor than between a lessor and lessee." Rosenberg & Weinstein, Sale-leasebacks: An analysis of these transactions after the Lyon decision, 45 J.Tax. 146, 149 (1976).
2
It is worth noting that the proposals submitted by two other potential investors in the building, see ante, at 564, did contemplate that Worthen would pay a price above the financing costs for acquisition of the leasehold interest. For instance, Goldman, Sachs & Company proposed that, at the end of the lease's primary term, Worthen would have the option to repurchase the property for either its fair market value or 20% of its original cost, whichever was the greater. See Brief for United States 8 n. 7. A repurchase option based on fair market value, since it acknowledges the lessor's equity interest in the property, is consistent with a lessor-lessee relationship. See Breece Veneer & Panel Co. v. Commissioner of Internal Revenue, 232 F.2d 319 (CA 7 1956); LTV Corp. v. Commissioner, 63 T.C. 39, 50 (1974); see generally Comment, Sale and Leaseback Transactions, 52 N.Y.U.L.Rev. 672, 688-689, n. 117 (1977).
3
The situation in this case is thus analogous to that in Corliss v. Bowers, 281 U.S. 376, 50 S.Ct. 336, 74 L.Ed. 916, where the Court held that the grantor of a trust who retains an unrestricted cost-free power of revocation remains the owner of the trust assets for tax purposes. Worthen's power to exercise its repurchase option is similar; the only restraints upon it are those normally associated with the repayment of a loan, such as limitations on the timing of repayment and the amount due at the stated intervals.
4
Petitioner argues that it bears the risk of depreciation during the primary term of the lease, because the option price decreases over time. Brief for Petitioner 29-30. This is clearly incorrect. Petitioner will receive $500,000 plus interest, and no more or less, whether the option is exercised as soon as possible or only at the end of 25 years. Worthen, on the other hand, does bear the risk of depreciation, since its opportunity to make a profit from the exercise of its repurchase option hinges on the value of the building at the time.
5
After the 11th year of the lease, there are three ways that the lease might be terminated. The property might be condemned, the building might be destroyed by act of God, or Worthen might exercise its option to purchase. In any such event, if the property had increased in value, the entire benefit would be received by Worthen and petitioner would receive only its $500,000 plus interest. See Reply Brief for Petitioner 8-9, n. 2.
6
The possibility that Worthen might not exercise its option is a risk for petitioner because in that event petitioner's advance would be amortized during the ensuing renewal lease terms, totaling 40 years. Yet there is a possibility that Worthen would choose not to renew for the full 40 years or that the burdens of owning a building and paying a ground rental of $10,000 during the years 2034 through 2044 would exceed the benefits of ownership. Ante, at 579.
7
In this case, the lessee is not "economically compelled" to exercise its option. See American Realty Trust v. United States, 498 F.2d 1194 (CA 4 1974). Indeed, it may be more advantageous for Worthen to let its option lapse since the present value of the renewal leases is somewhat less than the price of the option to repurchase. See Brief for United States 40 n. 26. But whether or not Worthen is likely to exercise the option, as long as it retains its unrestricted cost-free power to do so, it must be considered the owner of the building. See Sun Oil Co. v. Commissioner of Internal Revenue, 562 F.2d 258, 267 (CA 3 1977) (repurchase option enabling lessee to acquire leased premises by repaying financing costs indicative of lessee's equity interest in those premises).
In effect, Worthen has an option to "put" the building to petitioner if it drops in value below $500,000 plus interest. Even if the "put" appears likely because of bargain lease rates after the primary terms, that would not justify the present characterization of petitioner as the owner of the building.
| 1112
|
435 U.S. 647
98 S.Ct. 1338
55 L.Ed.2d 614
Wilson H. ELKINS, President, University of Maryland, Petitioner,v.Juan Carlos MORENO et al.
No. 77-154.
Argued Feb. 22, 1978.
Decided April 19, 1978.
Syllabus
It is the policy of the University of Maryland to grant "in-state" status for admission, tuition, and charge-differential purposes only to students who are domiciled in Maryland or, if a student is financially dependent on his parents, whose parents are domiciled in Maryland. In addition, the University may in some cases deny in-state status to students who do not pay the full spectrum of Maryland state taxes. Pursuant to this policy the University refused to grant in-state status to respondent nonimmigrant alien students, each of whom was dependent on a parent who held a "G-4 visa" (a nonimmigrant visa granted to officers or employees of international treaty organizations and members of their immediate families) and each of whom was named in that visa, on the ground that the holder of a G-4 visa cannot acquire Maryland domicile because such a visa holder is incapable of demonstrating an essential element of domicile—the intent to live permanently or indefinitely in Maryland. After unsuccessful appeals through University channels, respondents brought a class action in the Federal District Court for declaratory and injunctive relief against the University and its President (petitioner), alleging that the University's refusal to grant them in-state status violated the Due Process and Equal Protection Clauses of the Fourteenth Amendment. The District Court granted relief, but limited it to a declaration and injunction restraining the President from denying respondents the opportunity to establish in-state status solely because of an "irrebuttable presumption of non-domicile." The court held that such an irrebuttable presumption violated the Due Process Clause, finding that reasonable alternative procedures were available to make the crucial domicile determination and rejecting the University's claim that the Immigration and Nationality Act of 1952 and Maryland common law precluded G-4 aliens from forming the intent necessary to acquire domicile. The Court of Appeals affirmed. Held:
1. Although the University may consider factors other than domicile in granting in-state status, the record shows that respondents were denied such status because of the University's determination that G-4 aliens could not form the intent needed to acquire Maryland domicile. Therefore, this case is controlled by principles announced in Vlandis v. Kline, 412 U.S. 441, 93 S.Ct. 2230, 37 L.Ed.2d 63, as limited by Weinberger v. Salfi, 422 U.S. 749, 771, 95 S.Ct. 2457, 2469, 45 L.Ed.2d 522, 542, to those situations in which a State "purport[s] to be concerned with [domicile, but] at the same time den[ies] to one seeking to meet its test of [domicile] the opportunity to show factors clearly bearing on that issue." Pp. 658-660.
2. Before considering whether Vlandis, supra, should be overruled or further limited, proper concern for stare decisis as well as the Court's longstanding policy of avoiding unnecessary constitutional decisions requires that the necessity of a constitutional decision be shown, and no such showing has been made here because a potentially dispositive issue, the determination whether the University's irrebuttable presumption is universally true, turns on federal statutory law and state common law as to which there are no controlling precedents. Pp. 660-662.
3. Under federal law, G-4 aliens have the legal capacity to change domicile. Pp. 663-668.
(a) In the Immigration and Nationality Act, which was intended to be a comprehensive and complete code governing all aspects of admission of aliens to the United States, Congress expressly required that an immigrant seeking admission under certain nonimmigrant classifications maintain a permanent residence abroad which he has no intention of abandoning. Congress did not impose this restriction on G-4 aliens, and, given the comprehensive nature of the Act, the conclusion is inescapable that Congress' failure to impose such restrictions was deliberate and manifests a willingness to allow G-4 aliens to adopt the United States as their domicile (a willingness confirmed by Immigration and Naturalization Service regulations). But whether such an adoption would confer domicile in a State is a question to be decided by the State. Pp. 663-666.
(b) Under present federal law, therefore, a G-4 alien will not violate the Act, INS regulations, or the terms of his visa if he develops a subjective intent to stay in the United States indefinitely. Moreover, although a G-4 visa lapses on termination of employment with an international treaty organization, a G-4 alien would not necessarily have to leave the United States. There being no indication that the named respondents are subject to any adverse factor, such as fraudulent entry into, or commission of crime in, the United States, and given each named respondent's alleged length of residence (ranging from 5 to 15 years) in the country, it would appear that the status of each of them could be adjusted to that of a permanent resident without difficulty. Pp. 666-668.
4. Because of the Court's conclusions with respect to federal law, the question whether G-4 aliens can become domiciliaries of Maryland is potentially dispositive of this case and, since such question is purely a matter of state law on which there is no controlling precedent, the question is certified to the Maryland Court of Appeals for determination. Pp. 668-669.
4 Cir., 556 F.2d 573, question certified.
David H. Feldman, Baltimore, Md., for petitioner.
Alfred L. Scanlan, Jr., Baltimore, Md., for respondents.
Mr. Justice BRENNAN delivered the opinion of the Court.
1
Respondents, representing a class of nonimmigrant alien residents of Maryland,1 brought this action against the University of Maryland2 and its President, petitioner Elkins, alleging that the University's failure to grant respondents "in-state" status for tuition purposes violated various federal laws,3 the Due Process and Equal Protection Clauses of the Fourteenth Amendment, and the Supremacy Clause. The District Court held for respondents on the ground that the University's procedures for determining in-state status violated principles established in Vlandis v. Kline, 412 U.S. 441, 93 S.Ct. 2230, 37 L.Ed.2d 63 (1973), and the Court of Appeals affirmed. Moreno v. University of Maryland, 420 F.Supp. 541 (Md.1976), affirmance order, 556 F.2d 573 (CA4 1977). We granted certiorari to consider whether this decision was in conflict with Weinberger v. Salfi, 422 U.S. 749, 95 S.Ct. 2457, 45 L.Ed.2d 522 (1975). 434 U.S. 888, 98 S.Ct. 260, 54 L.Ed.2d 173 (1977).
2
Because we find that the federal constitutional issues in this case cannot be resolved without deciding an important issue of Maryland law "as to which it appears . . . there is no controlling precedent in the Court of Appeals of [Maryland]," Md.Cts. & Jud.Proc.Code Ann. § 12-601 (1974), we first decide some preliminary issues of federal law and then certify the question of state law set out infra, at 668-669, to the Maryland Court of Appeals.
3
* In 1973 the University of Maryland adopted a general policy statement with respect to "In-State Status for Admission, Tuition, and Charge-Differential Purposes." In relevant part, this statement provides:
4
"1. It is the policy of the University of Maryland to
5
grant in-state status for admission, tuition and charge-differential purposes to United States citizens, and to immigrant aliens lawfully admitted for permanent residence in accordance with the laws of the United States, in the following cases:
6
"a. Where a student is financially dependent upon a parent, parents, or spouse domiciled in Maryland for at least six consecutive months prior to the last day available for registration for the forthcoming semester.
7
"b. Where a student is financially independent for at least the preceding twelve months, and provided the student has maintained his domicile in Maryland for at least six consecutive months immediately prior to the last day available for registration for the forthcoming semester." Brief for Petitioner 7.
8
The term "domicile" is defined as "a person's permanent place of abode; namely, there must be demonstrated an intention to live permanently or indefinitely in Maryland." Id., at 8. The policy statement also sets out eight factors to be considered in determining domicile, of which one is whether a student, or the persons on whom he is dependent, pays "Maryland income tax on all earned income including all taxable income earned outside the State." Id., at 9.
9
In addition to establishing criteria for conferring in-state status, the general policy statement establishes an administrative regime in which a person seeking in-state status initially files documentary information setting out the basis for his claim of domicile. See id., at 8-9. If the claim is denied, the person seeking in-state status may appeal, first through a personal interview with a "campus classification officer," then to an "Intercampus Review Committee (IRC)," and finally to petitioner Elkins, as President of the University. See id., at 9-10.
II
10
In 1974, respondents Juan C. Moreno and Juan P. Otero applied for in-state status under the general policy statement. Each respondent was a student at the University of Maryland and each was dependent on a parent who held a "G-4 visa," that is, a nonimmigrant visa granted to "officers, or employees of . . . international organizations, and the members of their immediate families" pursuant to 8 U.S.C. § 1101(a)(15)(G)(iv) (1976 ed.).4 Initially, respondent Moreno was denied in-state status because "neither Mr. Manuel Moreno nor his son, Juan Carlos, are Maryland domiciliaries." Record 41. Respondent Otero was denied in-state status because he was neither a United States citizen nor an alien admitted for permanent residence. Id., at 80.
11
These respondents took a "consolidated appeal" to the IRC, which also denied them in-state status in a letter which stated:
12
"The differential in tuition for in-state and out-of-state fees is based upon the principle that the State of Maryland should subsidize only those individuals who are subject to the full scope of Maryland tax liability. Such taxes support in part the University. The University of Maryland's present classification policies rest upon this principle of cost equalization. In examining the particulars of your case it is felt that neither you nor your parents are subject to the full range of Maryland taxes (e. g., income tax) and therefore the University must classify you as out-of-state with the consequential higher tuition rate.
13
"You have raised the question of domicile. It is our opinion that a holder of a G-4 visa cannot acquire the requisite intent to reside permanently in Maryland, such intent being necessary to establish domicile." Id., at 51, 86.
14
A final appeal was made to President Elkins, who advised Moreno and Otero as follows:
15
"It is the policy of the University of Maryland to grant
16
in-state status for admission, tuition and charge-differential purposes only to United States citizens and to immigrant aliens lawfully admitted for permanent residence. Furthermore, such individuals (or their parents) must display Maryland domicile. This classification policy reflects the desire to equalize, as far as possible, the cost of education between those who support the University of Maryland through payment of the full spectrum of Maryland taxes, and those who do not. In reviewing these cases it does not appear that the parents pay Mary land income tax. It is my opinion, therefore, that the aforesaid purpose of the policy, as well as the clear language of the policy, requires the classification of Mr. Moreno and Mr. Otero as 'out-of-state.'
17
"The University's classification policy also distinguishes between domiciliaries and non-domiciliaries of Maryland. In this regard, it is my opinion, and the position of the University, that the terms and conditions of a G-4 nonimmigrant visa preclude establishing the requisite intent necessary for Maryland domicile. Thus, because Mr. Moreno and Mr. Otero are not domiciliaries of Maryland, and because of the underlying principle of cost equal zation, I am denying the requests for reclassification." App. 12A.
18
Respondent Clare B. Hogg's experience was similar. Her application for in-state status was initially rejected because:
19
"[T]he policy for the determination of in-state status limits the ability to establish an in-state classification to United States citizens and immigrant aliens admitted to the United States for permanent residence. As the person upon whom you are dependent holds a G-4 visa, and as you hold a G-4 visa, in my judgment you are not eligible for an in-state classification.
20
"Also, the person upon whom you are dependent does not pay Maryland income tax on all earned income, including income earned outside the state. I feel this further weakens your request for reclassification as this is an important criteria [sic ] in determination of domicile." Record 106.
However, the IRC stated on appeal:
21
"It is the opinion of the IRC that a holder of a nonimmigrant visa, including the G-4 visa you hold, cannot acquire the requisite intent to reside permanently in Maryland, such intent being necessary to establish domicile." Id., at 111.
22
No mention was made of failure to pay taxes or of respondents' nonimmigrant status. See ibid. Yet on final appeal to President Elkins, these reasons, as well as respondent Hogg's lack of domicile, were recited in a letter virtually identical to those sent respondents Moreno and Otero as grounds for denying in-state status. See App. 13A.
23
Unable to obtain in-state status through the University's administrative machinery, respondents filed a class action against the University and petitioner Elkins, seeking a declaration that the class should be granted in-state status and seeking permanently to enjoin the University from denying in-state status to any present or future class member on the ground that such class member or a parent on whom such class member might be financially dependent
24
"(a) is the holder of a G-4 visa; (b) pays no Maryland
25
State income tax on a salary or wages from an international organization under the provisions of an international treaty to which the United States is a party; or (c) is not domiciled in the State of Maryland by reason of holding such a visa or paying no Maryland State income tax on such salary or wages under the provisions of such a treaty." Id., at 11A.
26
The District Court, on cross-motions for summary judgment, limited the relief granted to a declaration and enforcing injunction restraining petitioner Elkins from denying respondents "the opportunity to establish 'in-state' status" solely because of an "irrebuttable presumption of non-domicile." 420 F.Supp., at 565. The court specifically refused to grant respondents in-state status, holding that the facts with respect to the respondents' fathers, on whom each respondent was dependent, were in dispute. Id., at 564-565. Similarly, the court did not indicate whether the University could or could not exclude respondents because their fathers paid no Maryland state income taxes.5
27
With respect to the "irrebuttable presumption" issue, the District Court first held that, although each respondent had been allowed to submit a complete statement of facts supporting his or her claim of domicile to University authorities, there had been no individualized hearing because the University had a "predetermined conclusion concerning the domicile of a G-4 alien," id., at 555, namely, that a G-4 could not have the requisite intent to establish domicile. It then ruled that aliens holding G-4 visas could as a matter of Maryland common law become Maryland domiciliaries so long as such aliens were legally capable of changing domicile as a matter of federal law. See id., at 555-556. An examination of the Immigration and Nationality Act of 1952, 66 Stat. 163, as amended, 8 U.S.C. § 1101 et seq., demonstrated that G-4 aliens, as distinguished from some other classes of aliens, had the legal capacity to change domicile as a matter of federal law. See 420 F.Supp., at 556-559. Accordingly, the University's irrebuttable presumption that G-4 aliens could not become Maryland domiciliaries was not universally true. Since "reasonable alternative means of making the crucial [domicile] determination," Vlandis v. Kline, 412 U.S., at 452, 93 S.Ct., at 2236, were readily at hand, the University's policy violated the Due Process Clause of the Fourteenth Amendment. See 420 F.Supp., at 559-560. These conclusions were affirmed by the Court of Appeals for the Fourth Circuit, which adopted the reasoning of the District Court. App. to Pet. for Cert. 54a-55a.
III
A.
28
In this Court, petitioner argues that the University's in-state policy should have been tested under standards set out in Weinberger v. Salfi, 422 U.S. 749, 95 S.Ct. 2457, 45 L.Ed.2d 522 (1975), and its progeny, since in petitioner's view these cases have effectively overruled Vlandis. As an alternative argument, petitioner asserts that the District Court should be reversed because its conclusions on points of Maryland and federal law were erroneous and in fact it is universally true that a G-4 visa holder cannot become a Maryland domiciliary.
29
Respondents reply that Vlandis was distinguished, not overruled, by Salfi, and, as distinguished, Vlandis covers this case. Moreover, they assert that the District Court correctly interpreted federal and Maryland law. Because the University's policy would on this view discriminate against a class of aliens who could become Maryland domiciliaries, they also argue, as they did in the District Court,6 that they should prevail on equal protection grounds even if they cannot prevail under Vlandis.7 Cf. Nyquist v. Mauclet, 432 U.S. 1, 97 S.Ct. 2120, 53 L.Ed.2d 63 (1977).
30
Although the parties argue this case in terms of due process, equal protection, and Vlandis versus Salfi, the gravamen of their dispute is unquestionably whether, as a matter of federal and Maryland law, G-4 aliens can form the intent necessary to allow them to become domiciliaries of Maryland. The University has consistently maintained throughout this litigation that, notwithstanding other possible interpretations of its policy statement, its "paramount" and controlling concern is with domicile as defined by the courts of Maryland.8 It has eschewed any interest in creating a classwide exclusion based solely on nonimmigrant status9 or, apparently, on the fact that many G-4 aliens receive earned income that is exempt from Maryland taxation.10 Because petitioner makes domicile the "paramount" policy consideration and because respondents' contention is that they can be domiciled in Maryland but are conclusively presumed to be unable to do so, this case is squarely within Vlandis as limited by Salfi to those situations in which a State "purport[s] to be concerned with [domicile, but] at the same time den[ies] to one seeking to meet its test of [domicile] the opportunity to show factors clearly bearing on that issue." Weinberger v. Salfi, 422 U.S., at 771, 95 S.Ct., at 2470.11
31
If we are to reverse the courts below, therefore, we must overrule or further limit Vlandis as, of course, petitioner has asked us to do. Before embarking on a review of the constitutional principles underlyingVlandis, however, proper concern for stare decisis joins with our long-standing policy of avoiding unnecessary constitutional decisions to counsel that a decision on the continuing vitality of Vlandis be avoided unless it is really necessary. See, e. g., Bellotti v. Baird, 428 U.S. 132, 146-151, 96 S.Ct. 2857, 2865-2868, 49 L.Ed.2d 844 (1976); Reetz v. Bozanich, 397 U.S. 82, 90 S.Ct. 788, 25 L.Ed.2d 68 (1970); Harman v. Forssenius, 380 U.S. 528, 534, 85 S.Ct. 1177, 1181, 14 L.Ed.2d 50, 55 (1965); Harrison v. NAACP, 360 U.S. 167, 177, 79 S.Ct. 1025, 1030, 3 L.Ed.2d 1152 (1959); Railroad Com 'n v. Pullman Co., 312 U.S. 496, 61 S.Ct. 643, 85 L.Ed. 971 (1941); cf. Ashwander v. TVA, 297 U.S. 288, 346-347, 56 S.Ct. 466, 482-483, 80 L.Ed. 688, 710-711 (1936) (Brandeis, J., concurring). So far, no such showing of necessity has been made out:12 If G-4 aliens cannot become domiciliaries, then respondents have no due process claim under either Vlandis or Salfi for any "irrebuttable presumption" would be universally true. On the other hand, the University apparently has no interest in continuing to deny in-state status to G-4 aliens as a class if they can become Maryland domiciliaries since it has indicated both here and in the District Court that it would redraft its policy "to accommodate" G-4 aliens were the Maryland courts to hold that G-4 aliens can have the requisite intent.13 Accordingly, the question whether G-4 aliens have the capacity to acquire Maryland domicile is potentially dispositive of this case. Since the resolution of this question turns on federal statutory law and Maryland common law as to each of which there are no controlling precedents,14 we first set out the correct meaning of federal law in this area and then sua sponte certify15 this case to the Court of Appeals of Maryland in order to clarify state-law aspects of the domicile question.16
B
32
Petitioner has argued, and respondents do not appear to disagree, that, if as a matter of federal law a nonimmigrant alien is required to maintain a permanent residence abroad or must state that he will leave the United States at a certain future date, then such an alien's subjective intent to reside permanently or indefinitely in a State would not create the sort of intent needed to acquire domicile. It is not clear whether this argument is based on an understanding of the common law of Maryland defining intent or whether it is based on an argument that federal law creates a "legal disability," see Restatement (Second) of Conflict of Laws § 15(1) (1971), which States are bound to recognize under the Supremacy Clause. See Nyquist v. Mauclet, 432 U.S., at 4, 97 S.Ct. at 2123; id., at 20 n. 3, 97 S.Ct. at 2131 (Rehnquist, J., dissenting); Seren v. Douglas, 30 Colo.App. 110, 114-115, 489 P.2d 601, 603 (1971) (semble); Gosschalk v. Gosschalk, 48 N.J.Super. 566, 574-575, 138 A.2d 774, 779 (semble), aff'd, 28 N.J. 73, 145 A.2d 327 (1958); Gosschalk v. Gosschalk, 28 N.J. 73, 75-82, 145 A.2d 327, 328-331 (1958) (dissenting opinion). But cf. Williams v. Williams, 328 F.Supp. 1380, 1383 (D.C.V.I.1971). In any case, we need not decide the effect of a federal law restricting nonimmigrant aliens postulated above, since it is clear that Congress did not require G-4 aliens to maintain a permanent residence abroad or to pledge to leave the United States at a date certain.
33
After extensive study, Congress passed the Immigration and Nationality Act of 1952, 66 Stat. 163, as amended, 8 U.S.C. § 1101 et seq. (1976 ed.), as a comprehensive and complete code covering all aspects of admission of aliens to this country, whether for business or pleasure, or as immigrants seeking to become permanent residents. See H.R.Rep.No.1365, 82d Cong., 2d Sess., 27 (1952); S.Rep.No.1137, 82d Cong., 2d Sess., 1-2 (1952), U.S.Code Cong. & Admin.News 1952, p. 1653. As amended in 1976, the Act establishes two immigration quotas, one for the Eastern and one for the Western Hemisphere.17 The object of the quotas is to limit the number of aliens who can be admitted to the United States for permanent residence. To this end, the Act divides aliens into two classes. The first class, immigrant aliens, includes every alien who does not fall into an exclusion establi hed by § 101(a)(15) of the Act, 66 Stat. 167, as amended, 8 U.S.C. § 1101(a)(15) (1976 ed.). Except for immigrant aliens who are "immediate relatives of the United States citizens" or "special immigrants defined in section 101(a)(27),"18 each alien admitted for permanent residence or who later becomes eligible for permanent residence is chargeable against a quota and no alien can be granted permanent residence status unless a quota allocation is available.19 However, it is important to note that there is no requirement in the Act that an immigrant alien have an intent to stay permanently in the United States.
34
The second class of aliens, nonimmigrant aliens, is established by § 101(a)(15) of the Act. This section creates 12 subcategories of aliens who may come to the United States without need for a quota allocation. See §§ 101(a)(15)(A)—(L). Congress defined nonimmigrant classes to provide for the needs of international diplomacy, tourism, and commerce, each of which requires that aliens be admitted to the United States from time to time and all of which would be hampered if every alien entering the United States were subject to a quota and to the more strict entry conditions placed on immigrant aliens.20
35
Although nonimmigrant aliens can generally be viewed as temporary visitors to the United States, the nonimmigrant classification is by no means homogeneous with respect to the terms on which a nonimmigrant enters the United States. For example, Congress expressly conditioned admission for some purposes on an intent not to abandon a foreign residence or, by implication, on an intent not to seek domicile in the United States. Thus, the 1952 Act defines a visitor to the United States as "an alien . . . having a residence in a foreign country which he has no intention of abandoning" and who is coming to the United States for business or pleasure. § 101(a)(15)(B). Similarly, a nonimmigrant student is defined as "an alien having a residence in a foreign country which he has no intention of abandoning . . . and who seeks to enter the United States temporarily and solely for the purpose of pursuing . . . a course of study . . .." § 101(a)(15)(F). See also § 101(a)(15)(C) (aliens in "immediate and continuous transit"); § 101(a)(15)(D) (vessel crewman "who intends to land temporarily"); § 101(a)(15)(H) (temporary worker having residence in foreign country "which he has no intention of abandoning").
36
By including restrictions on intent in the definition of some nonimmigrant classes, Congress must have meant aliens to be barred from these classes if their real purpose in coming to the United States was to immigrate permanently. Moreover, since a nonimmigrant alien who does not maintain the conditions attached to his status can be deported, see § 241(a)(9) of the 1952 Act, 66 Stat. 206, 8 U.S.C. § 1251(a)(9) (1976 ed.), it is also clear that Congress intended that, in the absence of an adjustment of status (discussed below), nonimmigrants in restricted classes who sought to establish domicile would be deported.
37
But Congress did not restrict every nonimmigrant class. In particular, no restrictions on a nonimmigrant's intent were placed on aliens admitted under § 101(a)(15)(G)(iv).21 Since the 1952 Act was intended to be a comprehensive and complete code, the conclusion is therefore inescapable that, where as with the G-4 class Congress did not impose restrictions on intent, this was deliberate. Congress' silence is therefore pregnant, and we read it to mean that Congress, while anticipating that permanent immigration would normally occur through immigrant channels, was willing to allow nonrestricted nonimmigrant aliens to adopt the United States as their domicile. Congress' intent is confirmed by the regulations of the Immigration and Naturalization Service, which provide that G-4 aliens are admitted for an indefinite period—so long as they are recognized by the Secretary of State to be employees or officers (or immediate family members of such employees or officers) of an international treaty organization. See 8 CFR § 214.2(g) (1977); 1 C. Gordon & H. Rosenfield, Immigration Law and Procedure § 2.13b, p. 2-101 (rev. ed. 1977). Whether such an adoption would confer domicile in a State would, of course, be a question to be decided by the State.
38
Under present law, therefore, were a G-4 alien to develop a subjective intent to stay indefinitely in the United States he would be able to do so without violating either the 1952 Act, the Service's regulations, or the terms of his visa. Of course, should a G-4 alien terminate his employment with an international treaty organization, both he and his family would lose their G-4 status. Ibid. Nonetheless, such an alien would not necessarily be subject to deportation nor would he have to leave and re-enter the country in order to become an immigrant.
39
Beginning with the 1952 Act, Congress created a mechanism, "adjustment of status," through which an alien already in the United States could apply for permanent residence status. See § 245 of the 1952 Act, 66 Stat. 217, as amended, 8 U.S.C. § 1255 (1976 ed.).22 Prior to that time, aliens in the United States who were not immigrants had to leave the country and apply for an immigrant visa at a consulate abroad. See 2 Gordon & Rosenfield, supra, at § 7.7. Although adjustment of status is a matter of grace, not right, the most recent binding decision23 of the Board of Immigration Appeals states:
40
"Where adverse factors are present in a given application, it may be necessary for the applicant to offset these by a showing of unusual or even outstanding equities. Generally, favorable factors such as family ties, hardship, length of residence in the United States, etc., will be considered as countervailing factors meriting favorable exercise of administrative discretion. In the absence of adverse factors, adjustment will ordinarily be granted, still as a matter of discretion." Matter of Arai, 13 I. & N.Dec. 494, 496 (1970) (emphasis added), modifying Matter of Ortiz-Prieto, 11 I. & N.Dec. 317 (BIA 1965).
41
The adverse factors referred to by the Board include such things as entering the United States under fraudulent circumstances24 or committing crimes while in the United States.25 There is no indication that any named respondent is subject to any such adverse factor, and, given each named respondent's alleged length of residence in the United States26 it would appear that any respondent could adjust his or her status to that of a permanent resident without difficulty.27
C
42
For the reasons stated above, the question whether G-4 aliens can become domiciliaries of Maryland is potentially dispositive of this case and is purely a matter of state law. Therefore, pursuant to Subtit. 6 of Tit. 12 of the Md.Cts. & Jud.Proc.Code,28 the following question is certified to the Court of Appeals of Maryland:
43
"Are persons residing in Maryland who hold or are named
44
in a visa under 8 U.S.C. § 1101(a)(15)(G)(iv) (1976 ed.), or who are financially dependent upon a person holding or named in such a visa, incapable as a matter of state law of becoming domiciliaries of Maryland?"29
45
So ordered.
*
46
Mr. Justice REHNQUIST, with whom THE CHIEF JUSTICE joins, dissenting.
47
The University of Maryland, like all state universities, differentiates in tuition between "in-state" and "out-of-state" students. The two categories of students are delineated in the University's general policy statement on "In-State Status for Admission, Tuition, and Charge-Differential Purposes." Part 1 of the policy statement provides:
48
"It is the policy of the University of Maryland to grant
49
in-state status for admission, tuition and charge-differential purposes to United States citizens, and to immigrant ialiens lawfully admitted for permanent residence in accordance with the laws of the United States, in the following cases:
50
"a. Where a student is financially dependent upon a parent, parents, or spouse domiciled in Maryland for at least six consecutive months prior to the last day available for registration for the forthcoming semester[, or]
51
"b. Where a student is financially independent for at least the preceding twelve months, and provided the student has maintained his domicile in Maryland for at least six consecutive months immediately prior to the last day available for registration for the forthcoming semester." Brief for Petitioner 7 (emphasis added).
52
As is clear from the policy statement, domicile is not the sole criterion upon which the University of Maryland determines "in-state" tuition status. The University first looks to see whether the student is either a "United States citizen" or an "immigrant alien lawfully admitted for permanent residence"; if the student satisfies this initial requirement, the University must then determine whether the student (or his parents) are domiciled in Maryland.
53
Respondents are nonimmigrant aliens who hold G-4 visas. Pursuant to the University's tuition policy, they were denied lower in-state tuition rates despite the fact that they and their parents reside in Maryland. As explained by the Assistant Director of Admissions in a letter to respondent Clare B. Hogg, the principal reason for classifying respondents as out-of-state students for purposes of tuition was nonimmigrant status; as a secondary factor, the Assistant Director of Admissions noted that respondents would probably not be able to pass the second hurdle of domicile:1
54
"[T]he policy for determination of in-state status limits the ability to establish an in-state classification to United States citizens and immigrant aliens admitted to the United States for permanent residence. As the person upon whom you are dependent holds a G-4 visa, and as you hold a G-4 visa, in my judgment you are not eligible for an in-state classification.
55
"Also, the person upon whom you are dependent does not pay Maryland income tax on all earned income, including income earned outside the state. I feel this further weakens your request for reclassification as this is an important criteria in determination of domicile." Record 106.
56
Respondents brought suit in federal court alleging that the University's in-state tuition policy is, among other things, in violation of the Due Process and Equal Protection Clauses of the Fourteenth Amendment. The District Court for the District of Maryland held that the University's policy creates an irrebuttable presumption in contravention of Vlandis v. Kline, 412 U.S. 441, 93 S.Ct. 2230, 37 L.Ed.2d 63 (1973). The Court of Appeals for the Fourth Circuit affirmed. We granted certiorari to decide whether the lower courts were correct in their holding.
57
The Court, rather than deciding the due process issue upon which certiorari was granted, today certifies the following question to the Court of Appeals of Maryland:2
58
"Are persons residing in Maryland who hold or are named
59
in a visa under 8 U.S.C. § 1101(a)(15)(G)(iv) (1976 ed.), or who are financially dependent upon a person holding or named in such a visa, incapable as a matter of state law of becoming domiciliaries of Maryland?"
60
I would unhesitatingly join the Court's certification if I felt that resolution of the question posed to the Court of Appeals of Maryland were necessary to decide the issue before us. But I am convinced that we can decide the due process issue without resolution of Maryland domicile law and thus that certification will only result in needless delay.
61
The University apparently classifies nonimmigrant aliens as out-of-state students for a number of reasons. All parties agree that a major factor is the University's conclusion that nonimmigrant aliens lack the legal capacity to become Maryland domiciliaries for tuition purposes. But this is not the only consideration underlying the classification, as is evidenced by the fact that citizenship or immigrant status is a requirement separate from and preceding domicile. According to the President of the University of Maryland, for example, the classification policy also "reflects the desire to equalize, as far as possible, the cost of education between those who support the University of Maryland through payment of the full spectrum of Maryland taxes, and those who do not." App. 12A. Holders of G-4 nonimmigrant visas are exempt from state income tax. By charging such nonimmigrant aliens higher out-of-state tuition, the University is able to better "equalize" the cost of education.3
62
Because the University's conclusion as to domicile plays a major role in its decision not to award nonimmigrant aliens in-state tuition status, counsel for petitioner admitted at oral argument that "it is entirely possible that the university would change its policy" in the face of a contrary decision by the Maryland Court of Appeals. Tr. of Oral Arg. 9. But a change in the University's in-state tuition policy would be neither automatic nor inescapable. The University might still decide that the other considerations such as cost equalization by themselves dictate continuation of the current policy. According to counsel for petitioner, "that judgment is one that would be made by the regents, and [as] I have suggested previously . . . it is well within the discretion of the regents." Id., at 15.
63
The above facts clearly establish that the University of Maryland has not created an irrebuttable presumption. The University has not determined that domicile is the sole relevant factor in determining tuition rates and then prevented respondents from presenting proof on the question of domicile.4 Instead, the University has decided that, for a number of reason including domicile and cost equalization, nonimmigrant aliens should pay a higher tuition rate than citizens and immigrant aliens who are domiciled in the State. A student is allowed to present any and all evidence relevant to his or her status as a citizen or immigrant alien. In Vlandis v. Kline, this Court held only that where a State "purport[s ] to be concerned with residency, it might not at the same time deny to one seeking to meet its test of residency the opportunity to show factors clearly bearing on that issue. 412 U.S., at 452, 93 S.Ct., at 2236." Weinberger v. Salfi, 422 U.S. 749, 771, 95 S.Ct. 2457, 2470, 45 L.Ed.2d 522, 542 (1975) (emphasis added).5 Here, the University of Maryland's classification policy
64
"does not purport to speak in terms of the bona fides of [domicile], but then make plainly relevant evidence of such bona fides inadmissible. As in Starns v. Malkerson, 326 F.Supp. 234 (D.C.Minn.1970), summarily aff'd, 401 U.S. 985, 91 S.Ct. 1231, 28 L.Ed.2d 527 (1971), the benefits here are available upon compliance with an objective criterion, one which the Legislature considered to bear a sufficiently close nexus with underlying policy objectives to be used as the test for eligibility. Like the plaintiffs in Starns, [respondents] are completely free to present evidence that they meet the specified requirements; failing in this effort, their only constitutional claim is that the test they cannot meet is not so rationally related to a legitimate legislative objective that it can be used to deprive them of benefits available to those who do satisfy that test." Id., at 772, 95 S.Ct., at 2470.
65
Because it is clear that the University of Maryland has not created an irrebuttable presumption of non-Maryland domicile, it is unnecessary to decide, as the Court apparently believes it is, whether "any 'irrebuttable presumption' would be universally true." Ante, at 661. And while the case may become moot if the Court of Appeals of Maryland decides that holders of G-4 visas can establish Maryland domicile and if the University changes its policy in light of that decision, the case is not moot now and there is no certainty that it will become moot in the future. There is, in summary, nothing today that prevents the Court from deciding the question presented.6
66
While I cannot join in what I view as a needless and time-consuming certification, I do join in the Court's implied disapproval of the District Court's refusal to refer to Maryland courts the question of whether holders of G-4 visas can establish Maryland domicile. Upon concluding that the University's policy creates an irrebuttable presumption, the District Court was faced with the question of whether the presumption is universally true. The District Court proceeded to answer the question in the negative and enjoin the University's policy, even though petitioner had asked the District Court either to abstain or, apparently, to certify the question of domicile to the Court of Appeals of Maryland.7 Because the Court of Appeals of Maryland had never addressed the question of domicile, petitioner's request should have been granted. By deciding the question itself, the District Court risked invalidating a state policy that a later decision of the Maryland state courts might establish was clearly valid. Furthermore, as the Court emphasizes, "it is obviously desirable that questions of law which, like domicile, are both intensely local and immensely important to a wide spectrum of state government activities be decided in the first instance by state courts." Ante, at 663 n. 16.
67
In summary, I agree with the Court that important and controlling issues of state law should initially be decided by state, not federal, courts. But because I do not believe that resolution of the Maryland law of domicile is necessary to decide the due process question before us, I dissent from today's certification.8
1
The class certified by the District Court differs from that alleged in the complaint. As certified, the class is defined as:
"All persons now residing in Maryland who are current students at the University of Maryland, or who chose not to apply to the University of Maryland because of the challenged policies but would now be interested in attending if given an opportunity to establish in-state status, or who are currently students in senior high schools in Maryland, and who
"(a) hold or are named within a visa under 8 U.S.C. § 1101(a)(15)(G)(iv) or are financially dependent upon a person holding or named within such a visa." Moreno v. University of Maryland, 420 F.Supp. 541, 564 (Md.1976).
2
The University was dismissed from the suit on the authority of Monroe v. Pape, 365 U.S. 167, 81 S.Ct. 473, 5 L.Ed.2d 492 (1961). See 420 F.Supp., at 548-550.
3
The complaint alleged that petitioner's conduct violated 42 U.S.C. §§ 1981, 1983, 2000a, 2000a-1, 2000a-3, 2000d. App. 3A. Jurisdiction was predicated on 28 U.S.C. §§ 1343(3), 1343(4). The District Court proceeded on the premise that 42 U.S.C. § 1983 and the cited sections of Title 28 gave jurisdiction and a cause of action. See 420 F.Supp., at 548. Neither of these rulings is now in dispute.
4
"(15) The term 'immigrant' means every alien except an alien who is within one of the following classes of nonimmigrant aliens—
"(G) . . . (iv) officers, or employees of . . . international organizations [recognized under the International Organizations Immunities Act, 59 Stat. 669, 22 U.S.C. § 288 et seq.], and the members of their immediate families."
Respondents Moreno and Otero are dependents of employees of the Inter-American Development Bank. App. 6A, 7A. Respondent Hogg is the dependent of an employee of the International Bank for Reconstruction and Development. Id., at 9A. The complaint states that respondent Moreno has resided in Maryland for 15 years, Otero for 10 years, and Hogg for five years. Id., at 4A.
5
The District Court did not set out reasons for denying this relief. However, it must have believed that the University would not exclude respondents from in-state status solely for cost-equalization reasons if they otherwise qualified for Maryland domicile. If this was not the case, the District Court could not, as it did, see 420 F.Supp., at 560, have found it unnecessary to pass on respondents' argument that the Supremacy Clause prohibits the States from penalizing those who seek to avail themselves of tax exemptions granted by federal treaties. Moreover, an examination of the pleadings before the District Court strongly suggests that, notwithstanding the correspondence set out above, the University has disavowed any intention to exclude respondents from in-state status solely because they, or the persons on whom they are dependent, paid no state income taxes. Thus, the University unequivoclly denied respondents' allegation that
"(b) students whose parents do not pay Maryland income taxes on income earned from an international organization under the provisions of an international treaty . . . may not be granted in-state status because of the 'principle of cost equalization' and because the University's 'policy reflects the desire to equalize, as far as possible, the cost of education between those who support the University of Maryland through payment of the full spectrum of Maryland taxes, and those who do not' . . . ." App. 5A (Complaint ¶ 13(b)).
See App. 16A (Answer ¶ 13). The University similarly disavowed any intent to exclude respondents solely on the basis of failure to pay state income taxes in its responses to respondents' requests for admission. See Record 134 (¶ 2(d)) (denying that tax exemption given some G-4 visaholders is "relevant to the determination made pursuant to the . . . University of Maryland policy"); id., at 135 (¶ 3(d)) (same); id., at 139 (¶ 6(d)) (same); id., at 136 (¶ 4(d)) (denying the relevance for in-state tuition purposes of the fact that a person may pay Maryland state taxes on less than 50% of his earned income); id., at 141 (¶ 8(d)) (same); id., at 142 (¶ 9(d)) (same); id., at 140 (¶ 7(d)) (denying the relevance for in-state tuition purposes of the fact that a person may pay Maryland state taxes on only "unearned" income). Finally, the University admitted as fact that
"an 'immigrant student' who is financially dependent upon a parent who is an immigrant lawfully admitted for permanent residence . . . may be granted in-state status, whether or not the parent on whom such student is financially dependent currently pays Maryland income tax, provided that such parent can exhibit all of the other relevant domiciliary criteria . . . ." Id., at 142.
Since no party has suggested a difference between immigrant and nonimmigrant aliens other than the possibility that the latter cannot become domiciliaries, the University's admission tends to confirm that the tax issue is not determinative of in-state status for any group of aliens.
For the reasons set out above, we, like the District Court, do not now decide whether the University would be barred by the Supremacy Clause from denying in-state status on tax grounds.
6
The District Court did not pass on the equal protection argument. See 420 F.Supp., at 560.
7
The respondents also argue that the University's policy is invalid under the Supremacy Clause since control over aliens and over foreign relations is vested exclusively in the Federal Government. We have no need to reach this argument at this time.
8
Petitioner will be surprised to learn from the dissent, see post, at 672-676, that the University's treatment of respondents is not really determined by the Maryland common law of domicile and therefore that this case is governed by Weinberger v. Salfi, 422 U.S. 749, 95 S.Ct. 2457, 45 L.Ed.2d 522 (1975), not Vlandis v. Kline, 412 U.S. 441, 93 S.Ct. 2230, 37 L.Ed.2d 63 (1973). For petitioner's view of the University's policy, contrary to that suggested by the dissent, has consistently been: "The Defendant University distinguishes between domiciliaries and non-domiciliaries of the State of Maryland . . . . This represents a policy decision of the Board of Regents of the University, which has been implemented in the rules and guidelines of the Policy Statement . . .." Record 215 (emphasis added). And again: "The wording of the 'In-State' policy is structured so as to initially deny 'in-state' status to non-immigrant aliens. This structure incorporates the determination that under the law and definition of domicile as established and applied by Maryland courts, non-immigrant aliens cannot display the intent to permanently reside within the State which is requisite to establishing Maryland domicile." Id., at 217 (emphasis added). And again: "[The University's] actions and policy rest upon a definition, not a presumption. Defendants have denied Plaintiffs 'in-state' status based on an evaluation of their domicile under Maryland law: the existence of a G-4 visa is merely a single operative fact, albeit paramount, which is placed in the context of what Defendants have determined to be the definition of domicile established by the Maryland courts." Id., at 231 (second emphasis added). And again: "This distinction [between immigrant and nonimmigrant aliens] was based upon a reading of the Maryland law of domicile in conjunction with the terms and conditions of the non-immigrant visas described in 28 [sic ] U.S.C. § 1101(a)(15)(A) through (L), a determination thereby having been made that non-immigrants do not have the intent requisite for establishing Maryland domicile. . . . That State University's [sic ] can establish such . . . 'domicile' policies and make distinctions between domiciliaries and non-domiciliaries is well established . . .." Id., at 233.
Indeed, respondents argued below against abstention, see n. 15, infra, on the same grounds now argued by our Brother Rehnquist against certification, namely: "[T]he Maryland common law of domicile is not at issue in this case. No 'clarification' of the Maryland common law of domicile is needed. Such common law principles, standing alone, do not set the tuition charged by the University of Maryland." Record 272. And petitioner countered: "What [respondents] apparently fail to understand is that the [University's] 'In-State Policy' is structured upon and reflects [the University's] understanding of the Maryland common law of domicile." Id., at 340.
9
There can be no doubt that, notwithstanding the policy statement's express reservation of in-state status to United States citizens and immigrant aliens, see supra, at 651, the University has no policy of excluding nonimmigrant aliens simply because they lack immigrant status under federal law. Petitioner's answer unequivocally states that the University has not "denied" nor does it "continu[e] to deny in-state status to all students who neither are United States citizens nor hold immigrant visas," App. 16A, although such an across-the-board denial would be required by the University's policy if it placed independent significance on immigrant status. Moreover, petitioner tells us that "the fact of alienage is completely irrelevant in itself to the issues controlling a determination of domicile." Record 232.
10
See n. 5, supra. Indeed, although the dissent suggests that petitioner might bar respondents on cost-equalization grounds, see post, at 672-673, it is clear that petitioner has not done this although nothing in the District Court's injunction prohibits petitioner from doing so. See supra, at 655-656, and n. 5.
11
In fact, the University allows evidence to be submitted bearing on respondents' claims of domicile—it simply does not evaluate that evidence.
12
Moreover, respondents' equal protection claim turns on whether it is in fact true that G-4 aliens can become domiciliaries of Maryland. If they cannot, the constitutional issues that would be raised are materially different from those briefed or argued here. For this reason, we also think certification proper. See, e. g., Bellotti v. Baird, 428 U.S. 132, 146-151, 96 S.Ct. 2857, 2865-2868, 49 L.Ed.2d 844 (1976).
13
"The core of Plaintiffs' cause of action is their belief that under Maryland law a G-4 non-immigrant alien can be domiciled in this State. A judicial determination in the negative would foreclose their Constitutional and statutory arguments; a determination in the affirmative would require the University's Board of Regents to rewrite the In-State policy to accommodate this category of domiciliaries." Record 239-240 (emphasis added).
Similar sentiments are expressed in petitioner's brief in this Court. See Brief, at 11, 12, 28, 30, 34, and 35 n.20. And petitioner's counsel stated at oral argument that if the Court of Appeals of Maryland determined that a person with a G-4 visa is capable of forming the requisite intent to establish domicile, "the odds are reasonably high that the case would become moot because the university would change its policy, but that judgment is one that would be made by the regents . . . ." Tr. of Oral Arg. 14-15.
14
No recent Maryland case has been cited in the briefs either here or below. In addition, petitioner's counsel, an Assistant Attorney General of Maryland, stated at oral argument that there "are no Maryland decisions one way or the other." Id., at 10.
15
Although petitioner asked the District Court to abstain, Record 211, he did not ask that court to certify the state-law question of domicile to the Maryland Court of Appeals. We need not decide whether the District Court's failure to abstain was erroneous, for, as we noted in Bellotti v. Baird, supra, at 150-151, 96 S.Ct. at 2867-2868:
"This Court often has remarked that the equitable practice of abstention is limited by considerations of ' "the delay and expense to which application of the abstention doctrine inevitably gives rise." ' . . . As we have also noted, however, the availability of an adequate certification procedure 'does, of course, in the long run save time, energy, and resources and helps build a cooperative judicial federalism.' . . .
" . . . [T]he availability of certification greatly simplifies [Pullman abstention] analysis." (Footnotes omitted.)
16
Although it is our frequent practice to defer to a construction of state law made by a district court and affirmed by a court of appeals whose jurisdiction includes the State whose law is construed, see, e. g., Bishop v. Wood, 426 U.S. 341, 345-346, and 346-347, n. 10 (1976) (collecting cases), we do not do so here for two reasons. First, the question of who can become a domiciliary of a State is one in which state governments have the highest interest. Many issues of state law may turn on the definition of domicile: for example, who may vote; who may hold public office; who may obtain a divorce; who must pay the full spectrum of state taxes. In short, the definition of domicile determines who is a full-fledged member of the polity of a State, subject to the full power of its laws and participating (except, of course, with respect to aliens) fully in its governance. Second, the status of the many foreign nationals living in Maryland is of great importance to Maryland because it potentially affects Maryland's relations with the Federal Government, other state and local governments in the greater District of Columbia area, and foreign nations. In a federal system, it is obviously desirable that questions of law which, like domicile, are both intensely local and immensely important to a wide spectrum of state government activities be decided in the first instance by state courts. This may not always be possible nor is it always required, but where as here there is an efficient method for obtaining a ruling from the highest court of a State we do not hesitate to avail ourselves of it. In so doing, we emphasize that we do not in any way suggest that the District Court's determination of Maryland law was incorrect.
17
Immigration and Nationality Act Amendments of 1976, § 2, 90 Stat. 2703, amending § 201 of the 1952 Act, as amended, 8 U.S.C. § 1151 (1976 ed.)
18
§ 201 of the 1952 Act, as amended, 8 U.S.C. § 1151 (1976 ed.).
19
8 U.S.C. § 1151 (1976 ed.).
20
See S.Rep.No.1137, 82d Cong., 2d Sess., pt. 1, p. 13 (1952); H.R.Rep.No.1365, 82d Cong., 2d Sess., 52 (1952), U.S.Code Cong. & Admin.News 1952, p. 1653; H.R.Rep.No.91-851, pp. 5-7 (1970), U.S.Code Cong. & Admin.News 1970, p. 2750.
21
See n. 4, supra.
22
Until the Immigration and Nationality Act Amendments of 1976, n. 17, supra, nonimmigrant aliens whose country of origin was in the Western Hemisphere were excluded from adjustment of status. Section 6 of the 1976 Amendments, 90 Stat. 2705, removed this restriction. See 8 U.S.C. § 1255 (1976 ed.).
23
Opinions of the Attorney General, the Board of Immigration Appeals, and of Immigration and Naturalization Service officers published in Administrative Decisions Under Immigration and Nationality Laws of the United States are "binding on all officers and employees of the Service in the administration of the [1952] Act." 8 CFR §§ 3.1(g), 103.3(e), and 103.9(a) (1977).
24
See, e. g., Matter of Rubio-Vargas, 11 I. & N.Dec. 167 (BIA 1965); Matter of Vega, 11 I. & N. Dec. 337 (BIA 1965); Matter of Diaz-Villamil, 10 I. & N. Dec. 494 (BIA 1964); Ameeriar v. INS, 438 F.2d 1028 (CA3), cert. dismissed, 404 U.S. 801, 92 S.Ct. 21, 30 L.Ed.2d 34 (1971). See also Matter of Barrios, 10 I. & N.Dec. 172 (BIA 1963); Brownell v. Carija, 102 U.S.App.D.C. 379, 254 F.2d 78 (1957); Brownell v. Gutnayer, 94 U.S.App.D.C. 90, 212 F.2d 462 (1954).
25
See, e. g., Matter of Marchena, 12 I. & N.Dec. 355 (Regional Comm'r 1967); Matter of F___, 8 I. & N. Dec. 65 (Asst. Comm'r 1958). See generally Annot., 4 A.L.R.Fed. 557 (1970).
26
See n. 4, supra.
27
Cf. Matter of Penaherrera, 13 I. & N.Dec. 334 (Dist. Director 1969). Although this is a class action, see n. 1, supra, there is no reason on the present record to believe that G-4 aliens as a class are less qualified for adjustment of status than are the class representatives.
28
"§ 12-601. Jurisdiction granted to Court of Appeals.
"The Court of Appeals may answer questions of law certified to it by the Supreme Court of the United States . . . when requested by the certifying court if there is involved in any proceeding before the certifying court a question of law of this state which may be determinative of the cause then pending in the certifying court and as to which it appears to the certifying court there is no controlling precedent in the Court of Appeals of this state."
"§ 12-602. Invocation of subtitle.
"This subtitle may be invoked by an order of any court referred to in § 12-601 upon the court's own motion or upon the motion of any party to the cause."
"§ 12-603. Certification order.
"(a) Form.—A certification order shall set forth:
"(1) The question of law to be answered; and
"(2) A statement of all facts relevant to the question certified showing fully the nature of the controversy in which the question arose."
29
The majority rule appears to be that within a single State "the rules of domicil are the same for all purposes." Restatement (Second) of Conflict of Laws, § 11, Comment o, p. 47 (1971). Should Maryland not follow this rule, we presume that the Court of Appeals will direct its attention to domicile for the purposes of this case.
*
[Reporter's Note: Subsequently, the Maryland Court of Appeals answered the certified question, and a supplemental opinion was rendered in Toll v. Moreno, 441 U.S. 458, 99 S.Ct. 2044, 60 L.Ed.2d 354 (1979).]
1
In rejecting the appeals of respondents Moreno and Otero from tuition decisions of the Intercampus Review Committee, petitioner President of the University of Maryland also emphasized that the University precludes nonimmigrant aliens from in-state tuition status for reasons other than solely domicile:
"It is the policy of the University of Maryland to grant in-state status for admission, tuition and charge-differential purposes only to United States citizens and to immigrant aliens lawfully admitted for permanent residence. Furthermore, such individuals (or their parents) must display Maryland domicile. . . .
"The University's classification policy also distinguishes between domiciliaries and non-domiciliaries of Maryland." App. 12A (emphasis added).
See also Record 34, 55, 80, and 115.
2
As the Court notes, ante, at 668-669 n. 28, the question certified to the Court of Appeals of Maryland may not be answerable by a simple "yes" or "no." The Court asks as a general matter whether respondents are "incapable as a matter of state law of becoming domiciliaries of Maryland." The answer may be that they are ncapable of establishing Maryland domicile for university tuition purposes but are still capable of becoming domiciliaries for other purposes such as divorce and personal jurisdiction. While in Williamson v. Osenton, 232 U.S. 619, 625, 34 S.Ct. 442, 443, 58 L.Ed. 758, 761 (1914), this Court expressed doubt whether the definition of domicile ever varies depending on the purpose for which domicile is being used, various state-court opinions since 1914 have shown that observation to be incorrect. See, e. g., In re Estate of Jones, 192 Iowa 78, 82, 182 N.W. 227, 229 (1921). The relevant issue in this case, of course, is whether respondents may establish Maryland domicile for university purposes, not whether they may become domiciled for purposes of divorce, etc.
3
As the Court recognizes, ante, at 656-657 n. 5, the University of Maryland does not presently preclude students from in-state tuition status solely because their parents pay no state income tax. However, the record clearly demonstrates that cost equalization is one of the major concerns that have led the University to charge higher tuition rates to nonimmigrant aliens.
4
The Court does not appear to argue that domicile is the sole reason for the University of Maryland's out-of-state classification of nonimmigrant aliens. Instead, the Court concludes that domicile is the " 'paramount'
and controlling concern" of the University. Ante, at 659, and n. 8. The Court supports its conclusions not with citations from the pleadings or affidavits of the parties but with references to briefs and memoranda filed by their counsel. Counsel for petitioner is, of course, charged with the legal defense of the validity of the policy statement promulgated by the Board of Regents and enforced by petitioner, but counsel is not authorized, in the absence of more authority than is shown here, either to rewrite or to predict how the Regents might rewrite its policy. Thus whatever the "surprise" that the Court foresees petitioner will experience from the view taken of the Regents' policy statement, see ante, at 659 n. 8, will stem not from this dissent but from the Court's willingness to attribute to ambiguous statements by counsel for a state agency the implied authority to rewrite the agency's regulations or to predict the manner in which the agency might rewrite them. Even the selected statements of counsel do not unequivocally support the Court's conclusion. As noted earlier, supra, at 673, while counsel for petitioner suggested that "the odds are reasonably high" that the University will modify its policy if the Court of Appeals of Maryland concludes that G-4 aliens can become domiciled in Maryland, he also emphasized that the University's other concerns, such as cost equalization, might lead the Regents to continue out-of-state classification of nonimmigrant aliens. Domicile, in other words, is not the sole concern of the University and may well not even be a "controlling concern." See also Brief for Petitioner 29-32; Tr. of Oral Arg. 19-21 (out-of-state classification of nonimmigrant aliens "serve[s] many purposes other than measuring domicile"; "the policy . . . is clearly intended to serve other purposes").
Even if the University declined to accord in-state tuition status to nonimmigrant aliens solely because of the University's conclusion that nonimmigrant aliens cannot be domiciled in Maryland for tuition purposes, no irrebuttable presumption would be presented. In Vlandis v. Kline, 412 U.S. 441, 93 S.Ct. 2230, 37 L.Ed.2d 63 (1973); the University presumed that a student who was not domiciled in Connecticut at the time he first enrolled at the University of Connecticut could not become a Connecticut resident while attending the University, even though all the normal indicia of residence might be acquired during this period. Here, on the other hand, the University of Maryland merely reads Maryland law as holding that nonimmigrant G-4 aliens cannot satisfy the requirement for Maryland domicile for tuition purposes. This is purely and simply a question of state law. Respondents do not accuse petitioner of employing a nonuniversal, yet irrebuttable, presumption, but rather instead of misinterpreting Maryland domicile law. If the University of Maryland has misinterpreted state law, this is an error to be resolved by state, not federal, courts; no issue of federal cons itutional law is presented.
5
Because the tuition policy of the University of Maryland is controlled by Weinberger v. Salfi and not Vlandis v. Kline, the Court need not decide, as amici 29 States urge us to do, whether Vlandis should be overruled.
6
Some Members of the Court may believe that resolution of the state domicile issue would be helpful in resolving respondents' equal protection claim. If the Court of Appeals of Maryland decides that nonimmigrant aliens holding G-4 visas cannot establish Maryland domicile for tuition purposes, Starns v. Malkerson, 326 F.Supp. 234 (D.C.Minn.1970), summarily aff'd, 401 U.S. 985, 91 S.Ct. 1231, 28 L.Ed.2d 527 (1971), clearly establishes that the University of Maryland can deny such nondomiciliaries lower in-state tuition rates without violating the Equal Protection Clause of the Fourteenth Amendment. If the Court of Appeals decides that holders of G-4 visas can establish Maryland domicile, on the other hand, resolution of respondents' equal protection claim may rest on the proper interpretation of Nyquist v. Mauclet, 432 U.S. 1, 97 S.Ct. 2120, 53 L.Ed.2d 63 (1977).
The only question presented by the petition for certiorari, however, is: "Whether the decisions below should have been applied Supreme Court precedents on irrebuttable presumptions, disregarded the principles articulated in Weinberger v. Salfi, 422 U.S. 749, 95 S.Ct. 2457, 45 L.Ed.2d 522 (1975), and erroneously concluded that the University of Maryland's policy of denying in-state status for tuition and fee purposes to non-immigrants holding G-4 visas establishes an irrebuttable presumption violative of the due process clause of the fourteenth amendment to the United States Constitution?" Consideration of respondents' equal protection claim, which was never addressed below, may best be left initially to the lower courts on remand. Even if the Court ultimately decides to consider respondents' equal protection arguments, resolution of Maryland domicile law would seem irrelevant. Unlike the situation in Nyquist, the University of Maryland does not discriminate against resident aliens. Cf. 432 U.S., at 2, 4, 5-6, and nn. 6, and 12, 97 S.Ct., at 2122, 2123-2124. There thus would not appear to be any issue of suspect class and the University's in-state tuition policy need only be shown to be rationally related to a legitimate state interest. The niversity's concern with cost equalization alone would seem sufficient to support the line drawn by the University. See Starns v. Malkerson, supra.
7
According to petitioner, he "urged both the district court and the court of appeals to defer to Maryland courts the question of whether the state law precluded G-4's from establishing Maryland domicile." Brief for Petitioner 35 n. 20. The record indicates that petitioner, in his answer to respondents' complaint, urged the District Court to "abstain from exercising any jurisdiction it may possess in this action until it shall have been heard and determined fully by the courts of Maryland." Record 117. Petitioner renewed the request in his motion for summary judgment and memorandum in support thereof. Id., at 211, and 239-243. In reply, respondents urged the District Court, "should [it] elect to abstain, . . . to use the certification procedure provided by the Uniform Certification of Questions of Law Act, Ann. Code of Md., Courts and Judicial Proceedings, §§ 12-601-609 (1974). Under that Act the Court of Appeals of Maryland is empowered to answer questions of state law certified to it by the United States District Court which may be determinative and as to which it appears there is no controlling precedent." Id., at 274. Respondents also went on to argue, however, that the District Court need neither abstain outright nor certify the question of domicile to the Court of Appeals of Maryland, since "the Maryland common law of domicile is not at issue in this case. No 'clarification' of the Maryland common law of domicile is needed." Id., at 272. The District Court, although concluding that the Maryland law of domicile is relevant, declined to either abstain outright or certify the question of domicile to the Court of Appeals of Maryland.
8
While I agree with the Court's conclusion that holders of G-4 visas are not prevented as a matter of federal law from establishing Maryland domicile, I find it unnecessary to address the five pages of dicta that accompany that conclusion. I am nonetheless troubled by the Court's unsupported dictum that the United States may not be able to deport, under certain unspecified circumstances, a G-4 alien who terminates his employment with an international treaty organization. Ante, at 667.
| 12
|
435 U.S. 618
98 S.Ct. 1322
55 L.Ed.2d 593
Paul A. McDANIEL, Appellant,v.Selma Cash PATY et al.
No. 76-1427.
Argued Dec. 5, 1977.
Decided April 19, 1978.
Syllabus
Appellee Paty, a candidate for delegate to a Tennessee constitutional convention, sued in the State Chancery Court for a declaratory judgment that appellant, an opponent who was a Baptist minister, was disqualified from serving as delegate by a Tennessee statutory provision establishing the qualifications of constitutional convention delegates to be the same as those for membership in the State House of Representatives, thus invoking a Tennessee constitutional provision barring "[m]inister[s] of the Gospel, or priest[s] of any denomination whatever." That court held that the statutory provision violated the First and Fourteenth Amendments. The Tennessee Supreme Court reversed, holding that the clergy disqualification imposed no burden on "religious belief" and restricted "religious action . . . [only] in the law making process of government—where religious action is absolutely prohibited by the establishment clause . . . ." Held : The judgment is reversed, and the case is remanded. Pp. 625-629; 629-642; 642-643; 643-646.
547 S.W.2d 897, reversed and remanded.
The Chief Justice, joined by Mr. Justice Powell, Mr. Justice Rehnquist, and Mr. Justice Stevens, concluded:
1. The Tennessee disqualification is directed primarily, not at religious belief, but at the status, acts, and conduct of the clergy. Therefore, the Free Exercise Clause's absolute prohibition against infringements on the "freedom to believe" is inapposite here. Torcaso v. Watkins, 367 U.S. 488, 81 S.Ct. 1680, 6 L.Ed.2d 982 (which invalidated a state requirement that an appointee to public office declare his belief in the existence of God), distinguished. Pp. 626-627.
2. Nevertheless, the challenged provision violates appellant's First Amendment right to the free exercise of his religion made applicable to the States by the Fourteenth Amendment, because it conditions his right to the free exercise of his religion on the surrender of his right to seek office. Sherbert v. Verner, 374 U.S. 398, 406, 83 S.Ct. 1790, 1795, 10 L.Ed.2d 965. Though justification is asserted under the Establishment Clause for the statutory restriction on the ground that if elected to public office members of the clergy will necessarily promote the interests of one sect or thwart those of another contrary to the anti-establishment principle of neutrality, Tennessee has failed to demonstrate that its views of the dangers of clergy participation in the political process have not lost whatever validity they may once have enjoyed. Accordingly, there is no need to inquire whether the State's legislative goal is permissible. Pp. 626, 627-629.
Mr. Justice Brennan, joined by Mr. Justice Marshall, concluded:
1
1. The Free Exercise Clause is violated by the challenged provision. Pp. 630-635.
2
(a) Freedom of belief protected by that Clause embraces freedom to profess or practice that belief, even including doing so for a livelihood. The Tennessee disqualification establishes as a condition of office he willingness to eschew certain protected religious practices. The provision therefore establishes a religious classification governing eligibility for office that is absolutely prohibited. Torcaso v. Watkins, supra. Pp. 631-633.
3
(b) The fact that the law does not directly prohibit religious exercise but merely conditions eligibility for office on its abandonment does not alter the protection afforded by the Free Exercise Clause. "Governmental imposition of such a choice puts the same kind of burden upon the free exercise of religion as would a fine . . . ," Sherbert v. Verner, supra, at 404, 83 S.Ct., at 1794, and Tennessee's disqualification provision therefore imposed an unconstitutional penalty on appellant's free exercise. Moreover, "[t]he fact . . . that a person is not compelled to hold public office cannot possibly be an excuse for barring him from office by state-imposed criteria forbidden by the Constitution." Torcaso v. Watkins, supra, 367 U.S., at 495-496, 81 S.Ct., at 1684. Pp. 633-634.
4
2. The Tennessee disqualification also violates the Establishment Clause. Government generally may not use religion as a basis of classification for the imposition of duties, penalties, privileges, or benefits. Specifically, government may not fence out from political participation, people such as ministers whom it regards as overinvolved in religion. The disqualification provision employed by Tennessee here establishes a religious classification that has the primary effect of inhibiting religion. Pp. 636-642.
5
Mr. Justice Stewart concluded that Torcaso v. Watkins, supra, controls this case. Except for the fact that Tennessee bases its disqualification, not on a person's statement of belief, but on his decision to pursue a religious vocation as directed by his belief, the situation in Torcaso is indistinguishable from the one here. Pp. 642-643.
6
Mr. Justice White concluded that the Tennessee disqualification, while not interfering with appellant's right to exercise his religion as he desires, denies him equal protection. Though that disqualification is based on the State's asserted interest in maintaining the required separation of church and state, it is not reasonably necessary for that objective, which all States except Tennessee have been able to realize without burdening ministers' rights to candidacy. In addition, the statute is both underinclusive and overinclusive. Pp. 643-646.
7
Frederic S. LeClercq, Knoxville, Tenn., for appellant.
8
Kenneth R. Herrell, Nashville, Tenn., for appellees.
9
Mr. Chief Justice BURGER announced the judgment of the Court and delivered an opinion in which Mr. Justice POWELL, Mr. Justice REHNQUIST, and Mr. Justice STEVENS joined.
10
The question presented by this appeal is whether a Tennessee statute barring "Minister[s] of the Gospel, or priest[s] of any denomination whatever" from serving as delegates to the State's limited constitutional convention deprived appellant McDaniel, an ordained minister, of the right to the free exercise of religion guaranteed by the First Amendment and made applicable to the States by the Fourteenth Amendment. The First Amendment forbids all laws "prohibiting the free exercise" of religion.
11
* In its first Constitution, in 1796, Tennessee disqualified ministers from serving as legislators.1 That disqualifying provision has continued unchanged since its adoption; it is now Art. 9, § 1, of the State Constitution. The state legislature applied this provision to candidates for delegate to the State's 1977 limited constitutional convention when it enacted ch. 848, § 4, of 1976 Tenn.Pub.Acts: "Any citizen of the state who can qualify for membership in the House of Representatives of the General Assembly may become a candidate for delegate to the convention . . . ."
12
McDaniel, an ordained minister of a Baptist Church in Chattanooga, Tenn., filed as a candidate for delegate to the constitutional convention. An opposing candidate, appellee Selma Cash Paty, sued in the Chancery Court for a declaratory judgment that McDaniel was disqualified from serving as a delegate and for a judgment striking his name from the ballot. Chancellor Franks of the Chancery Court held that § 4 of ch. 848 violated the First and Fourteenth Amendments to the Federal Constitution and declared McDaniel eligible for the office of delegate. Accordingly, McDaniel's name remained on the ballot and in the ensuing election he was elected by a vote almost equal to that of three opposing candidates.
13
After the election, the Tennessee Supreme Court reversed the Chancery Court, holding that the disqualification of clergy imposed no burden upon "religious belief" and restricted "religious action . . . [only] in the lawmaking process of government—where religious action is absolutely prohibited by the establishment clause . . . ." 547 S.W.2d 897, 903 (1977). The state interests in preventing the establishment of religion and in avoiding the divisiveness and tendency to channel political activity along religious lines, resulting from clergy participation in political affairs, were deemed by that court sufficiently weighty to justify the disqualification, notwithstanding the guarantee of the Free Exercise Clause.
14
We noted probable jurisdiction.2 432 U.S. 905, 97 S.Ct. 2948, 53 L.Ed.2d 1076 (1977).
II
A.
15
The disqualification of ministers from legislative office was a practice carried from England by seven of the original States;3 later six new States similarly excluded clergymen from some political offices. 1 A. Stokes, Church and State in the United States 622 (1950) (hereafter Stokes). In England the practice of excluding clergy from the House of Commons was justified on a variety of grounds: to prevent dual officeholding, that is, membership by a minister in both Parliament and Convocation; to insure that the priest or deacon devoted himself to his "sacred calling" rather than to "such mundane activities as were appropriate to a member of the House of Commons"; and to prevent ministers, who after 1533 were subject to the Crown's powers over the benefices of the clergy, from using membership in Commons to diminish its independence by increasing the influence of the King and the nobility. In re MacManaway, [1951] A.C. 161, 164, 170-171.
16
The purpose of the several States in providing for disqualification was primarily to assure the success of a new political experiment, the separation of church and state. 1 Stokes 622. Prior to 1776, most of the 13 Colonies had some form of an established, or government-sponsored, church. Id., at 364-446. Even after ratification of the First Amendment, which prohibited the Federal Government from following such a course, some States continued pro-establishment provisions. See id., at 408, 418-427, 444. Massachusetts, the last State to accept disestablishment, did so in 1833. Id., at 426-427.
17
In light of this history and a widespread awareness during that period of undue and often dominant clerical influence in public and political affairs here, in England, and on the Continent, it is not surprising that strong views were held by some that one way to assure disestablishment was to keep clergymen out of public office. Indeed, some of the foremost political philosophers and statesmen of that period held such views regarding the clergy. Earlier, John Locke argued for confining the authority of the English clergy "within the bounds of the church, nor can it in any manner be extended to civil affairs; because the church itself is a thing absolutely separate and distinct from the commonwealth." 5 Works of John Locke 21 (C. Baldwin ed. 1824). Thomas Jefferson initially advocated such a position in his 1783 draft of a constitution for Virginia.4 James Madison, however, disagreed and vigorously urged the position which in our view accurately reflects the spirit and purpose of the Religion Clauses of the First Amendment. Madison's response to Jefferson's position was:
18
"Does not The exclusion of Ministers of the Gospel as such violate a fundamental principle of liberty by punishing a religious profession with the privation of a civil right? does it [not] violate another article of the plan itself which exempts religion from the cognizance of Civil power? does it not violate justice by at once taking away a right and prohibiting a compensation for it? does it not in fine violate impartiality by shutting the door [against] the Ministers of one Religion and leaving it open for those of every other." 5 Writings of James Madison 288 (G. Hunt ed. 1904).
19
Madison was not the only articulate opponent of clergy disqualification. When proposals were made earlier to prevent clergymen from holding public office, John Witherspoon, a Presbyterian minister, president of Princeton University, and the only clergyman to sign the Declaration of Independence, made a cogent protest and, with tongue in cheek, offered an amendment to a provision much like that challenged here:
20
" 'No clergyman, of any denomination, shall be capable of being elected a member of the Senate or House of Representatives, because (here insert the grounds of offensive disqualification, which I have not been able to discover) Provided always, and it is the true intent and meaning of this part of the constitution, that if at any time he shall be completely deprived of the clerical character by those by whom he was invested with it, as by deposition for cursing and swearing, drunkenness or uncleanness, he shall then be fully restored to all the privileges of a free citizen; his offense [of being a clergyman] shall no more be remembered against him; but he may be chosen either to the Senate or House of Representatives, and shall be treated with all the respect due to his brethren, the other members of Assembly.' " Stokes 624-625.
21
As the value of the disestablishment experiment was perceived, 11 of the 13 States disqualifying the clergy from some types of public office gradually abandoned th t limitation. New York, for example, took that step in 1846 after delegates to the State's constitutional convention argued that the exclusion of clergymen from the legislature was an "odious distinction." 2 C. Lincoln, The Constitutional History of New York 111-112 (1906). Only Maryland and Tennessee continued their clergy-disqualification provisions into this century and, in 1974, a District Court held Maryland's provision violative of the First and Fourteenth Amendments' guarantees of the free exercise of religion. Kirkley v. Maryland, 381 F.Supp. 327. Today Tennessee remains the only State excluding ministers from certain public offices.
22
The essence of this aspect of our national history is that in all but a few States the selection or rejection of clergymen for public office soon came to be viewed as something safely left to the good sense and desires of the people.
B
23
This brief review of the history of clergy-disqualification provisions also amply demonstrates, however, that, at least during the early segment of our national life, those provisions enjoyed the support of responsible American statesmen and were accepted as having a rational basis. Against this background we do not lightly invalidate a statute enacted pursuant to a provision of a state constitution which has been sustained by its highest court. The challenged provision came to the Tennessee Supreme Court clothed with the presumption of validity to which that court was bound to give deference. However, the right to the free exercise of religion unquestionably encompasses the right to preach, proselyte, and perform other similar religious functions, or, in other words, to be a minister of the type McDaniel was found to be. Murdock v. Pennsylvania, 319 U.S. 105, 63 S.Ct. 870, 87 L.Ed. 1292 (1943); Cantwell v. Connecticut, 310 U.S. 296, 60 S.Ct. 900, 84 L.Ed. 1213 (1940). Tennessee also acknowledges the right of its adult citizens generally to seek and hold office as legislators or delegates to the state constitutional convention. Tenn.Const., Art. 2, §§ 9, 25, 26; Tenn.Code Ann. §§ 8-1801, 8-1803 (Supp.1977). Yet under the clergy-disqualification provision, McDaniel cannot exercise both rights simultaneously because the State has conditioned the exercise of one on the surrender of the other. Or, in James Madison's words, the State is "punishing a religious profession with the privation of a civil right." 5 Writings of James Madison, supra, at 288. In so doing, Tennessee has encroached upon McDaniel's right to the free exercise of religion. "[T]o condition the availability of benefits [including access to the ballot] upon this appellant's willingness to violate a cardinal principle of [his] religious faith [by surrendering his religiously impelled ministry] effectively penalizes the free exercise of [his] constitutional liberties." Sherbert v. Verner, 374 U.S. 398, 406, 83 S.Ct. 1790, 1795, 10 L.Ed.2d 965 (1963).
24
If the Tennessee disqualification provision were viewed as depriving the clergy of a civil right solely because of their religious beliefs, our inquiry would be at an end. The Free Exercise Clause categorically prohibits government from regulating, prohibiting, or rewarding religious beliefs as such. Id., at 402, 83 S.Ct., at 1794; Cantwell v. Connecticut, supra, 310 U.S., at 304, 60 S.Ct., at 903. In Torcaso v. Watkins, 367 U.S. 488, 81 S.Ct. 1680, 6 L.Ed.2d 982 (1961), the Court reviewed the Maryland constitutional requirement that all holders of "any office of profit or trust in this State" declare their belief in the existence of God. In striking down the Maryland requirement, the Court did not evaluate the interests assertedly justifying it but rather held that it violated freedom of religious belief.
25
In our view, however, Torcaso does not govern. By its terms, the Tennessee disqualification operates against McDaniel because of his status as a "minister" or "priest." The meaning of thos words is, of course, a question of state law.5 And although the question has not been examined extensively in state-law sources, such authority as is available indicates that ministerial status is defined in terms of conduct and activity rather than in terms of belief.6 Because the Tennessee disqualification is directed primarily at status, acts, and conduct it is unlike the requirement in Torcaso, which focused on belief. Hence, the Free Exercise Clause's absolute prohibition of infringements on the "freedom to believe" is inapposite here.7
26
This does not mean, of course, that the disqualification escapes judicial scrutiny or that McDaniel's activity does not enjoy significant First Amendment protection. The Court recently declared in Wisconsin v. Yoder, 406 U.S. 205, 215, 92 S.Ct. 1526, 1533, 32 L.Ed.2d 15 (1972):
27
"The essence of all that has been said and written on the subject is that only those interests of the highest order and those not otherwise served can overbalance legitimate claims to the free exercise of religion."8
28
Tennessee asserts that its interest in preventing the establishment of a tate religion is consistent with the Establishment Clause and thus of the highest order. The constitutional history of the several States reveals that generally the interest in preventing establishment prompted the adoption of clergy disqualification provisions, see Stokes 622; Tennessee does not appear to be an exception to this pattern. Cf. post, at 636 n. 9 (Brennan, J., concurring in judgment). There is no occasion to inquire whether promoting such an interest is a permissible legislative goal, however, see post, at 636-642, for Tennessee has failed to demonstrate that its views of the dangers of clergy participation in the political process have not lost whatever validity they may once have enjoyed. The essence of the rationale underlying the Tennessee restriction on ministers is that if elected to public office they will necessarily exercise their powers and influence to promote the interests of one sect or thwart the interests of another, thus pitting one against the others, contrary to the anti-establishment principle with its command of neutrality. See Walz v. Tax Comm'n, 397 U.S. 664, 90 S.Ct. 1409, 25 L.Ed.2d 697 (1970). However widely that view may have been held in the 18th century by many, including enlightened statesmen of that day, the American experience provides no persuasive support for the fear that clergymen in public office will be less careful of anti-establishment interests or less faithful to their oaths of civil office than their unordained counterparts.9
29
We hold that § 4 of ch. 848, violates McDaniel's First Amendment right to the free exercise of his religion made applicable to the States by the Fourteenth Amendment. Accordingly, the judgment of the Tennessee Supreme Court is reversed, and the case is remanded to that court for further proceedings not inconsistent with this opinion.
30
Reversed and remanded.
31
Mr. Justice BLACKMUN took no part in the consideration or decision of this case.
32
Mr. Justice BRENNAN, with whom Mr. Justice MARSHALL joins, concurring in the judgment.
33
I would hold that § 4 of the legislative call to the Tennessee constitutional convention,1 to the extent that it incorporates Art. 9, § 1, of the Tennessee Constitution, see ante, at 621 n.1, violates both the Free Exercise and Establishment Clauses of the First Amendment as applied to the States through the Fourteenth Amendment. I therefore concur in the reversal of the judgment of the Tennessee Supreme Court.
34
* The Tennessee Supreme Court sustained Tennessee's exclusion on the ground that it "does not infringe upon religious belief or religious action within the protection of the free exercise cl use[, and] that such indirect burden as may be imposed upon ministers and priests by excluding them from the lawmaking process of government is justified by the compelling state interest in maintaining the wall of separation between church and state." 547 S.W.2d 897, 907 (1977). In reaching this conclusion, the state court relied on two interrelated propositions which are inconsistent with decisions of this Court. The first is that a distinction may be made between "religious belief or religious action" on the one hand, and the "career or calling" of the ministry on the other. The court stated that "[i]t is not religious belief, but the career or calling, by which one is identified as dedicated to the full time promotion of the religious objectives of a particular religious sect, that disqualifies." Id., at 903. The second is that the disqualification provision does not interfere with the free exercise of religion because the practice of the ministry is left unimpaired; only candidacy for legislative office is proscribed.
35
The characterization of the exclusion as one burdening appellant's "career or calling" and not religious belief cannot withstand analysis. Clearly freedom of belief protected by the Free Exercise Clause embraces freedom to profess or practice that belief,2 even including doing so to earn a livelihood. One's religious belief surely does not cease to enjoy the protection of the First Amendment when held with such depth of sincerity as to impel one to join the ministry.3
36
Whether or not the provision discriminates among religions (and I accept for purposes of discussion the State Supreme Court's construction that it does not,4 id., at 908), it establishes a religious classification—involvement in protected religious activity—governing the eligibility for office, which I believe is absolutely prohibited. The provision imposes a unique disability upon those who exhibit a defined level of intensity of involvement in protected religious activity. Such a classification as much imposes a test for office based on religious conviction as one based on denominational preference. A law which limits political participation to those who eschew prayer, public worship, or the ministry as much establishes a religious test as one which disqualifies Catholics, or Jews, or Protestants. Wieman v. Updegraff, 344 U.S. 183, 191-192, 73 S.Ct. 215, 218-219, 97 L.Ed. 216 (1952).5 Because the challenged provision establishes as a condition of office the willingness to eschew certain protected religious practices, Torcaso v. Watkins, 367 U.S. 488, 81 S.Ct. 1680, 6 L.Ed.2d 982 (1961), compels the conclusion that it violates the Free Exercise Clause. Torcaso struck down Maryland's requirement that an appointee to the office of notary public declare his belief in the existence of God, expressly disavowing "the historically and constitutionally discredited policy of probing religious beliefs by test oaths or limiting public offices to persons who have, or perhaps more properly profess to have, a belief in some particular kind of religious concept." Id., at 494, 81 S.Ct. at 1683 (footnote omitted). That principle equally condemns the religious qualification for elective office imposed by Tennessee.
37
The second proposition—that the law does not interfere with free exercise because it does not directly prohibit religious activity, but merely conditions eligibility for office on its abandonment—is also squarely rejected by precedent. In Sherbert v. Verner, 374 U.S. 398, 83 S.Ct. 1790, 10 L.Ed.2d 965 (1963), a state statute disqualifying from unemployment compensation benefits persons unwilling to work on Saturdays was held to violate the Free Exercise Clause as applied to a Sabbatarian whose religious faith forbade Saturday work. That decision turned upon the fact that "[t]he ruling forces her to choose between following the precepts of her religion and forfeiting benefits, on the one hand, and abandoning one of the precepts of her religion in order to accept work, on the other hand. Governmental imposition of such a choice puts the same kind of burden upon the free exercise of religion as would a fine imposed against appellant for her Saturday worship." Id., at 404, 83 S.Ct., at 1794.6 Similarly, in "prohibiting legislative service because of a person's leadership role in a religious faith," 547 S.W.2d, at 903, Tennessee's disqualification provision imposed an unconstitutional penalty upon appellant's exercise of his religious faith.7
38
Nor can Tennessee's political exclusion be distinguished from Sherbert's welfare disqualification as the Tennessee court thought, by suggesting that the unemployment compensation involved in Sherbert was necessary to sustain life while participation in the constitutional convention is a voluntary activity not itself compelled by religious belief. Torcaso answers that contention. There we held that "[t]he fact . . . that a person is not compelled to hold public office cannot possibly be an excuse for barring him from office by state-imposed criteria forbidden by the Constitution." 367 U.S., at 495-496, 81 S.Ct. at 1684.
39
The opinion of the Tennessee Supreme Court makes clear that the statute requires appellant's disqualification solely because he is a minister of a religious faith. If appellant were to renounce his ministry, presumably he could regain eligibility for elective office, but if he does not, he must forgo an opportunity for political participation he otherwise would enjoy. Sherbert and Torcaso compel the conclusion that because the challenged provision requires appellant to purchase his right to engage in the ministry by sacrificing his candidacy it impairs the free exercise of his religion.
40
The plurality recognizes that Torcaso held "categorically forbid[den]," a provision disqualifying from political office on the basis of religious belief, but draws what I respectfully suggest is a sophistic distinction between that holding and Tennessee's disqualification provision. The purpose of the Tennessee provision is not to regulate activities associated with a ministry, such as dangerous snake handling or human sacrifice, which the State validly could prohibit, but to bar from political office persons regarded as deeply committed to religious participation because of that participation—participation itself not regarded as harmful by the State and which therefore must be conceded to be protected. As the plurality recognizes, appellant was disqualified because he "fill[ed] a 'leadership role in religion,' and . . . 'dedicated [himself] to the full time promotion of the religious objectives of a particular religious sect.' 547 S.W.2d, at 903 (emphasis added)," ante, at 627 n. 6. According to the plurality, McDaniel could not be and was not in fact barred for his belief in religion, but was barred because of his commitment to persuade or lead others to accept that belief. I simply cannot fathom why the Free Exercise Clause "categorically prohibits" hinging qualification for office on the act of declaring a belief in religion, but not on the act of discussing that belief with others.8 Ante, at 626.
II
41
The State Supreme Court's justification of the prohibition, echoed here by the State, as intended to prevent those most intensely involved in religion from injecting sectarian goals and policies into the lawmaking process, and thus to avoid fomenting religious strife or the fusing of church with state affairs, itself raises the question whether the exclusion violates the Establishment Clause.9 As construed, the exclusion manifests patent hostility toward, not neutrality respecting, religion; forces or influences a minister or priest to abandon his ministry as the price of public office; and, in sum, has a primary effect which inhibits religion. See Everson v. Board of Education, 330 U.S. 1, 15-16, 67 S.Ct. 504, 511 (1947); Illinois ex rel. McCollum v. Board of Education, 333 U.S. 203, 210, 68 S.Ct. 461, 464, 92 L.Ed. 649 (1948); Torcaso v. Watkins, 367 U.S., at 492-494, 81 S.Ct., at 1682-1684; Lemon v. Kurtzman, 403 U.S. 602, 91 S.Ct. 2105, 29 L.Ed.2d 745 (1971); Meek v. Pittenger, 421 U.S. 349, 358, 95 S.Ct. 1753, 1759, 44 L.Ed.2d 217 (1975).
42
The fact that responsible statesmen of the day, including some of the United States Constitution's Framers, were attracted by the concept of clergy disqualification, see ante, at 622-625, does not provide historical support for concluding that those provisions are harmonious with the Establishment Clause. Notwithstanding the presence of such provisions in seven state constitutions when the Constitution was being written,10 the Framers refused to follow suit. That the disqualification provisions contained in state constitutions contemporaneous with the United States Constitution and the Bill of Rights cannot furnish a guide concerning the understanding of the harmony of such provisions with the Establishment Clause is evident from the presence in state constitutions, side by side with disqualification clauses, of provisions which would have clearly contravened the First Amendment had it applied to the States, such as those creating an official church,11 and limiting political office to Protestants12 or theistic believers generally.13 In short, the regime of religious liberty embodied in state constitutions was very different from that established by the Constitution of the United States. When, with the adoption of the Fourteenth Amendment, the strictures of the First Amendment became wholly applicable to the States, see Cantwell v. Connecticut, 310 U.S. 296, 303, 60 S.Ct. 900, 903, 84 L.Ed. 1213 (1940); Everson v. Board of Education, supra, 330 U.S., at 8, 67 S.Ct., at 507, earlier conceptions of permissible state action with respect to religion—including those regarding clergy disqualification—were superseded.
43
Our decisions interpreting the Establishment Clause have aimed at maintaining erect the wall between church and state. State governments, like the Federal Government, have been required to refrain from favoring the tenets or adherents of any religion or of religion over nonreligion,14 from insinuating themselves in ecclesiastical affairs or disputes,15 and from establishing programs which unnecessarily or excessively entangle government with religion.16 On the other hand, the Court's decisions have indicated that the limits of permissible governmental action with respect to religion under the Establishment Clause must reflect an appropriate accommodation of our heritage as a religious people whose freedom to develop and preach religious ideas and practices is protected by the Free Exercise Clause.17 Thus, we have rejected as unfaithful to our constitutionally protected tradition of religious liberty, any conception of the Religion Clauses as stating a "strict no-aid" theory18 or as stating a unitary principle, that "religion may not be used as a basis for classification for purposes of governmental action, whether that action be the conferring of rights or privileges or the imposition of duties or obligations." P. Kurland, Religion and the Law 18 (1962); accord, id., at 112. Such rigid conceptions of neutrality have been tempered by constructions upholding religious classifications where necessary to avoid "[a] manifestation of . . . hostility [toward religion] at war with our national tradition as embodied in the First Amendment's guaranty of the free exercise of religion." Illinois ex rel. McCollum v. Board of Education, supra, 333 U.S., at 211-212, 68 S.Ct., at 465. This understanding of the interrelationship of the Religion Clauses has p rmitted government to take religion into account when necessary to further secular purposes unrelated to the advancement of religion,19 and to exempt, when possible, from generally applicable governmental regulation individuals whose religious beliefs and practices would otherwise thereby be infringed,20 or to create without state involvement an atmosphere in which voluntary religious exercise may flourish.21
44
Beyond these limited situations in which government may take cognizance of religion for purposes of accommodating our traditions of religious liberty, government may not use religion as a basis of classification for the imposition of duties, penalties, privileges or benefits.22 "State power is no more to be used so as to handicap religions, than it is to favor them." Everson v. Board of Education, 330 U.S., at 18, 67 S.Ct., at 513.
45
Tennessee nevertheless invokes the Establishment Clause to excuse the imposition of a civil disability upon those deemed to be deeply involved in religion. In my view, that Clause will not permit, much less excuse or condone, the deprivation of religious liberty here involved.
46
Fundamental to the conception of religious liberty protected by the Religion Clauses is the idea that religious beliefs are a matter of v luntary choice by individuals and their associations,23 and that each sect is entitled to "flourish according to the zeal of its adherents and the appeal of its dogma." Zorach v. Clauson, 343 U.S. 306, 313, 72 S.Ct. 679, 684, 96 L.Ed. 954 (1952). Accordingly, religious ideas, no less than any other, may be the subject of debate which is "uninhibited, robust, and wide-open . . . ." New York Times Co. v. Sullivan, 376 U.S. 254, 270, 84 S.Ct. 710, 720, 11 L.Ed.2d 686 (1964). Government may not interfere with efforts to proselyte or worship in public places. Kunz v. New York, 340 U.S. 290, 71 S.Ct. 312, 95 L.Ed. 280 (1951). It may not tax the dissemination of religious ideas. Murdock v. Pennsylvania, 319 U.S. 105, 63 S.Ct. 870, 87 L.Ed. 1292 (1943). It may not seek to shield its citizens from those who would solicit them with their religious beliefs. Martin v. City of Struthers, 319 U.S. 141, 63 S.Ct. 862, 87 L.Ed. 1313 (1943).
47
That public debate of religious ideas, like any other, may arouse emotion, may incite, may foment religious divisiveness and strife does not rob it of constitutional protection.24 Cantwell v. Connecticut, 310 U.S., at 309-310, 60 S.Ct., at 905-906; cf. Terminiello v. Chicago, 337 U.S. 1, 4-5, 69 S.Ct. 894, 895-896, 93 L.Ed. 1131 (1949). The mere fact that a purpose of the Establishment Clause is to reduce or eliminate religious divisiveness or strife, does not place religious discussion, association, or political participation in a status less preferred than rights of discussion, association, and political participation generally. "Adherents of particular faiths and individual churches frequently take strong positions on public issues including . . . vigorous advocacy of legal or constitutional positions. Of course, churches as much as secular bodies and private citizens have that right." Walz v. Tax Comm'n, 397 U.S. 664, 670, 90 S.Ct. 1409, 1412, 25 L.Ed.2d 697 (1970).
48
The State's goal of preventing sectarian bickering and strife may not be accomplished by regulating religious speech and political association. The Establishment Clause does not license government to treat religion and those who teach or practice it, simply by virtue of their status as such, as subversive of American ideals and therefore subject to unique disabilities. Cf. Wieman v. Updegraff, 344 U.S. 183, 73 S.Ct. 215, 97 L.Ed. 216 (1952). Government may not inquire into the religious beliefs and motivations of officeholders—it may not remove them from office merely for making public statements regarding religion, or question whether their legislative actions stem from religious conviction. Cf. Bond v. Floyd, 385 U.S. 116, 87 S.Ct. 339, 17 L.Ed.2d 235 (1966).
49
In short, government may not as a goal promote "safe thinking" with respect to religion and fence out from political participation those, such as ministers, whom it regards as overinvolved in religion. Religionists no less than members of any other group enjoy the full measure of protection afforded speech, association, and political activity generally. The Establishment Clause, properly understood, is a shield against any attempt by government to inhibit religion as it has done here; Abington School Dist. v. Schempp, 374 U.S. 203, 222, 83 S.Ct. 1560, 1571, 10 L.Ed.2d 844 (1963). It may not be used as a sword to justify repression of religion or its adherents from any aspect of public life.25
50
Our decisions under the Establishment Clause prevent government from supporting or involving itself in religion or from becoming drawn into ecclesiastical disputes.26 These prohibitions naturally tend, as they were designed to, to avoid channeling political activity along religious lines and to reduce any tendency toward religious divisiveness in society. Beyond enforcing these prohibitions, however, government may not go. The antidote which the Constitution provides against zealots who would inject sectarianism into the political process is to subject their ideas to refutation in the marketplace of ideas and their platforms to rejection at the polls. With these safeguards, it is unlikely that they will succeed in inducing government to act along religiously divisive lines, and, with judicial enforcement of the Establishment Clause, any measure of success they achieve must be short-lived, at best.
51
Mr. Justice STEWART, concurring in the judgment.
52
Like Mr. Justice BRENNAN, I believe that Torcaso v. Watkins, 367 U.S. 488, 81 S.Ct. 1680, 6 L.Ed.2d 982 controls this case. There, the Court held that Maryland's refusal to commission Torcaso as a notary public because he would not declare his belief in God violated the First Amendment, as incorporated by the Fourteenth. The offense against the First and Fourteenth Amendments lay not simply in requiring an oath, but in "limiting public offices to persons who have, or perhaps more properly profess to have, a belief in some particular kind of religious concept." Id., at 494, 81 S.Ct. at 1683. As the Court noted: "The Fact . . . that a person is not compelled to hold public office cannot possibly be an excuse for barring him from office by state-imposed criteria forbidden by the Constitution." Id., at 495-496, 81 S.Ct. at 1684. Except for the fact that Tennessee bases its disqualification not on a person's statement of belief, but on his decision to pursue a religious vocation as directed by his belief, that case is indistinguishable from this one—and that sole distinction is without constitutional consequence.*
53
Mr. Justice WHITE, concurring in the judgment.
54
While I share the view of my Brothers that Tennessee's disqualification of ministers from serving as delegates to the State's constitutional convention is constitutionally impermissible, I disagree as to the basis for this invalidity. Rather than relying on the Free Exercise Clause, as do the other Members of the Court, I would hold ch. 848, § 4, of 1976 Tenn.Pub.Acts unconstitutional under the Equal Protection Clause of the Fourteenth Amendment.
55
The plurality states that § 4 "has encroached upon McDaniel's right to the free exercise of religion," ante, at 626, but fails to explain in what way McDaniel has been deterred in the observance of his religious beliefs. Certainly he has not felt compelled to abandon the ministry as a result of the challenged statute, nor has he been required to disavow any of his religious beliefs. Because I am not persuaded that the Tennessee statute in any way interferes with McDaniel's ability to exercise his religion as he desires, I would not rest the decision on the Free Exercise Clause, but instead would turn to McDaniel's argument that the statute denies him equal protection of the laws.
56
Our cases have recognized the importance of the right of an individual to seek elective office and accordingly have afforded careful scrutiny to state regulations burdening that right. In Lubin v. Panish, 415 U.S. 709, 716, 94 S.Ct. 1315, 1320, 39 L.Ed.2d 702 (1974), for example, we noted:
57
"This legitimate state interest, however, must be achieved by a means that does not unfairly or unnecessarily burden either a minority party's or an individual candidate's equally important interest in the continued availability of political opportunity. The interests involved are not merely those of parties or individual candidates; the voters can assert their preferences only through candidates or parties or both and it is this broad interest that must be weighed in the balance. The right of a party or an individual to a place on a ballot is entitled to protection and is intertwined with the rights of voters."
58
Recognizing that "the rights of voters and the rights of candidates do not lend themselves to neat separation . . . ," Bullock v. Carter, 405 U.S. 134, 143, 92 S.Ct. 849, 856, 31 L.Ed.2d 92 (1972). The Court has required States to provide substantial justification for any requirement that prevents a class of citizens from gaining ballot access and has held unconstitutional state laws requiring the payment of prohibitively large filing fees,1 requiring the payment of even moderate fees by indigent candidates,2 and having the effect of excluding independent and minority party candidates from the ballot.3
59
The restriction in this case, unlike the ones challenged in the previous cases, is absolute on its face: There is no way in which a Tennessee minister can qualify as a candidate for the State's constitutional convention. The State's asserted interest in this absolute disqualification is its desire to maintain the required separation between church and state. While the State recognizes that not all ministers would necessarily allow their religious commitments to interfere with their duties to the State and to their constituents, it asserts that the potential for such conflict is sufficiently great to justify § 4's candidacy disqualification.
60
Although the State's interest is a legitimate one, close scrutiny reveals that the challenged law is not "reasonably necessary to the accomplishment of . . ." that objective. Bullock, supra, at 144, 92 S.Ct. at 856. All 50 States are required by the First and Fourteenth Amendments to maintain a separation between church and state, and yet all of the States other than Tennessee are able to achieve this objective without burdening ministers' rights to candidacy. This suggests that the underlying assumption on which the Tennessee statute is based—that a minister's duty to the superiors of is church will interfere with his governmental service—is unfounded. Moreover, the rationale of the Tennessee statute is undermined by the fact that it is both underinclusive and overinclusive. While the State asserts an interest in keeping religious and governmental interests separate, the disqualification of ministers applies only to legislative positions, and not to executive and judicial offices. On the other hand, the statute's sweep is so overly broad, for it applies with equal force to those ministers whose religious beliefs would not prevent them from properly discharging their duties as constitutional convention delegates.
61
The facts of this case show that the voters of McDaniel's district desired to have him represent them at the limited constitutional convention. Because I conclude that the State's justification for frustrating the desires of these voters and for depriving McDaniel and all other ministers of the right to seek this position is insufficient, I would hold § 4 unconstitutional as a violation of the Equal Protection Clause.
1
"Whereas ministers of the gospel are, by their profession, dedicated to God and the care of Souls, and ought not to be diverted from the great d ties of their functions; therefore, no minister of the gospel, or priest of any denomination whatever, shall be eligible to a seat in either House of the legislature." Tenn.Const., Art. VIII, § 1 (1796).
2
The judgment of the Tennessee Supreme Court was stayed until final disposition of this appeal. McDaniel is currently serving as a delegate.
3
Maryland, Virginia, North Carolina, South Carolina, Georgia, New York, and Delaware. L. Pfeffer, Church, State, and Freedom 118 (Rev. ed. 1967). Three of these—New York, Delaware, and South Carolina—barred clergymen from holding any political office. Ibid.
4
6 Papers of Thomas Jefferson 297 (J. Boyd ed. 1952). Jefferson later concluded that experience demonstrated there was no need to exclude clergy from elected office. In a letter to Jeremiah Moor in 1800, he stated: "[I]n the same scheme of a constitution [for Virginia which I prepared in 1783, I observe] an abridgment of the right of being elected, which after 17 years more of experience & reflection, I do not approve. It is the incapacitation of a clergyman from being elected. The clergy, by getting themselves established by law, & ingrafted into the machine of government, have been a very formidable engine against the civil and religious rights of man. They are still so in many countries & even in some of these United States. Even in 1783 we doubted the stability of our recent measures for reducing them to the footing of other useful callings. It now appears that our means were effectual. The clergy here seem to have relinquished all pretensions to privilege, and to stand on a footing with lawyers, physicians, &c. They ought therefore to possess the same rights." 9 Works of Jefferson 143 (P. Ford ed. 1905).
5
In this case, the Tennessee Supreme Court concluded that the disqualification of McDaniel did not interfere with his religious belief. 547 S.W.2d 897, 903, 904, 907 (1977). But whether the ministerial status, as defined by state law, implicates the "freedom to act" or the absolute "freedom to believe," Cantwell v. Connecticut, 310 U.S. 296, 304, 60 S.Ct. 900, 903, 84 L.Ed. 1213 (1940) must be resolved under the Free Exercise Clause. Thus, although we consider the Tennessee court's resolution of that issue, we are not bound by it.
6
The Tennessee constitutional provision embodying the disqualification inferentially defines the ministerial profession in terms of its "duties," which include the "care of souls." Tenn.Const., Art. 9, § 1. In this case, the Tennessee Supreme Court stated that the disqualification reaches those filling a "leadership role in religion," and those "dedicated to the full time promotion of the religious objectives of a particular religious sect." 547 S.W.2d at 903 (emphasis added). The Tennessee court, in defining "priest," also referred to the dictionary definition as "one who performs sacrificial, ritualistic, mediatorial, interpretative, or ministerial functions . . . ." Id., at 908 (quoting Webster's Third New International Dictionary 1799-1800 (1971)) (emphasis added).
7
The absolute protection afforded belief by the First Amendment suggests that a court should be cautious in expanding the scope of that protection since to do so might leave government powerless to vindicate compelling state interests.
8
Thus, the courts have sustained government prohibitions on handling venomous snakes or drinking poison, even as part of a religious ceremony, State ex rel. Swann v. Pack, 527 S.W.2d 99 (Tenn.1975), cert. denied, 424 U.S. 954, 96 S.Ct. 1429, 47 L.Ed.2d 360 (1976); State v. Massey, 229 N.C. 734, 51 S.E.2d 179, appeal dismissed for want of substantial federal question sub nom. Bunn v. North Carolina, 336 U.S. 942, 69 S.Ct. 813, 93 L.Ed. 1099 (1949), but have precluded the application of criminal sanctions to the religious use of peyote, People v. Woody, 61 Cal.2d 716, 40 Cal.Rptr. 69, 394 P.2d 813 (1964); cf. Oliver v. Udall, 113 U.S.App.D.C. 212, 306 F.2d 819 (1962) (not reaching constitutional issue), or the religiously impelled refusal to comply with mandatory education laws past the eighth grade, Wisconsin v. Yoder.
We need not pass on the conclusions reached in Pack and Woody, which were not reviewed by this Court. Those cases are illustrative of the general nature of free exercise protections and the delicate balancing required by our decisions in Sherbert v. Verner, 374 U.S. 398, 83 S.Ct. 1790, 10 L.Ed.2d 965 (1963), and Wisconsin v. Yoder, when an important state interest is shown.
9
The struggle for separation of church and state in Virginia, which influenced developments in other States—and in the Federal Government—was waged by others in addition to such secular leaders as Jefferson, Madison, and George Mason; many clergymen vigorously opposed any established church. See Stokes 366-379. This suggests the imprecision of any assumption that, even in the early days of the Republic, most ministers, as legislators, would support measures antithetical to the separation of church and state.
1
Section 4, ch. 848, 1976 Tenn.Pub.Acts, provides, inter alia :
"Any citizen of the state who can qualify for membership in the House of Representatives of the General Assembly may become a candidate for delegate to the convention upon filing with the County Election Commission of his county a nominating petition containing not less than twenty-five (25) names of legally qualified voters of his or her representative district. Each district must be represented by a qualified voter of that district. In the case of a candidate from a representative district comprising more than one county, only one qualifying petition need be filed by the candidate, and that in his home county, with a certified copy thereof filed with the Election Commission of the other counties of his representative district."
2
That for purposes of defining the protection afforded by the Free Exercise Clause a sharp distinction cannot be made between religious belief and religiously motivated action is demonstrated by Oliver Cromwell's directive regarding religious liberty to the Catholics in Ireland:
" 'As to freedom of conscience, I meddle with no man's conscience; but if you mean by that, liberty to celebrate the Mass, I would have you understand that in no place where the power of the Parliament of England prevails shall that be permitted.' " Quoted in S. Hook, Paradoxes of Freedom 23 (1962).
See P. Kurland, Religion and the Law 22 (1962).
This does not mean that the right to participate in religious exercises is absolute, or that the State may never prohibit or regulate religious practices. We have recognized that " 'even when the action is in accord with one's religious convictions, [it] is not totally free from legislative restrictions.' . . . The conduct or actions so regulated[, however,] have invariably posed some substantial threat to public safety, peace or order." Sherbert v. Verner, 374 U.S. 398, 403, 83 S.Ct. 1790, 1793, 10 L.Ed.2d 965 (1963) (citations omitted), in part quoting Braunfeld v. Brown, 366 U.S. 599, 603, 81 S.Ct. 1144, 1145, 6 L.Ed.2d 563 (1961). But the State does not suggest that the "career or calling" of minister or priest itself poses "some substantial threat to public safety, peace or order"; it is the political participation of those impelled by religious belief to engage in the ministry which the State wishes to proscribe.
3
The preaching and proselyting activities in which appellant is engaged as a minister, of course, constitute religious activity protected by the Free Exercise Clause. Kunz v. New York, 340 U.S. 290, 71 S.Ct. 312, 95 L.Ed. 280 (1951) (public worship); Murdock v. Pennsylvania, 319 U.S. 105, 63 S.Ct. 870, 87 L.Ed. 1292 (1943) (distribution of religious literature).
4
It is arguable that the provision not only discriminates between religion and nonreligion, but may, as well, discriminate among religions by depriving ministers of faiths with established, clearly recognizable ministries from holding elective office, while permitting the members of nonorthodox humanistic faiths having no "counterpart" to ministers, 547 S.W.2d 897, 908 (1977), similarly engaged to do so. Madison warned that disqualification provisions would have precisely such an effect:
"[D]oes it not in fine violate impartiality by shutting the door [against] the Ministers of one Religion and leaving it open for those of every other." 5 Writings of James Madison 288 (G. Hunt ed. 1904).
5
". . . Congress could not 'enact a regulation providing that no Republican, Jew or Negro shall be appointed to federal office, or that no federal employee shall attend Mass or take any active part in missionary work.' " 344 U.S., at 191-192, 73 S.Ct. at 218-219, quoting United Public Workers v. Mitchell, 330 U.S. 75, 100, 67 S.Ct. 556, 91 L.Ed. 754 (1947).
6
Sherbert did not state a new principle in this regard. See 374 U.S., at 404-405, n. 6, 83 S.Ct. at 1794 (collecting authorities); Van Alstyne, The Demise of the Right-Privilege Distinction in Constitutional Law, 81 Harv.L.Rev. 1439 (1968).
The Tennessee Supreme Court relied on Braunfeld v. Brown, supra, 366 U.S., at 603-606, 81 S.Ct., at 1145-1147. Candor compels the acknowledgement that to the extent that Braunfeld confli ts with Sherbert in this regard, it was overruled.
7
The "language of the [first] amendment commands that New Jersey cannot hamper its citizens in the free exercise of their own religion. Consequently, it cannot exclude individual Catholics, Lutherans, Mohammedans, Baptists, Jews, Methodists, Non-believers, Presbyterians, or the members of any other faith, because of their faith, or lack of it, from receiving the benefits of public welfare legislation." Everson v. Board of Education, 330 U.S. 1, 16, 67 S.Ct. 504, 512, 91 L.Ed. 711 (1947) (emphasis in original).
8
The plurality's reliance on Wisconsin v. Yoder, 406 U.S. 205, 92 S.Ct. 1526, 32 L.Ed.2d 15 (1972), is misplaced. The governmental action interfering with the free exercise of religion here differs significantly from that in Yoder. There Amish parents challenged a state statute requiring all children within the State to attend school until the age of 16. The parents' claim was that this compulsion interfered with Amish religious teachings requiring the de-emphasis of intellectual training and avoidance of materialistic goals. In sustaining the parents' claim under the Free Exercise Clause, the Court found it necessary to balance the importance of the secular values advanced by the statute the closeness of the fit between those ends and the means chosen, and the impact an exemption on religious grounds would have on the State's goals, on the one hand, against the sincerity and centrality of the objection to the State's goals to the sect's religious practice, and the extent to which the governmental regulation interfered with that practice, on the other hand. In Yoder, the statute implemented by religiously neutral means an avowedly secular purpose which nevertheless burdened respondent's religious exercise. Cases of that nature require a sensitive and difficult accommodation of the competing interests involved.
By contrast, the determination of the validity of the statute involved here requires no balancing of interests. Since, "[b]y its terms, the Tennessee disqualification operates against McDaniel because of his status as a 'minister' or 'priest,' " ante, at 626-627 (emphasis in original), it runs afoul of the Free Exercise Clause simply as establishing a religious classification as a basis for qualification for a political office. Nevertheless, although my view—that because the prohibition establishes a religious qualification for political office it is void without more—does not require consideration of any compelling state interest, I agree with the plurality that the State did not establish a compelling interest.
9
Appellant has raised doubt that the purpose ascribed to the provision by the State is, in fact, its actual purpose. He argues that the actual purpose was to enact as law the religious belief of the dominant Presbyterian sect that it is sinful for a minister to become involved in worldly affairs such as politics, Brief for Appellant 58-59, and that the statute therefore violates the Establishment Clause. Although the State's ascribed purpose is conceivable, especially in light of the reasons for disqualification advanced by statesmen at the time the provision was adopted, see ante, at 622-625, if it were necessary to address appellant's contention we would determine whether that purpose was, in fact, what the provision's framers sought to achieve. In contrast to the general rule that legislative motive or purpose is not a relevant inquiry in determining the constitutionality of a statute, see Arizona v. California, 283 U.S. 423, 455, 51 S.Ct. 522, 526, 75 L.Ed. 1154 (1931) (collecting cases), our cases under the Religion Clauses have uniformly held such an inquiry necessary because under the Religion Clauses government is generally prohibited from seeking to advance or inhibit religion. Epperson v. Arkansas, 393 U.S. 97, 109, 89 S.Ct. 266, 273, 21 L.Ed.2d 228 (1968); McGowan v. Maryland, 366 U.S. 420, 431-445, 453, 81 S.Ct. 1101, 1108-1115, 1119, 6 L.Ed.2d 393 (1961); cf. Grosjean v. American Press Co., 297 U.S. 233, 250-251, 56 S.Ct. 444, 449, 80 L.Ed. 660 (1936). In view of the disposition of this case, it is unnecessa y to explore the validity of appellant's contention, however.
10
See L. Pfeffer, Church, State and Freedom 118 (Rev.ed.1967); 1 A. Stokes, Church and State in the United States 622 (1950).
11
S.C.Const., Art. XXXVIII (1778); see generally Md. Declaration of Rights, Art. XXXIII (1776) (authorizing taxation for support of Christian religion).
12
N.C.Const. § XXXII (1776).
13
Tenn.Const., Art. VIII, § 2 (1796). The current Tennessee Constitution continues this disqualification. Tenn.Const., Art. 9, § 2 (1870).
14
Epperson v. Arkansas, supra; Abington School Dist. v. Schempp, 374 U.S. 203, 83 S.Ct. 1560, 10 L.Ed.2d 844 (1963); Engel v. Vitale, 370 U.S. 421, 82 S.Ct. 1261, 8 L.Ed.2d 601 (1962); Illinois ex rel. McCollum v. Board of Education, 333 U.S. 203, 68 S.Ct. 461, 92 L.Ed. 649 (1948).
15
Serbian Eastern Orthodox Diocese v. Milivojevich, 426 U.S. 696, 96 S.Ct. 2372, 49 L.Ed.2d 151 (1976); Presbyterian Church in the United States v. Mary Elizabeth Blue Hull Memorial Presbyterian Church, 393 U.S. 440, 89 S.Ct. 601, 21 L.Ed.2d 658 (1969); Kedroff v. Saint Nicholas Cathedral, 344 U.S. 94, 73 S.Ct. 143, 97 L.Ed. 120 (1952); United States v. Ballard, 322 U.S. 78, 86, 64 S.Ct. 882, 88 L.Ed. 1148 (1944); see Watson v. Jones, 13 Wall. 679, 727, 20 L.Ed. 666 (1872).
16
New York v. Cathedral Academy, 434 U.S. 125, 98 S.Ct. 340, 54 L.Ed.2d 346 (1977); Meek v. Pittenger, 421 U.S. 349, 95 S.Ct. 1765, 44 L.Ed.2d 217 (1975); Levitt v. Committee for Public Education and Religious Liberty, 413 U.S. 472, 93 S.Ct. 2814, 37 L.Ed.2d 736 (1973); Comm. for Public Educ. & Religious Liberty v. Nyquist, 413 U.S. 756, 93 S.Ct. 2955, 37 L.Ed.2d 948 (1973); Lemon v. Kurtzman, 411 U.S. 192, 93 S.Ct. 1463, 36 L.Ed.2d 151 (1973) (Lemon II ); Lemon v. Kurtzman, 403 U.S. 602, 91 S.Ct. 2105, 29 L.Ed.2d 745 (1971) (Lemon I ).
17
E. g., Abington School Dist. v. Schempp, 374 U.S., at 212-214, 83 S.Ct., at 1565-1567; id., at 295, 83 S.Ct., at 1610 (Brennan, J., concurring); id., at 306, 83 S.Ct., at 1615 (Goldberg, J., concurring); id., at 311-318, 83 S.Ct., at 1618, 1621 (Stewart, J., dissenting); Everson v. Board of Education, 330 U.S., at 8, 67 S.Ct., at 508.
18
Giannella, Religious Liberty, Nonestablishment, and Doctrinal Development, Part II, 81 Harv.L.Rev. 513, 514 (1968).
19
See, e. g., Everson v. Board of Education, supra; McGowan v. Maryland, supra; Giannella, supra n. 18, at 527-528, 532, 538-560 (discussion of "secularly relevant religious factor").
20
Wisconsin v. Yoder, 406 U.S. 205, 92 S.Ct. 1526, 32 L.Ed.2d 15 (1972); Sherbert v. Verner, 374 U.S., at 409, 83 S.Ct., at 1796; id., at 414-417, 83 S.Ct., at 1799-1801 (Stewart, J., concurring in result); L. Tribe, American Constitutional Law § 14-4 (1978); Katz, Freedom of Religion and State Neutrality, 20 U.Chi.L.Rev. 426 (1953).
21
Zorach v. Clauson, 343 U.S. 306, 313, 72 S.Ct. 679, 683, 96 L.Ed. 954 (1952); Quick Bear v. Leupp, 210 U.S. 50, 28 S.Ct. 690, 52 L.Ed. 954 (1908). See generally Walz v. Tax Comm'n, 397 U.S. 664, 90 S.Ct. 1409, 25 L.Ed.2d 697 (1970).
22
Accord, Giannella, supra n. 18, at 527.
23
Id., at 516-522.
24
"Every idea is an incitement. It offers itself for belief and if believed it is acted on unless some other belief outweighs it or some failure of energy stifles the movement at its birth." Gitlow v. New York, 268 U.S. 652, 673, 45 S.Ct. 625, 632, 69 L.Ed. 1138 (1925) (Holmes, J., dissenting).
25
"In much the same spirit, American courts have not thought the separation of church and state to require that religion be totally oblivious to government or politics; church and religious groups in the United States have long exerted powerful political pressures on state and national legislatures, on subjects as diverse as slavery, war, gambling, drinking, prostitution, marriage, and education. To view such religious activity as suspect, or to regard its political results as automatically tainted, might be inconsistent with first amendment freedoms of religious and political expression—and might not even succeed in keeping religious controversy out of public life, given the 'political ruptures caused by the alienation of segments of the religious community.' " L. Tribe, supra n. 20, § 14-12, pp. 866-867 (footnotes omitted).
26
See authorities cited nn. 14-16, supra.
*
In Cantwell v. Connecticut, 310 U.S. 296, 303-304, 60 S.Ct. 900, 903, 84 L.Ed. 1213, this Court recognized that "the [First] Amendment embraces two concepts,—freedom to believe and freedom to act. The first is absolute but, in the nature of things, the second cannot be." This distinction reflects the judgment that, on the one hand, government has no business prying into people's minds or dispensing benefits according to people's religious beliefs, and, on the other, that acts harmful to society should not be immune from proscription simply because the actor claims to be religiously inspired. The disability imposed on McDaniel, like the one imposed on Torcaso, implicates the "freedom to believe" more than the less absolute "freedom to act." As did Maryland in Torcaso, Tennessee here has penalized an individual for his religious status—for what he is and believes in—rather than for any particular act generally deemed harmful to society.
1
Bullock v. Carter, 405 U.S. 134, 92 S.Ct. 849, 31 L.Ed.2d 92 (1972).
2
Lubin v. Panish, 415 U.S. 709, 95 S.Ct. 1315, 39 L.Ed.2d 702 (1974).
3
Williams v. Rhodes, 393 U.S. 23, 89 S.Ct. 5, 21 L.Ed.2d 24 (1968).
| 23
|
435 U.S. 679
98 S.Ct. 1355
5 L.Ed.2d 637
NATIONAL SOCIETY OF PROFESSIONAL ENGINEERS, Petitioner,v.UNITED STATES.
No. 76-1767.
Argued Jan. 18, 1978.
Decided April 25, 1978.
Syllabus
The United States brought this civil antitrust suit against petitioner, the National Society of Professional Engineers, alleging that petitioner's canon of ethics prohibiting its members from submitting competitive bids for engineering services suppressed competition in violation of § 1 of the Sherman Act. Petitioner defended on the ground, inter alia, that under the Rule of Reason the canon was justified because it was adopted by members of a learned profession for the purpose of minimizing the risk that competition would produce inferior engineering work endangering the public safety. The District Court, granting an injunction against the canon, rejected this justification, holding that the canon on its face violated § 1 of the Sherman Act, thus making it unnecessary to make findings on the likelihood that competition would produce the dire consequences envisaged by petitioner. The Court of Appeals affirmed, although modifying the District Court's injunction in certain respects so that, as modified, it prohibits petitioner from adopting any official opinion, policy statement, or guideline stating or implying that competitive bidding is unethical. Held :
1. On its face, the canon in question restrains trade within the meaning of § 1 of the Sherman Act, and the Rule of Reason, under which the proper inquiry is whether the challenged agreement is one that promotes, or one that suppresses, competition, does not support a defense based on the assumption that competition itself is unreasonable. Pp. 686-696.
(a) The canon amounts to an agreement among competitors to refuse to discuss prices with potential customers until after negotiations have resulted in the initial selection of an engineer, and, while it is not price fixing as such, it operates as an absolute ban on competitive bidding, applying with equal force to both complicated and simple projects and to both inexperienced and sophisticated customers. Pp. 692-693.
(b) Petitioner's affirmative defense confirms rather than refutes the anticompetitive purpose and effect of its canon, and its attempt to justify, under the Rule of Reason, the restraint on competition imposed by the canon on the basis of the potential threat that competition poses to the public safety and the ethics of the engineering profession is nothing less than a frontal assault on the basic policy of the Sherman Act. Pp. 693-695.
(c) That engineers are often involved in large-scale projects significantly affecting the public safety does not justify any exception to the Sherman Act. Pp. 695-696.
(d) While ethical norms may serve to regulate and promote competition in professional services and thus fall within the Rule of Reason, petitioner's argument here is a far cry from such a position; and, although competition may not be entirely conducive to ethical behavior, that is not a reason, cognizable under the Sherman Act, for doing away with competition. P. 696.
2. The District Court's injunction, as modified by the Court of Appeals, does not abridge First Amendment rights. Pp. 696-699.
(a) The First Amendment does not "make it . . . impossible ever to enforce laws against agreements in restraint of trade," Giboney v. Empire Storage & Ice Co., 336 U.S. 490, 502, 69 S.Ct. 684, 691, 93 L.Ed. 834, and, although the District Court may consider the fact that its injunction may impinge upon rights that would otherwise be constitutionally protected, those protections do not prevent it from remedying the antitrust violations. Pp. 697-698.
(b) The standard against which the injunction must be judged is whether the relief represents a reasonable method of eliminating the consequences of the illegal conduct, and the injunction meets this standard. P. 698.
(c) If petitioner wishes to adopt some other ethical guideline more closely confined to the legitimate objective of preventing deceptively low bids, it may move the District Court to modify its injunction. Pp. 698-699.
181 U.S.App.D.C. 41, 555 F.2d 978, affirmed.
Lee Loevinger, Washington, D. C., for petitioner.
Howard E. Shapiro, Washington, D. C., for respondent.
Mr. Justice STEVENS delivered the opinion of the Court.
1
This is a civil antitrust case brought by the United States to nullify an association's canon of ethics prohibiting competitive bidding by its members. The question is whether the canon may be justified under the Sherman Act, 26 Stat. 209, as amended, 15 U.S.C. § 1 et seq. (1976 ed.), because it was adopted by members of a learned profession for the purpose of minimizing the risk that competition would produce inferior engineering work endangering the public safety. The District Court rejected this justification without making any findings on the likelihood that competition would produce the dire consequences foreseen by the association.1 The Court of Appeals affirmed.2 We granted certiorari to decide whether the District Court should have considered the factual basis for the proffered justification before rejecting it. 434 U.S. 815, 98 S.Ct. 51, 54 L.Ed.2d 70. Because we are satisfied that the asserted defense rests on a fundamental misunderstanding of the Rule of Reason frequently applied in antitrust litigation, we affirm.
2
* Engineering is an important and learned profession. There are over 750,000 graduate engineers in the United States, of whom about 325,000 are registered as professional engineers. Registration requirements vary from State to State, but usually require the applicant to be a graduate engineer with at least four years of practical experience and to pass a written examination. About half of those who are registered engage in consulting engineering on a fee basis. They perform services in connection with the study, design, and construction of all types of improvements to real property—bridges, office buildings, airports, and factories are examples. Engineering fees, amounting to well over $2 billion each year, constitute about 5% of total construction costs. In any given facility, approximately 50% to 80% of the cost of construction is the direct result of work performed by an engineer concerning the systems and equipment to be incorporated in the structure.
3
The National Society of Professional Engineers (Society) was organized in 1935 to deal with the nontechnical aspects of engineering practice, including the promotion of the professional, social, and economic interests of its members. Its present membership of 69,000 resides throughout the United States and in some foreign countries. Approximately 12,000 members are consulting engineers who offer their services to governmental, industrial, and private clients. Some Society members are principals or chief executive officers of some of the largest engineering firms in the country.
4
The charges of a consulting engineer may be computed in different ways. He may charge the client a percentage of the cost of he project, may set his fee at his actual cost plus overhead plus a reasonable profit, may charge fixed rates per hour for different types of work, may perform an assignment for a specific sum, or he may combine one or more of these approaches. Suggested fee schedules for particular types of services in certain areas have been promulgated from time to time by various local societies. This case does not, however, involve any claim that the National Society has tried to fix specific fees, or even a specific method of calculating fees. It involves a charge that the members of the Society have unlawfully agreed to refuse to negotiate or even to discuss the question of fees until after a prospective client has selected the engineer for a particular project. Evidence of this agreement is found in § 11(c) of the Society's Code of Ethics, adopted in July 1964.3
5
The District Court found that the Society's Board of Ethical Review has uniformly interpreted the "ethical rules against competitive bidding for engineering services as prohibiting the submission of any form of price information to a prospective customer which would enable that customer to make a price comparison on engineering services."4 If the client requires that such information be provided, then § 11(c) imposes an obligation upon the engineering firm to withdraw from consideration for that job. The Society's Code of Ethics thus "prohibits engineers from both soliciting and submitting such price information," 389 F.Supp. 1193, at 1206 (DC 1974),5 and seeks to preserve the profession's "traditional" method of selecting professional engineers. Under the traditional method, the client initially selects an engineer on the basis of background and reputation, not price.6
6
In 1972 the Government filed its complaint against the Society alleging that members had agreed to abide by canons of ethics prohibiting the submission of competitive bids for engineering services and that, in consequence, price competition among the members had been suppressed and customers had been deprived of the benefits of free and open competition. The complaint prayed for an injunction terminating the unlawful agreement.
7
In its answer the Society admitted the essential facts alleged by the Government and pleaded a series of affirmative defenses, only one of which remains in issue. In that defense, the Society averred that the standard set out in the Code of Ethics was reasonable because competition among professional engineers was contrary to the public interest. It was averred that it would be cheaper and easier for an engineer "to design and specify inefficient and unnecessarily expensive structures and methods of construction."7 Accordingly, competitive pressure to offer engineering services at the lowest possible price would adversely affect the quality of engineering. Moreover, the practice of awarding engineering contracts to the lowest bidder, regardless of quality, would be dangerous to the public health, safety, and welfare. For these reasons, the Society claimed that its Code of Ethics was not an "unreasonable restraint of interstate trade or commerce."
8
The parties compiled a voluminous discovery and trial record. The District Court made detailed findings about the engineering profession, the Society, its members' participation in interstate commerce, the history of the ban on competitive bidding, and certain incidents in which the ban appears to have been violated or enforced. The District Court did not, however, make any finding on the question whether, or to what extent, competition had led to inferior engineering work which, in turn, had adversely affected the public health, safety, or welfare. That inquiry was considered unnecessary because the court was convinced that the ethical prohibition against competitive bidding was "on its face a tampering with the price structure of engineering fees in violation of § 1 of the Sherman Act." 389 F.Supp., at 1200.
9
Although it modified the injunction entered by the District Court,8 the Court of Appeals affirmed its conclusion that the agreement was unlawful on its face and therefore "illegal without regard to claimed or possible benefits." 181 U.S.App.D.C. 41, 47, 555 F.2d 978, 984.
II
10
In Goldfarb v. Virginia State Bar, 421 U.S. 773, 95 S.Ct. 2004, 44 L.Ed.2d 572, the Court held that a bar association's rule prescribing minimum fees for legal services violated § 1 of the Sherman Act. In that opinion the Court noted that certain practices by members of a learned profession might survive scrutiny under the Rule of Reason even though they would be viewed as a violation of the Sherman Act in another context. The Court said:
11
"The fact that a restraint operates upon a profession as distinguished from a business is, of course, relevant in determining whether that particular restraint violates the Sherman Act. It would be unrealistic to view the practice of professions as interchangeable with other business activities, and automatically to apply to the professions antitrust concepts which originated in other areas. The public service aspect, and other features of the professions, may require that a particular practice, which could properly be viewed as a violation of the Sherman Act in another context, be treated differently. We intimate no view on any other situation than the one with which we are confronted today." 421 U.S., at 788-789, n. 17, 95 S.Ct., at 2013.
12
Relying heavily on this footnote, and on some of the major cases applying a Rule of Reason—principally Mitchel v. Reynolds, 1 P.Wms. 181, 24 Eng.Rep. 347 (1711); Standard Oil Co. v. United States, 221 U.S. 1, 31 S.Ct. 502, 55 L.Ed. 619; Chicago Board of Trade v. United States, 246 U.S. 231, 38 S.Ct. 242, 62 L.Ed. 683; and Continental T. V., Inc. v. GTE Sylvania, Inc., 433 U.S. 36, 97 S.Ct. 2549, 53 L.Ed.2d 568—petitioner argues that its attempt to preserve the profession's traditional method of setting fees for engineering services is a reasonable method of forestalling the public harm which might be produced by unrestrained competitive bidding. To evaluate this argument it is necessary to identify the contours of the Rule of Reason and to discuss its application to the kind of justification asserted by petitioner.
13
A. The Rule of Reason.
14
One problem presented by the language of § 1 of the Sherman Act is that it cannot mean what it says. The statute says that "every" contract that restrains trade is unlawful.9 But, as Mr. Justice Brandeis perceptively noted, restraint is the very essence of every contract;10 read literally, § 1 would outlaw the entire body of private contract law. Yet it is that body of law that establishes the enforceability of commercial agreements and enables competitive markets—indeed, a competitive economy—to function effectively.
15
Congress, however, did not intend the text of the Sherman Act to delineate the full meaning of the statute or its application in concrete situations. The legislative history makes it perfectly clear that it expected the courts to give shape to the statute's broad mandate by drawing on common-law tradition.11 The Rule of Reason, with its origins in common-law precedents long antedating the Sherman Act, has served that purpose. It has been used to give the Act both flexibility and definition, and its central principle of antitrust analysis has remained constant. Contrary to its name, the Rule does not open the field of antitrust inquiry to any argument in favor of a challenged restraint that may fall within the realm of reason. Instead, it focuses directly on the challenged restraint's impact on competitive conditions.
16
This principle is apparent in even the earliest of cases applying the Rule of Reason, Mitchel v. Reynolds, supra. Mitchel involved the enforceability of a promise by the seller of a bakery that he would not compete with the purchaser of his business. The covenant was for a limited time and applied only to the area in which the bakery had operated. It was therefore upheld as reasonable, even though it deprived the public of the benefit of potential competition. The long-run benefit of enhancing the marketability of the business itself—and thereby providing incentives to develop such an enterprise outweighed the temporary and limited loss of competition.12
17
The Rule of Reason suggested by Mitchel v. Reynolds has been regarded as a standard for testing the enforceability of covenants in restraint of trade which are ancillary to a legitimate transaction, such as an employment contract or the sale of a going business. Judge (later Mr. Chief Justice) Taft so interpreted the Rule in his classic rejection of the argument that competitors may lawfully agree to sell their goods at the same price as long as the agreed-upon price is reasonable. United States v. Addyston Pipe & Steel Co., 85 F. 271, 282-283 (CA6 1898), aff'd, 175 U.S. 211, 20 S.Ct. 96, 44 L.Ed. 136. That case, and subsequent decisions by this Court, unequivocally foreclose an interpretation of the Rule as permitting an inquiry into the reasonableness of the prices set by private agreement.13
18
The early cases also foreclose the argument that because of the special characteristics of a particular industry, monopolistic arrangements will better promote trade and commerce than competition. United States v. Trans-Missouri Freight Assn., 166 U.S. 290, 17 S.Ct. 540, 41 L.Ed. 1007; United States v. Joint Traffic Assn., 171 U.S. 505, 573-577, 19 S.Ct. 25, 33-34, 43 L.Ed. 259. That kind of argument is properly addressed to Congress and may justify an exemption from the statute for specific industries,14 but it is not permitted by the Rule of Reason. As the Court observed in Standard Oil Co. v. United States, 221 U.S., at 65, 31 S.Ct., at 517, "restraints of trade within the purview of the statute . . . [can]not be taken out of that category by indulging in general reasoning as to the expediency or nonexpediency of having made the contracts, or the wisdom or want of wisdom of the statute which prohibited their being made."
19
The test prescribed in Standard Oil is whether the challenged contracts or acts "were unreasonably restrictive of competitive conditions." Unreasonableness under that test could be based either (1) on the nature or character of the contracts, or (2) on surrounding circumstances giving rise to the inference or presumption that they were intended to restrain trade and enhance prices.15 Under either branch of the test, the inquiry is confined to a consideration of impact on competitive conditions.16
20
In this respect the Rule of Reason oe has remained faithful to its origins. From Mr. Justice Brandeis' opinion for the Court in Chicago Board of Trade, to the Court opinion written by Mr. Justice Powell in Continental T. V., Inc., the Court has adhered to the position that the inquiry mandated by the Rule of Reason is whether the challenged agreement is one that promotes competition or one that suppresses competition. "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." 246 U.S., at 238, 38 S.Ct., at 243, quoted in 433 U.S., at 49 n. 15, 97 S.Ct., at 2557.17
21
There are, thus, two complementary categories of antitrust analysis. In the first category are agreements whose nature and necessary effect are so plainly anticompetitive that no elaborate study of the industry is needed to establish their illegality—they are "illegal per se." In the second category are agreements whose competitive effect can only be evaluated by analyzing the facts peculiar to the business, the history of the restraint, and the reasons why it was imposed. In either event, the purpose of the analysis is to form a judgment about the competitive significance of the restraint; it is not to decide whether a policy favoring competition is in the public interest, or in the interest of the members of an industry. Subject to exceptions defined by statute, that policy decision has been made by the Congress.18
22
Price is the "central nervous system of the economy," United States v. Socony-Vacuum Oil Co., 310 U.S. 150, 226 n. 59, 60 S.Ct. 811, 845, 84 L.Ed. 1129, and an agreement that "interfere[s] with the setting of price by free market forces" is illegal on its face. United States v. Container Corp., 393 U.S. 333, 337, 89 S.Ct. 510, 512, 21 L.Ed.2d 526. In this case we are presented with an agreement among competitors to refuse to discuss prices with potential customers until after negotiations have resulted in the initial selection of an engineer. While this is not price fixing as such, no elaborate industry analysis is required to demonstrate the anticompetitive character of such an agreement. It operates as an absolute ban on competitive bidding, applying with equal force to both complicated and simple projects and to both inexperienced and sophisticated customers. As the District Court found, the ban "impedes the ordinary give and take of the market place," and substantially deprives the customer of "the ability to utilize and compare prices in selecting engineering services." 404 F.Supp. 457, 460. On its face, this agreement restrains trade within the meaning of § 1 of the Sherman Act.
23
The Society's affirmative defense conf rms rather than refutes the anticompetitive purpose and effect of its agreement. The Society argues that the restraint is justified because bidding on engineering services is inherently imprecise, would lead to deceptively low bids, and would thereby tempt individual engineers to do inferior work with consequent risk to public safety and health.19 The logic of this argument rests on the assumption that the agreement will tend to maintain the price level; if it had no such effect, it would not serve its intended purpose. The Society nonetheless invokes the Rule of Reason, arguing that its restraint on price competition ultimately inures to the public benefit by preventing the production of inferior work and by insuring ethical behavior. As the preceding discussion of the Rule of Reason reveals, this Court has never accepted such an argument.
24
It may be, as petitioner argues, that competition tends to force prices down and that an inexpensive item may be inferior to one that is more costly. There is some risk, therefore, that competition will cause some suppliers to market a defective product. Similarly, competitive bidding for engineering projects may be inherently imprecise and incapable of taking into account all the variables which will be involved in the actual performance of the project.20 Based on these considerations, a purchaser might conclude that his interest in quality—which may embrace the safety of the end product—outweighs the advantages of achieving cost savings by pitting one competitor against another. Or an individual vendor might independently refrain from price negotiation until he has satisfied himself that he fully understands the scope of his customers' needs. These decisions might be reasonable; indeed, petitioner has provided ample documentation for that thesis. But these are not reasons that satisfy the Rule; nor are such individual decisions subject to antitrust attack.
25
The Sherman Act does not require competitive bidding;21 it prohibits unreasonable restraints on competition. Petitioner's ban on competitive bidding prevents all customers from making price comparisons in the initial selection of an engineer, and imposes the Society's views of the costs and benefits of competition on the entire marketplace. It is this restraint that must be justified under the Rule of Reason, and petitioner's attempt to do so on the basis of the potential threat that competition poses to the public safety and the ethics of its profession is nothing less than a frontal assault on the basic policy of the Sherman Act.
26
The Sherman Act reflects a legislative judgment that ultimately competition will produce not only lower prices, but also better goods and services. "The heart of our national economic policy long has been faith in the value of competition." Standard Oil Co. v. FTC, 340 U.S. 231, 248, 71 S.Ct. 240, 249, 95 L.Ed. 239. The assumption that competition is the best method of allocating resources in a free market recognizes that all elements of a bargain—quality, service, safety, and durability—and not just the immediate cost, are favorably affected by the free opportunity to select among alternative offers. Even assuming occasional exceptions to the presumed consequences of competition, the statutory policy precludes inquiry into the question whether competition is good or bad.
27
The fact that engineers are often involved in large-scale projects significantly affecting the public safety does not alter our analysis. Exceptions to the Sherman Act for potentially dangerous goods and services would be tantamount to a repeal of the statute. In our complex economy the number of items that may cause serious harm is almost endless—automobiles, drugs, foods, aircraft components, heavy equipment, and countless others, cause serious harm to individuals or to the public at large if defectively made. The judiciary cannot indirectly protect the public against this harm by conferring monopoly privileges on the manufacturers.
28
By the same token, the cautionary footnote in Goldfarb, 421 U.S., at 788-789, n. 17, 95 S.Ct. at 2013, quoted supra, cannot be read as fashioning a broad exemption under the Rule of Reason for learned professions. We adhere to the view expressed in Goldfarb that, by their nature, professional services may differ significantly from other business services, and, accordingly, the nature of the competition in such services may vary. Ethical norms may serve to regulate and promote this competition, and thus fall within the Rule of Reason.22 But the Society's argument in this case is a far cry from such a position. We are faced with a contention that a total ban on competitive bidding is necessary because otherwise engineers will be tempted to submit deceptively low bids. Certainly, the problem of professional deception is a proper subject of an ethical canon. But, once again, the equation of competition with deception, like the similar equation with safety hazards, is simply too broad; we may assume that competition is not entirely conducive to ethical be avior, but that is not a reason, cognizable under the Sherman Act, for doing away with competition.
29
In sum, the Rule of Reason does not support a defense based on the assumption that competition itself is unreasonable. Such a view of the Rule would create the "sea of doubt" on which Judge Taft refused to embark in Addyston, 85 F., at 284, and which this Court has firmly avoided ever since.
III
30
The judgment entered by the District Court, as modified by the Court of Appeals,23 prohibits the Society from adopting any official opinion, policy statement, or guideline stating or implying that competitive bidding is unethical.24 Petitioner argues that this judgment abridges its First Amendment rights.25 We find no merit in this contention.
31
Having found the Society guilty of a violation of the Sherman Act, the District Court was empowered to fashion appropriate restraints on the Society's future activities both to avoid a recurrence of the violation and to eliminate its consequences. See, e. g., International Salt Co. v. United States, 332 U.S. 392, 400-401, 68 S.Ct. 12, 17, 92 L.Ed. 20; United States v. Glaxo Group, Ltd., 410 U.S. 52, 64, 93 S.Ct. 861, 868, 35 L.Ed.2d 104. While the resulting order may curtail the exercise of liberties that the Society might otherwise enjoy, that is a necessary and, in cases such as this, unavoidable consequence of the violation. Just as an injunction against price fixing abridges the freedom of businessmen to talk to one another about prices, so too the injunction in this case must restrict the Society's range of expression on the ethics of competitive bidding.26 The First Amendment does not "make it . . . impossible ever to enforce laws against agreements in restraint of trade . . . ." Giboney v. Empire Storage & Ice Co., 336 U.S. 490, 502, 69 S.Ct. 684, 691, 93 L.Ed. 834. In fashioning a remedy, the District Court may, of course, consider the fact that its injunction may impinge upon rights that would otherwise be constitutionally protected, but those protections do not prevent it from remedying the antitrust violations.
32
The standard against which the order must be judged is whether the relief represents a reasonable method of eliminating the consequences of the illegal conduct. We agree with the Court of Appeals that the injunction, as modified, meets this standard. While it goes beyond a simple proscription against the precise conduct previously pursued that is entirely appropriate.
33
"The District Court is not obliged to assume, contrary to common experience, that a violator of the antitrust laws will relinquish the fruits of his violation more completely than the court requires him to do. And advantages already in hand may be held by methods more subtle and informed, and more difficult to prove, than those which, in the first place, win a market. When the purpose to restrain trade appears fro a clear violation of law, it is not necessary that all of the untraveled roads to that end be left open and that only the worn one be closed." International Salt Co., supra, at 400, 68 S.Ct. at 17.
34
The Society apparently fears that the District Court's injunction, if broadly read, will block legitimate paths of expression on all ethical matters relating to bidding.27 But the answer to these fears is, as the Court held in International Salt, that the burden is upon the proved transgressor "to bring any proper claims for relief to the court's attention." Ibid. In this case, the Court of Appeals specifically stated that "[i]f the Society wishes to adopt some other ethical guideline more closely confined to the legitimate objective of preventing deceptively low bids, it may move the district court for modification of the decree." 181 U.S.App.D.C., at 46, 555 F.2d, at 983. This is, we believe, a proper approach, adequately protecting the Society's interests. We therefore reject petitioner's attack on the District Court's order.
The judgment of the Court of Appeals is
35
Affirmed.
36
Mr. Justice BRENNAN took no part in the consideration or decision of this case.
37
Mr. Justice BLACKMUN, with whom Mr. Justice REHNQUIST joins, concurring in part and concurring in the judgment.
38
I join Parts I and III of the Court's opinion and concur in the judgment. I do not join Part II because I would not, at least for the moment, reach as far as the Court appears to me to do in intimating, ante, at 696, and n. 22, that any ethical rule with an overall anticompetitive effect promulgated by a professional society is forbidden under the Sherman Act. In my view, the decision in Goldfarb v. Virginia State Bar, 421 U.S. 773, 788-789, n. 17, 95 S.Ct. 2004, 2013, 44 L.Ed.2d 572 (1975), properly left to the Court some flexibility in considering how to apply traditional Sherman Act concepts to professions long consigned to self-regulation. Certainly, this case does not require us to decide whether the "Rule of Reason" as applied to the professions ever could take account of benefits other than increased competition. For even accepting petitioner's assertion that product quality is one such benefit, and that maintenance of the quality of engineering services requires that an engineer not bid before he has made full acquaintance with the scope of a client's desired project, Brief for Petitioner 49-50, 54, petitioner Society's rule is still grossly overbroad. As petitioner concedes, Tr. of Oral Arg. 47-48, § 11(c) forbids any simultaneous consultation between a client and several engineers, even where the client provides complete information to each about the scope and nature of the desired project before requesting price information. To secure a price estimate on a project, the client must purport to engage a single engineer, and so long as that engagement continues no other member of the Society is permitted to discuss the project with the client in order to provide comparative price information. Though § 11(c) does not fix prices directly, and though the customer retains the option of rejecting a particular engineer's offer and beginning negotiations all over again with another engineer, the forced process of sequential earch inevitably increases the cost of gathering price information, and hence will dampen price competition, without any calibrated role to play in preventing uninformed bids. Then, too, the Society's rule is overbroad in the aspect noted by Judge Leventhal, when it prevents any dissemination of competitive price information in regard to real property improvements prior to the engagement of a single engineer regardless of "the sophistication of the purchaser, the complexity of the project, or the procedures for evaluating price information." 181 U.S.App.D.C. 41, 45, 555 F.2d 978, 982 (1977).
39
My skepticism about going further in this case by shaping the Rule of Reason to such a narrow last as does the majority,* arises from the fact that there may be ethical rules which have a more than de minimis anticompetitive effect and yet are important in a progression's proper ordering. A medical association's prescription of standards of minimum competence for licensing or certification may lessen the number of entrants. A bar association's regulation of the permissible forms of price advertising for nonroutine legal services or limitation of in-person solicitation, see Bates v. State Bar of Arizona, 433 U.S. 350, 97 S.Ct. 2691, 53 L.Ed.2d 810 (1977), may also have the effect of reducing price competition. In acknowledging that "professional services may differ significantly from other business services" and that the "nature of the competition in such services may vary," ante, at 696, but then holding that ethical norms can pass muster under the Rule of Reason only if they promote competition, I am not at all certain that the Court leaves enough elbowroom for realistic application of the Sherman Act to professional services.
40
Mr. Chief Justice BURGER, concurring in part and dissenting in part.
41
I concur in the Court's judgment to the extent it sustains the finding of a violation of the Sherman Act but dissent from that portion of the judgment prohibiting petitioner from stating in its published standards of ethics the view that competitive bidding is unethical. The First Amendment guarantees the right to express such a position and that right cannot be impaired under the cloak of remedial judicial action.
1
389 F.Supp. 1193 (DC 1974).
2
181 U.S.App.D.C. 41, 555 F.2d 978 (1977). When the District Court's original judgment was entered, petitioner was entitled to appeal directly to this Court. We vacated the District Court's judgment for reconsideration in the light of our then recent decision in Goldfarb v. Virginia State Bar, 421 U.S. 773, 95 S.Ct. 2004, 44 L.Ed.2d 572. 422 U.S. 1031, 95 S.Ct. 2646, 45 L.Ed.2d 686. After reconsideration, the District Court re-entered its original judgment, 404 F.Supp. 457 (DC 1975), and petitioner then appealed to the Court of Appeals.
3
That section, which remained in effect at the time of trial, provided:
"Section 11—The Engineer will not compete unfairly with another engineer by attempting to obtain employment or advancement or professional engagements by competitive bidding . . . .
"c. He shall not solicit or submit engineering proposals on the basis of competitive bidding. Competitive bidding for professional engineering services is defined as the formal or informal submission, or receipt, of verbal or written estimates of cost or proposals in terms of dollars, man days of work required, percentage of construction cost, or any other measure of compensation whereby the prospective client may compare engineering services on a price basis prior to the time that one engineer, or one engineering organization, has been selected for negotiations. The disclosure of recommended fee schedules prepared by various engineering societies is not considered to constitute competitive bidding. An Engineer requested to submit a fee proposal or bid prior to the selection of an engineer or firm subject to the negotiation of a satisfactory contract, shall attempt to have the procedure changed to conform to ethical practices, but if not successful he shall withdraw from consideration for the proposed work. These principles shall be applied by the Engineer in obtaining the services of other professions." App. 9951.
4
389 F.Supp., at 1206. In addition to § 11(c) of the Society's Code of Ethics, see n. 3, supra, the Society's Board of Directors has adopted various "Professional Policy" statements. Policy statement 10-F was issued to "make it clear beyond all doubt" that the Society opposed competitive bidding for all engineering projects. 389 F.Supp., at 1206. This policy statement was replaced in 1972 by Policy 10-G which permits price quotations for certain types of engineering work—in particular, research and development projects.
5
Although the Society argues that it has never "enforced" its ban on competitive bidding, Reply Brief for Petitioner 15-18, the District Court specifically found that the record "support[s] a finding that NSPE and its members actively pursue a course of policing adherence to the competitive bid ban hrough direct and indirect communication with members and prospective clients." 389 F.Supp., at 1200. This finding has not been challenged as clearly erroneous.
6
Having been selected, the engineer may then, in accordance with the Society's canons of ethics, negotiate a satisfactory fee arrangement with the client. If the negotiations are unsuccessful, then the client may withdraw his selection and approach a new engineer. Id., at 1215.
7
The entire defense pleaded in the answer reads as follows:
"18. (a) The principles and standards contained in the NSPE Code of Ethics, particularly those contained in that part of the NSPE Code of Ethics set out above, are reasonable, necessary to the public health, safety and welfare insofar as they are affected by the work of professional engineers, and serve the public interest.
"(b) Experience has demonstrated that competitive bidding for professional engineering services is inconsistent with securing for the recipients of such services the most economical projects or structures. Testing, calculating and designing the most economical and efficient structures and methods of construction is complex, difficult and expensive. It is cheaper and easier to design and specify inefficient and unnecessarily expensive structures and methods of construction. Consequently, if professional engineers are required by competitive pressures to submit bids in order to obtain employment of their services, the inevitable tendency will be to offer professional engineering services at the lowest possible price. Although this may result in some lowering of the cost of professional engineering services it will inevitably result in increasing the overall cost and decreasing the efficiency of those structures and projects which require professional engineering design and specification work.
"(c) Experience has also demonstrated that competitive bidding in most instances and situations results in an award of the work to be performed to the lowest bidder, regardless of other factors such as ability, experience, expertise, skill, capability, learning and the like, and that such awards in the case of professional engineers endanger the public health, welfare and safety.
"(d) For the aforesaid reasons, the provisions of the NSPE Code of Ethics set out above are not, in any event, in unreasonable restraint of interstate trade or commerce." App. 21-22.
8
The Court of Appeals struck down the portion of the District Court's decree that ordered the Society to state that it did not consider competitive bidding to be unethical. 181 U.S.App.D.C., at 47, 555 F.2d, at 984. The court reasoned that this provision was "more intrusive than necessary to achieve fulfillment of the governmental interest." Ibid. The Government has not petitioned for review of that decision.
9
Section 1 of the Sherman Act, as set orth in 15 U.S.C. § 1 (1976 ed.), provides:
"Every contract, combination in the form of trust or otherwise, or conspiracy, in restraint of trade or commerce among the several States, or with foreign nations, is declared to be illegal . . . ."
10
"But the legality of an agreement or regulation cannot be determined by so simple a test, as whether it restrains competition. 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. 231, 238, 38 S.Ct. 242, 244, 62 L.Ed. 683.
See also United States v. Topco Associates, 405 U.S. 596, 606, 92 S.Ct. 1126, 1133, 31 L.Ed.2d 515:
"Were § 1 to be read in the narrowest possible way, any commercial contract could be deemed to violate it."
11
See 21 Cong.Rec. 2456 (1890) (comments of Sen. Sherman); see generally H. Thorelli, Federal Antitrust Policy 228-229 (1955).
12
"4thly, The fourth reason is in favour of these contracts, and is, that there may happen instances wherein they may be useful and beneficial, as . . . in case of an old man, who finding himself under such circumstances either of body or mind, as that he is likely to be a loser by continuing his trade, in this case it will be better for him to part with it for a consideration, that by selling his custom, he may procure to himself a livelihood, which he might probably have lost, by trading longer." 1 P.Wms., at 191, 24 Eng.Rep., at 350.
13
85 F., at 293. See also United States v. Trans-Missouri Freight Assn., 166 U.S. 290, 340-342, 17 S.Ct. 540, 558-559, 41 L.Ed. 1007.
14
Congress has exempted certain industries from the full reach of the Sherman Act. See, e. g., 7 U.S.C. §§ 291-292 (1976 ed.) (Capper-Volstead Act, agricultural cooperatives); 15 U.S.C. §§ 1011-1013 (1976 ed.) (McCarran-Ferguson Act, insurance); 49 U.S.C. § 5b (Reed-Bulwinkle Act, rail and motor carrier rate-fixing bureaus); 15 U.S.C. § 1801 (1976 ed.) (newspaper joint operating agreements).
15
"Without going into detail, and but very briefly surveying the whole field, it may be with accuracy said that the dread of enhancement of prices and of other wrongs which it was thought would flow from the undue limitation on competitive conditions caused by contracts or other acts of individuals or corporations, led, as a matter of public policy, to the prohibition or treating as illegal all contracts or acts which were unreasonably restrictive of competitive conditions, either from the nature or character of the contract or act, or where the surrounding circumstances were such as to justify the conclusion that they had not been entered into or performed with the legitimate purpose of reasonably forwarding personal interest and developing trade, but, on the contrary, were of such a character as to give rise to the inference or presumption that they had been entered into or done with the intent to do wrong to the general public and to limit the right of individuals, thus restraining the free flow of commerce and tending to bring about the evils, such as enhancement of prices, which were considered to be against public policy." 221 U.S., at 58, 31 S.Ct. at 515.
16
Throughout the Court's opinion the emphasis is on economic conceptions. For instance, the Court's description of the common-law treatment of engrossing and forestalling statutes noted that contracts which had been illegal on their face were later recognized as reasonable because they tended to promote competition. Id., at 55, 31 S.Ct., at 513. As was pointed out in the Report of the Attorney General's National Committee To Study the Antitrust Laws 11 (1955):
"While Standard Oil gave the courts discretion in interpreting the word 'every' in Section 1, such discretion is confined to consideration of whether in each case the conduct being reviewed under the Act constitutes an undue restraint of competitive conditions, or a monopolization, or an attempt to monopolize. This standard permits the courts to decide whether conduct is significantly and unreasonably anticompetitive in character or effect; it makes obsolete once prevalent arguments, such as, whether monopoly arra gements would be socially preferable to competition in a particular industry, because, for example, of high fixed costs or the risks of 'cut-throat' competition or other similar unusual conditions."
17
In Continental T. V., Inc., the Court explained the Rule of Reason standard as follows:
"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." 433 U.S., at 49, 97 S.Ct. at 2557.
The Court then analyzed the "market impact" of vertical restraints, noting their complexity because of the potential for a simultaneous reduction of intrabrand competition and stimulation of interbrand competition. Id., at 50-51, 97 S.Ct. at 2558. "Competitive impact" and "economic analysis" were emphasized throughout the opinion.
18
See generally Attorney General's Report, supra, n. 16, at 10-11; Bork, The Rule of Reason and the Per Se Concept: Price Fixing and Market Division, 74 Yale L.J. 775 (1965); L. Sullivan, Law of Antitrust 165-197 (1977).
B. The Ban on Competitive Bidding.
19
The Society also points out that competition, in the form of bargaining between the engineer and customer, is allowed under its canon of ethics once an engineer has been initially selected. See n. 6, supra. It then contends that its prohibition of competitive bidding regulates only the timing of competition, thus making this case analogous to Chicago Board of Trade, where the Court upheld an exchange rule which forbade exchange members from making purchases after the close of the day's session at any price other than the closing bid price. Indeed, petitioner has reprinted the Government's brief in that case to demonstrate that the Solicitor General regarded the exchange's rule as a form of price fixing. Reply Brief for Petitioner A1-A28. We find this reliance on Chicago Board of Trade misplaced for two reasons. First, petitioner's claim mistakenly treats negotiation between a single seller and a single buyer as the equivalent of competition between two or more potential sellers. Second, even if we were to accept the Society's equation of bargaining with price competition, our concern with Chicago Board of Trade is in its formulation of the proper test to be used in judging the legality of an agreement; that formulation unquestionably stresses impact on competition. Whatever one's view of the application of the Rule of Reason in that case, see Sullivan, supra n. 18, at 175-182, the Court considered the exchange's regulation of price information as having a positive effect on competition. 246 U.S., at 240-241, 38 S.Ct. at 244-245. The District Court's findings preclude a similar conclusion concerning the effect of the Society's "regulation."
20
We, of course, express no view on the truth of this assertion, although it might be noted that the Society has allowed competitive bidding for some types of engineering projects in this country, see n. 4, supra, and, at one time, allowed competitive bidding for all engineering work in foreign countries "as required by the laws, regulations or practices of the foreign country." pp. 6487. This rule, called the "When-in-Rome" clause, was abolished in 1968. Id., at 6344.
21
Indeed, Congress has decided not to require competitive bidding for Government purchases of engineering services. The Brooks Act, 40 U.S.C. §§ 541-544 (1970 ed., Supp. V), requires the Government to use a method of selecting engineers similar to the Society's "traditional method." See n. 6, supra. The Society relies heavily on the Brooks Act as evidence that its ban on competitive bidding is reasonable. The argument is without merit. The Brooks Act does not even purport to exempt engineering services from the antitrust laws, and the reasonableness of an individual purchaser's decision not to seek lower prices through competition does not authorize the vendors to conspire to impose that same decision on all other purchasers.
22
Courts have, for instance, upheld marketing restraints related to the safety of a product, provided that they have no anticompetitive effect and that they are reasonably ancillary to the seller's main purpose of protecting the public from harm or itself from product liability. See, e. g., Tripoli Co. v. Wella Corp., 425 F.2d 932 (CA3 1970) (en banc); cf. Continental T. V., 433 U.S., at 55 n. 23, 97 S.Ct., at 2560.
23
See n. 8, supra.
24
See App. 9974-9980.
25
Petitioner contends the judgment is both an unconstitutional prior restraint on speech and an unconstitutional prohibition against free association.
26
Thus, in Goldfarb, although the bar association believed that its fee schedule accurately reflected ethical price levels, it was nonetheless enjoined "from adopting, publishing, or distributing any future schedules of minimum or suggested fees." Goldfarb v. Virginia State Bar, 355 F.Supp. 491, 495-496 (ED Va.1973). See also United States v. National Assn. of Real Estate Boards, 339 U.S. 485, 70 S.Ct. 711, 94 L.Ed. 1007.
27
For instance, the Society argues that the injunction can be read as prohibiting it from opposing repeal of statutes such as the Brooks Act, see n. 21, supra, and that such a prohibition would violate the principles of the Noerr-Pennington doctrine. See Eastern Railroad Presidents Conference v. Noerr Motor Freight, Inc., 365 U.S. 127, 81 S.Ct. 523, 5 L.Ed.2d 464; United Mine Workers of America v. Pennington, 381 U.S. 657, 85 S.Ct. 1585, 14 L.Ed.2d 626. By its terms the injunction contains no such prohibition, and indeed the Government contends that "[n]othing in the judgment prevents NSPE and its members from attempting to influence governmental action . . . ." Brief for United States 60.
*
This Court has not always applied the Rule of Reason with such rigor even to commercial businesses. See Appalachian Coals, Inc. v. United States, 288 U.S. 344, 53 S.Ct. 471, 77 L.Ed. 825 (1933); Chicago Board of Trade v. United States, 246 U.S. 231, 38 S.Ct. 242, 62 L.Ed. 683 (1918); L. Sullivan, Law of Antitrust 175-182 (1977); R. Bork, The Antitrust Paradox 41-47, 56 (1978). I intimate no view as to the correctness of those decisions.
| 78
|
435 U.S. 702
98 S.Ct. 1370
55 L.Ed.2d 657
CITY OF LOS ANGELES, DEPARTMENT OF WATER AND POWER, et al., Petitioners,v.Marie MANHART et al.
No. 76-1810.
Argued Jan. 18, 1978.
Decided April 25, 1978.
Syllabus.
This suit was filed as a class action on behalf of present or former female employees of petitioner Los Angeles Department of Water and Power, alleging that the Department's requirement that female employees make larger contributions to its pension fund than male employees violated § 703(a)(1) of Title VII of the Civil Rights Act of 1964, which, inter alia, makes it unlawful for an employer to discriminate against any individual because of such individual's sex. The Department's pension plan was based on mortality tables and its own experience showing that female employees had greater longevity than male employees and that the cost of a pension for the average female retiree was greater than for the average male retiree because more monthly payments had to be made to the female. The District Court held that the contribution differential violated § 703(a)(1), and ordered a refund of all excess contributions antedating an amendment to the Department's pension plan, made while this suit was pending, that eliminated sexual distinctions in the plan's contributions and benefits. The Court of Appeals affirmed. Held:
1. The challenged differential in the Department's former pension plan violated § 703(a)(1). Pp. 707-718.
(a) The differential was discriminatory in its "treatment of a person in a manner which but for that person's sex would be different." The statute, which focuses on fairness to individuals rather than fairness to classes, precludes treating individuals as simply components of a group such as the sexual class here. Even though it is true that women as a class outlive men, that generalization cannot justify disqualifying an individual to whom it does not apply. There is no reason, moreover, to believe that Congress intended a special definition of discrimination in the context of employee group insurance, since in that context it is common and not considered unfair to treat different classes of risks as though they were the same. Pp. 707-711.
(b) Though the Department contends that the different contributions exacted from men and women were based on the factor of longevity rather than sex and thus constituted a statutory exemption authorized for a "differential based on any other factor other than sex," there is no evidence that any factor other than the employee's sex accounted for the differential here. Pp. 711-713.
(c) This case is readily distinguishable from General Electric Co. v. Gilbert, 429 U.S. 125, 97 S.Ct. 401, 50 L.Ed.2d 343, for here the pension plan discriminates on the basis of sex, whereas the plan in Gilbert discriminated on the basis of a special physical disability. Pp. 714-717.
2. It was inappropriate for the District Court to allow a retroactive monetary recovery in this case. Pp. 718-723.
(a) Though a presumption favors retroactive relief where a Title VII violation has been committed, Albemarle Paper Co. v. Moody, 422 U.S. 405, 95 S.Ct. 2362, 45 L.Ed.2d 280, the appropriateness of such relief in an individual case must be assessed. Here the District Court gave insufficient attention to the equitable nature of Title VII remedies. This was the first litigation challenging pension fund contribution differences based on valid actuarial tables, which the fund administrators may well have assumed justified the differential, and the resulting prohibition against sex-differentiated employee contributions constituted a marked departure from past practice. Pp. 719-721.
(b) In view of the grave consequences that drastic changes in legal rules can have on pension funds, such rules should not be given retroactive effect unless plainly commanded by legislative action. Pp. 721-723.
553 F.2d 581, vacated and remanded.
David J. Oliphant, Los Angeles, Cal., for petitioners.
Robert M. Dohrmann, Los Angeles, Cal., for respondents.
Mr. Justice STEVENS delivered the opinion of the Court.
1
As a class, women live longer than men. For this reason, the Los Angeles Department of Water and Power required its female employees to make larger contributions to its pension fund than its male employees. We granted certiorari to decide whether this practice discriminated against individual female employees because of their sex in violation of § 703(a)(1) of the Civil Rights Act of 1964, as amended.1
2
For many years the Department2 has administered retirement, disability, and death-benefit programs for its employees. Upon retirement each employee is eligible for a monthly retirement benefit computed as a fraction of his or her salary multiplied by years of service.3 The monthly benefits for men and women of the same age, seniority, and salary are equal. Benefits are funded entirely by contributions from the employees and the Department, augmented by the income earned on those contributions. No private insurance company is involved in the administration or payment of benefits.
3
Based on a study of mortality tables and its own experience, the Department determined that its 2,000 female employees, on the average, will live a few years longer than its 10,000 male employees. The cost of a pension for the average retired female is greater than for the average male retiree because more monthly payments must be made to the average woman. The Department therefore required female employees to make monthly contributions to the fund which were 14.84% higher than the contributions required of comparable male employees.4 Because employee contributions were withheld from paychecks a female employee took home less pay than a male employee earning the same salary.5
4
Since the effective date of the Equal Employment Opportunity Act of 1972,6 the Department has been an employer within the meaning of Title VII of the Civil Rights Act of 1964. See 42 U.S.C. § 2000e (1970 ed., Supp. V). In 1973, respondents7 brought this suit in the United States District Court for the Central District of California on behalf of a class of women employed or formerly employed by the Department. They prayed for an injunction and restitution of excess contributions.
5
While this action was pending, the California Legislature enacted a law prohibiting certain municipal agencies from requiring female employees to make higher pension fund contributions than males.8 The Department therefore amended its plan, effective January 1, 1975. The current plan draws no distinction, either in contributions or in benefits, on the basis of sex. On a motion for summary judgment, the District Court held that the contribution differential violated § 703(a)(1) and ordered a refund of all excess contributions made before the amendment of the plan.9 The United States Court of Appeals for the Ninth Circuit affirmed.10
6
The Department and various amici curiae contend that: (1) the differential in take-home pay between men and women was not discrimination within the meaning of § 703(a)(1) because it was offset by a difference in the value of the pension benefits provided to the two classes of employees; (2) the differential was based on a factor "other than sex" within the meaning of the Equal Pay Act of 1963 and was therefore protected by the so-called Bennett Amendment;11 (3) the rationale of General Electric Co. v. Gilbert, 429 U.S. 125, 97 S.Ct. 401, 50 L.Ed.2d 343, requires reversal; and (4) in any event, the retroactive monetary recovery is unjustified. We consider these contentions in turn.
7
* There are both real and fictional differences between women and men. It is true that the average man is taller than the average woman; it is not true that the average woman driver is more accident prone than the average man.12 Before the Civil Rights Act of 1964 was enacted, an employer could fashion his personnel policies on the basis of assumptions about the differences between men and women, whether or not the assumptions were valid.
8
It is now well recognized that employment decisions cannot be predicated on mere "stereotyped" impressions about the characteristics of males or females.13 Myths and purely habitual assumptions about a woman's inability to perform certain kinds of work are no longer acceptable reasons for refusing to employ qualified individuals, or for paying them less. This case does not, however, involve a fictional difference between men and women. It involves a generalization that the parties accept as unquestionably true: Women, as a class, do live longer than men. The Department treated its women employees differently from its men employees because the two classes are in fact different. It is equally true, however, that all individuals in the respective classes do not share the characteristic that differentiates the average class representatives. Many women do not live as long as the average man and many men outlive the average woman. The question, therefore, is whether the existence or nonexistence of "discrimination" is to be determined by comparison of class characteristics or individual characteristics. A "stereotyped" answer to that question may not be the same as the answer that the language and purpose of the statute command.
9
The statute makes it unlawful "to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, or national origin." 42 U.S.C. § 2000e-2(a)(1) (emphasis added). The statute's focus on the individual is unambiguous. It precludes treatment of individuals as simply components of a racial, religious, sexual, or national class. If height is required for a job, a tall woman may not be refused employment merely because, on the average, women are too short. Even a true generalization about the class is an insufficient reason for disqualifying an individual to whom the generalization does not apply.
10
That proposition is of critical importance in this case because there is no assurance that any individual woman working for the Department will actually fit the generalization on which the Department § policy is based. Many of those individuals will not live as long as the average man. While they were working, those individuals received smaller paychecks because of their sex, but they will receive no compensating advantage when they retire.
11
It is true, of course, that while contributions are being collected from the employees, the Department cannot know which individuals will predecease the average woman. Therefore, unless women as a class are assessed an extra charge, they will be subsidized, to some extent, by the class of male employees.14 It follows, according to the Department, that fairness to its class of male employees justifies the extra assessment against all of its female employees.
12
But the question of fairness to various classes affected by the statute is essentially a matter of policy for the legislature to address. Congress has decided that classifications based on sex, like those based on national origin or race, are unlawful. Actuarial studies could unquestionably identify differences in life expectancy based on race or national origin, as well as sex.15 But a statute that was designed to make race irrelevant in the employment market, see Griggs v. Duke Power Co., 401 U.S. 424, 436, 91 S.Ct. 849, 856, 28 L.Ed.2d 158, could not reasonably be construed to permit a take-home-pay differential based on a racial classification.16
13
Even if the statutory language were less clear, the basic policy of the statute requires that we focus on fairness to individuals rather than fairness to classes. Practices that classify employees in terms of religion, race, or sex tend to preserve traditional assumptions about groups rather than thoughtful scrutiny of individuals. The generalization involved in this case illustrates the point. Separate mortality tables are easily interpreted as reflecting innate differences between the sexes; but a significant part of the longevity differential may be explained by the social fact that men are heavier smokers than women.17
14
Finally, there is no reason to believe that Congress intended a special definition of discrimination in the context of employee group insurance coverage. It is true that insurance is concerned with events that are individually unpredictable, but that is characteristic of many employment decisions. Individual risks, like individual performance, may not be predicted by resort to classifications proscribed by Title VII. Indeed, the fact that this case involves a group insurance program highlights a basic flaw in the Department's fairness argument. For when insurance risks are grouped, the better risks always subsidize the poorer risks. Healthy persons subsidize medical benefits for the less healthy; unmarried workers subsidize the pensions of married workers;18 persons who eat, drink, or smoke to excess may subsidize pension benefits for persons whose habits are more temperate. Treating different classes of risks as though they were the same for purposes of group insurance is a common practice that has never been considered inherently unfair. To insure the flabby and the fit as though they were equivalent risks may be more common than treating men and women alike;19 but nothing more than habit makes one "subsidy" seem less fair than the other.20
15
An employment practice that requires 2,000 individuals to contribute more money into a fund than 10,000 other employees simply because each of them is a woman, rather than a man, is in direct conflict with both the language and the policy of the Act. Such a practice does not pass the simple test of whether the evidence shows "treatment of a person in a manner which but for that person's sex would be different."21 It constitutes discrimination and is unlawful unless exempted by the Equal Pay Act of 1963 or some other affirmative justification.
II
16
Shortly before the enactment of Title VII in 1964, Senator Bennett proposed an amendment providing that a compensation differential based on sex would not be unlawful if it was authorized by the Equal Pay Act, which had been passed a year earlier.22 The Equal Pay Act requires employers to pay members of both sexes the same wages for equivalent work, except when the differential is pursuant to one of four specified exceptions.23 The Department contends that the fourth exception applies here. That exception authorizes a "differential based on any other factor other than sex."
17
The Department argues that the different contributions exacted from men and women were based on the factor of longevity rather than sex. It is plain, however, that any individual's life expectancy is based on a number of factors, of which sex is only one. The record contains no evidence that any factor other than the employee's sex was taken into account in calculating the 14.84% differential between the respective contributions by men and women. We agree with Judge Duniway's observation that one cannot "say that an actuarial distinction based entirely on sex is 'based on any other factor other than sex.' Sex is exactly what it is based on." 553 F.2d 581, 588 (1976).24
18
We are also unpersuaded by the Department's reliance on a colloquy between Senator Randolph and Senator Humphrey during the debate on the Civil Rights Act of 1964. Commenting on the Bennett Amendment, Senator Humphrey expressed his understanding that it would allow many differences in the treatment of men and women under industrial benefit plans, including earlier retirement options for women.25 Though he did not address differences in employee contributions based on sex, Senator Humphrey apparently assumed that the 1964 Act would have little, if any, impact on existing pension plans. His statement cannot, however, fairly be made the sole guide to interpreting the Equal Pay Act, which had been adopted a year earlier; and it is the 1963 statute, with its exceptions, on which the Department ultimately relies. We conclude that Senator Humphrey's isolated comment on the Senate floor cannot change the effect of the plain language of the statute itself.26
III
19
The Department argues that reversal is required by General Electric Co. v. Gilbert, 429 U.S. 125, 97 S.Ct. 401, 50 L.Ed.2d 343. We are satisfied, however, that neither the holding nor the reasoning of Gilbert is controlling.
20
In Gilbert the Court held that the exclusion of pregnancy from an employer's disability benefit plan did not constitute sex discrimination within the meaning of Title VII. Relying on the reasoning in Geduldig v. Aiello, 417 U.S. 484, 94 S.Ct. 2485, 41 L.Ed.2d 256, the Court first held that the General Electric plan did not involve "discrimination based upon gender as such."27 The two groups of potential recipients which that case concerned were pregnant women and nonpregnant persons. " 'While the first group is exclusively female, the second includes members of both sexes.' " 429 U.S., at 135, 97 S.Ct., at 407. In contrast, each of the two groups of employees involved in this case is composed entirely and exclusively of members of the same sex. On its face, this plan discriminates on the basis of sex whereas the General Electric plan discriminated on the basis of a special physical disability.
21
In Gilbert the Court did note that the plan as actually administered had provided more favorable benefits to women as a class than to men as a class.28 This evidence supported the conclusion that not only had plaintiffs failed to establish a prima facie case by proving that the plan was discriminatory on its face, but they had also failed to prove any discriminatory effect.29
22
In this case, however, the Department argues that the absence of a discriminatory effect on women as a class justifies an employment practice which, on its face, discriminated against individual employees because of their sex. But even if the Department's actuarial evidence is sufficient to prevent plaintiffs from establishing a prima facie case on the theory that the effect of the practice on women as a class was discriminatory, that the evidence does not defeat the claim that the practice, on its face, discriminated against every individual woman employed by the Department.30
23
In essence, the Department is arguing that the prima facie showing of discrimination based on evidence of different contributions for the respective sexes is rebutted by its demonstration that there is a like difference in the cost of providing benefits for the respective classes. That argument might prevail if Title VII, contained a cost justification defense comparable to the affirmative defense available in a price discrimination suit.31 But neither Congress nor the courts have recognized such a defense under Title VII.32
24
Although we conclude that the Department's practice violated Title VII, we do not suggest that the statute was intended to revolutionize the insurance and pension industries. All that is at issue today is a requirement that men and women make unequal contributions to an employer-operated pension fund. Nothing in our holding implies that it would be unlawful for an employer to set aside equal retirement contributions for each employee and let each retiree purchase the largest benefit which his or her accumulated contributions could command in the open market.33 Nor does it call into question the insurance industry practice of considering the composition of an employer's work force in determining the probable cost of a retirement or death benefit plan.34 Finally, we recognize that in a case of this kind it may be necessary to take special care in fashioning appropriate relief.
IV
25
The Department challenges the District Court's award of retroactive relief to the entire class of female employees and retirees. Title VII does not require a district court to grant any retroactive relief. A court that finds unlawful discrimination "may enjoin [the discrimination] . . . and order such affirmative action as may be appropriate, which may include, but is not limited to, reinstatement . . . with or wi hout back pay . . . or any other equitable relief as the court deems appropriate." 42 U.S.C. § 2000e-5(g) (1970 ed., Supp. V). To the point of redundancy, the statute stresses that retroactive relief "may" be awarded if it is "appropriate."
26
In Albemarle Paper Co. v. Moody, 422 U.S. 405, 95 S.Ct. 2362, 45 L.Ed.2d 280, the Court reviewed the scope of a district court's discretion to fashion appropriate remedies for a Title VII violation and concluded that "backpay should be denied only for reasons which, if applied generally, would not frustrate the central statutory purposes of eradicating discrimination throughout the economy and making persons whole for injuries suffered through past discrimination." Id., at 421, 95 S.Ct., at 2373. Applying that standard, the Court ruled that an award of backpay should not be conditioned on a showing of bad faith. Id., at 422-423, 95 S.Ct., at 2373-2374. But the Albemarle Court also held that backpay was not to be awarded automatically in every case.35
27
The Albemarle presumption in favor of retroactive liability can seldom be overcome, but it does not make meaningless the district courts' duty to determine that such relief is appropriate. For several reasons, we conclude that the District Court gave insufficient attention to the equitable nature of Title VII remedies.36 Although we now have no doubt about the application of the statute in this case, we must recognize that conscientious and intelligent administrators of pension funds, who did not have the benefit of the extensive briefs and arguments presented to us, may well have assumed that a program like the Department's was entirely lawful. The courts had been silent on the question, and the administrative agencies had conflicting views.37 The Department's failure to act more swiftly is a sign, not of its recalcitrance, but of the problem's complexity. As commentators have noted, pension administrators could reasonably have thought it unfair—or even illegal—to make male employees shoulder more than their "actuarial share" of the pension burden.38 There is no reason to believe that the threat of a backpay award is needed to cause other administrators to amend their practices to conform to this decision.
28
Nor can we ignore the potential impact which changes in rules affecting insurance and pension plans may have on the economy. Fifty million Americans participate in retirement plans other than Social Security. The assets held in trust for these employees are vast and growing—more than $400 billion was reserved for retirement benefits at the end of 1976 and reserves are increasing by almost $50 billion a year.39 These plans, like other forms of insurance depend on the accumulation of large sums to cover contingencies. The amounts set aside are determined by a painstaking assessment of the insurer's likely liability. Risks that the insurer foresees will be included in the calculation of liability, and the rates or contributions charged will reflect that calculation. The occurrence of major unforeseen contingencies, however, jeopardizes the insurer's solvency and, ultimately, the insureds' benefits. Drastic changes in the legal rules governing pension and insurance funds, like other unforeseen events, can have this effect. Consequently, the rules that apply to these funds should not be applied retroactively unless the legislature has plainly commanded that result.40 The EEOC itself has recognized that the administrators of retirement plans must be given time to adjust gradually to Title VII's demands.41 Courts have also shown sensitivity to the special dangers of retroactive Title VII awards in this field. See Rosen v. Public Serv. Elec. & Gas Co., 328 F.Supp. 454, 466-468 (DCNJ 1971).
29
There can be no doubt that the prohibition against sex-differentiated employee contributions represents a marked departure from past practice. Although Title VII was enacted in 1964, this is apparently the first litigation challenging contribution differences based on valid actuarial tables. Retroactive liability could be devastating for a pension fund.42 The harm would fall in large part on innocent third parties. If, as the courts below apparently contemplated, the plaintiffs' contributions are recovered from the pension fund,43 the administrators of the fund will be forced to meet unchanged obligations with diminished assets.44 If the reserve proves inadequate, either the expectations of all retired employees will be disappointed or current employees will be forced to pay not only for their own future security but also for the unanticipated reduction in the contributions of past employees.
30
Without qualifying the force of the Albemarle presumption in favor of retroactive relief, we conclude that it was error to grant such relief in this case. Accordingly, although we agree with the Court of Appeals' analysis of the statute, we vacate its judgement and remand the case for further proceedings consistent with this opinion.
31
It is so ordered.
32
Mr. Justice BRENNAN took no part in the consideration or decision of this case.
33
Mr. Justice BLACKMUN, concurring in part and concurring in the judgment.
34
Mr. Justice Stewart wrote the opinion for the Court in Geduldig v. Aiello, 417 U.S. 484, 94 S.Ct. 2485, 41 L.Ed.2d 256 (1974), and joined the Court's opinion in General Electric Co. v. Gilbert, 429 U.S. 125, 97 S.Ct. 401, 50 L.Ed.2d 343 (1976). Mr. Justice White and Mr. Justice Powell joined both Geduldig and General Electric. Mr. Justice STEVENS, who writes the opinion for the Court in the present case, joined the dissent in General Electric. 429 U.S., at 160, 97 S.Ct., at 420. Mr. Justice MARSHALL, who joins the Court's opinion in large part here, dissented in both Geduldig and General Electric. 417 U.S., at 497, 94 S.Ct., at 2492; 429 U.S., at 146, 97 S.Ct., at 413. My own discomfort with the latter case was apparent, I believe, from my separate concurrence there. Ibid.
35
These "lineups" surely are not without significance. The participation of my Brothers STEWART, WHITE, and POWELL in today's majority opinion should be a sign that the decision in this case is not in tension with Geduldig and General Electric and, indeed, is wholly consistent with them. I am not at all sure that this is so; the votes of Mr. Justice MARSHALL and Mr. Justice STEVENS would indicate quite the contrary.
36
Given the decisions in Geduldig and General Electric —the one constitutional, the other statutory—the present case just cannot be an easy one for the Court. I might have thought that those decisions would have required the Court to conclude that the critical difference in the Department's pension payments was based on life expectancy, a nonstigmatizing factor that demonstrably differentiates females from males and that is not measurable on an individual basis. I might have thought, too, that there is nothing arbitrary, irrational, or "discriminatory" about recognizing the objective and accepted (see ante, at 704, 707, and 722) disparity in female-male life expectancies in computing rates for retirement plans. Moreover, it is unrealistic to attempt to force, as the Court does, an individualized analysis upon what is basically an insurance context. Unlike the possibility, for example, of properly testing job applicants for qualifications before employment, there is simply no way to determine in advance when a particular employee will die.
37
The Court's rationale, of course, is that Congress, by Title VII of the Civil Rights Act of 1964, as amended, intended to eliminate with certain exceptions, "race, color, religion, sex, or national origin," 42 U.S.C. § 2000e-2(a)(1), as factors upon which employers may act. A program such as the one challenged here does exacerbate gender consciousness. But the program under consideration in General Electric did exactly the same thing and yet was upheld against challenge.
38
The Court's distinction between the present case and General Electric —that the permitted classes there were "pregnant women and nonpregnant persons," both female and male, ante, p. 715 seems to me to be just too easy.* It is probably the only distinction that can be drawn. For me, it does not serve to distinguish the case on any principled basis. I therefore must conclude that today's decision cuts back on General Electric, and inferentially on Geduldig, the reasoning of which was adopted there, 429 U.S., at 133-136, 97 S.Ct., at 406-408, and, indeed, makes the recognition of those cases as continuing precedent somewhat questionable. I do not say that this is necessarily bad. If that is what Congress has chosen to do by Title VII—as the Court today with such assurance asserts—so be it. I feel, however, that we should meet the posture of the earlier cases head on and not by thin rationalization tha seeks to distinguish but fails in its quest.
39
I therefore join only Part IV of the Court's opinion, and concur in its judgment.
40
Mr. CHIEF JUSTICE BURGER, with whom Mr. Justice REHNQUIST joins, concurring in part and dissenting in part.
41
I join Part IV of the Court's opinion; as to Parts I, II, and III, I dissent.
42
Gender-based actuarial tables have been in use since at least 1843,1 and their statistical validity has been repeatedly verified.2 The vast life insurance, annuity, and pension plan industry is based on these tables. As the Court recognizes, ante, at 707, it is a fact that "women, as a class, do live longer than men." It is equally true that employers cannot know in advance when individual members of the classes will die. Ante, at 708. Yet, if they are to operate economically workable group pension programs, it is only rational to permit them to rely on statistically sound and proved disparities in longevity between men and women. Indeed, it seems to me irrational to assume Congress intended to outlaw use of the fact that, for whatever reasons or combination of reasons, women as a class outlive men.
43
The Court's conclusion that the language of the civil rights statute is clear, admitting of no advertence to the legislative history, such as there was, is not soundly based. An effect upon pension plans so revolutionary and discriminatory—this time favorable to women at the expense of men—should not be read into the statute without either a clear statement of that intent in the statute, or some reliable indication in the legislative history that this was Congress' purpose. The Court's casual dismissal of Senator Humphrey's apparent assumption that the "Act would have little, if any, impact on existing pension plans," ante, at 714, is to dismiss a significant manifestation of what impact on industrial benefit plans was contemplated. It is reasonably clear there was no intention to abrogate an employer's right, in this narrow and limited context, to treat women differently from men in the face of historical reliance on mortality experience statistics. Cf. ante, at 713 n. 25.
44
The reality of differences in human mortality is what mortality experience tables reflect. The difference is the added longevity of women. All the reasons why women statistically outlive men are not clear. But categorizing people on the basis of sex, the one acknowledged immutable difference between men and women, is to take into account all of the unknown reasons, whether biologically or culturally based, or both, which give women a significantly greater life expectancy than men. It is therefore true as the Court says, "that any individual's life expectancy is based on a number of factors, of which sex is only one." Ante, at 712. But it is not true that by seizing upon the only constant, "measurable" factor, no others were taken into account. All other factors, whether known but variable—or unknown—are the elements which automatically account for the actuarial disparity. And all are accounted for when the constant factor is used as a basis for determining the costs and benefits of a group pension plan.
45
Here, of course, petitioners are discriminating in take-home pay between men and women. Cf. General Electric Co. v. Gilbert, 429 U.S. 125, 97 S.Ct. 401, 50 L.Ed.2d 343 (1976); Nashville Gas Co. v. Satty, 434 U.S. 136, 98 S.Ct. 347, 54 L.Ed.2d 356 (1977). The practice of petitioners, however, falls squarely under the exemption provided by the Equal Pay Act of 1963, 29 U.S.C. § 206(d), incorporated into Title VII by the so-called Bennett Amendment, 78 Stat. 257, now 42 U.S.C. § 2000e-2(h). That exemption tells us that an employer may not discriminate between employees on the basis of sex by paying one sex lesser compensation that the other "except where such payment is made pursuant to . . . a differential based on any other factor other than sex . . .." The "other factor other than sex" is longevity; sex is the umbrella-constant under which all of the elements leading to differences in longevity are grouped and assimilated, and the only objective feature upon which an employer—or anyone else, including insurance companies—may reliably base a cost differential for the "risk" being insured.
46
This is in no sense a failure to treat women as "individuals" in violation of the statute, as the Court holds. It is to treat them as individually as it is possible to do in the face of the unknowable length of each individual life. Individually, every woman has the same statistical possibility of outliving men. This is the essence of basing decisions on reliable statistics when individual determinations are infeasible or, as here, impossible.
47
Of course, women cannot be disqualified from, for example, heavy labor just because the generality of women are thought not as strong as men—a proposition which perhaps may sometime be statistically demonstrable, but will remain individually refutable. When, however, it is impossible to tailor a program such as a pension plan to the individual, nothing should prevent application of reliable statistical facts to the individual, for whom the facts cannot be disproved until long after planning, funding, and operating the program have been undertaken.
48
I find it anomalous, if not contradictory, that the Court's opinion tells us, in effect, ante, at 717-718, and n. 33, that the holding is not really a barrier to responding to the complaints of men employees, as a group. The Court states that employers may give their employees precisely the same dollar amount and require them to secure their own annuities directly from an insurer, who, of course, is under no compulsion to ignore 135 years of accumulated, recorded longevity experience.3
49
Mr. Justice MARSHALL, concurring in part and dissenting in part.
50
I agree that Title VII of the Civil Rights Act of 1964, as amended, forbids petitioners' practice of requiring female employees to make larger contributions to a pension fund than do male employees. I therefore join all of the Court's opinion except Part IV.
51
I also agree with the Court's statement in Part IV that, once a Title VII violation is found, Albemarle Paper Co. v. Moody, 422 U.S. 405, 95 S.Ct. 2362, 45 L.Ed.2d 280 (1975) establishes a "presumption in favor of retroactive liability" and that this presumption "can seldom be overcome." Ante, at 719. But I do not agree that the presumption should be deemed overcome in this case, especially since the relief was granted by the District Court in the exercise of its discretion and was upheld by the Court of Appeals. I would affirm the decision below and therefore cannot join Part IV of the Court's opinion or the Court's judgment.
52
In Albermarle Paper Co. v. Moody, supra, this Court made clear that, subject to the presumption in favor of retroactive relief, the District Court retains its "traditional" equitable discretion "to locate 'a just result,' " with appellate review limited to determining " hether the District Court was 'clearly erroneous' in its factual findings and whether it 'abused' its . . . discretion." 422 U.S., at 424, 95 S.Ct., at 2375. See also Fed.Rule Civ.Proc. 52(a) (district court findings "shall not be set aside unless clearly erroneous"); Zenith Radio Corp. v. Hazeltine Research, Inc., 395 U.S. 100, 123, 89 S.Ct. 1562, 1576, 23 L.Ed.2d 129 (1969). The Court here does not assert that any findings of the District Court were clearly erroneous, nor does it conclude that there was any abuse of discretion. Instead, it states merely that the District Court gave "insufficient attention" to certain factors in striking the equitable balance. Ante, at 719.
53
The first such factor mentioned by the Court relates to the "complexity" of the issue presented here, which may have led some pension fund administrators to assume that "a program like the Department's was entirely lawful," and that the alternative of equal contributions was perhaps unlawful because of a perceived "unfair[ness]" to men. Ante, at 720. The District Court found, however, that petitioners "should have been placed on notice" of the illegality of requiring larger contributions from women on April 5, 1972, when the Equal Employment Opportunity Commission amended its regulations to make this illegality clear.1 The retroactive relief ordered by the District Court ran from April 5, 1972, through December 31, 1974, after which date petitioners changed to an equal contribution program. See ante, at 706. Even if the April 1972 beginning date were too early, as the Court contends, ante, at 719 n. 36,2 during the nearly three-year period involved there surely was some point at which "conscientious and intelligent administrators," ante, at 720, should have responded to the EEOC's guidelines. Yet the Court today denies all retroactive relief, without even knowing whether petitioners made any efforts to ascertain their particular plan's legality.
54
The other major factor relied on by the Court involves "the potential impact . . . on the economy" that might result from retroactive changes in "the rules" applying to pension and insurance funds. According to the Court, such changes could "jeopardiz[e] [an] insurer's solvency and, ultimately, the insureds' benefits." Ante, at 721. As with the first factor, however, little reference is made by the Court to the situation in this case. No claim is made by either petitioners o the Court that the relief granted here would in any way have threatened the plan's solvency, or indeed that risks of this nature were not "foresee[n]" and thus "included in the calculation of liability" and reflected in "the rates or contributions charged," ibid.3 No one has suggested, moreover, that the relatively modest award at issue—involving a small percentage of the amounts withheld from respondents' paychecks for pension purposes over a 33-month period, see 553 F.2d 581, 592 (CA9 1976)—could in any way be considered "devastating," ante, at 722. And if a "devastating" award were made in some future case, this Court would have ample opportunity to strike it down at that time.
55
The necessarily speculative character of the Court's analysis in Part IV is underscored by its suggestion that the retroactive relief in this case would have led to a reduction in the benefits paid to retirees or an increase in the contributions paid by current employees. Ante, at 722-723. It states that taking the award out of the pension fund was "apparently contemplated" by the courts below, ante, at 723, but the District Court gave no indication of where it thought the recovery would come from. The Court of Appeals listed a number of ultimate sources of the money here involved, including increased employer contributions to the fund or one lump-sum payment from the Department. 553 F.2d, at 592. Indeed, the Department itself contemplated that the money for the award would come from city revenues, Pet. for Cert. 30-31, with the Department thereby paying for this Title VII award in the same way that it would have to pay any ordinary backpay award arising from its discriminatory practices. Hence the possibility of "harm" falling on "innocent" retirees or employees, ante, at 723, is here largely chimerical.
56
There are thus several factors mentioned by the Court that might be important in some other case but that appear to provide little cause for concern in the case presently before us. To the extent that the Court believes that these factors were not adequately considered when the award of retroactive relief was made, moreover, surely the proper course would be a remand to the District Court for further findings and a new equitable assessment of the appropriate remedy. When the District Court was found to have abused its discretion by denying backpay in Albemarle, this Court did not take it upon itself to formulate an award; it remanded to t e District Court for this purpose. 422 U.S., at 424, 436, 95 S.Ct., at 2374, 2380. There is no more reason for the Court here to deny all retroactive relief on its own; once the relevant legal considerations are established, the task of finding the facts and applying the law to those facts is best left to the District Court, particularly when an equitable search for a " 'just result' " is involved, id., at 424, 95 S.Ct., at 2375.
57
In this case, however, I do not believe that a remand is necessary. The District Court considered the question of when petitioners could be charged with knowledge of the state of the law, see supra, at 729-730, and petitioners do not challenge the particular date selected or claim that they needed time to adjust their plan. As discussed above, moreover, no claim is made that the Department's or the plan's solvency would have been threatened, and it appears unlikely that either retirees or employees would have paid any part of the award. There is every indication, in short, that the factors which the Court thinks might be important in some hypothetical case are of no concern to the petitioners who would have had to pay the award in this case.
58
The Court today reaffirms "the force of the Albemarle presumption in favor of retroactive relief," ante, at 723, yet fails to give effect to the principal reason why the presumption exists. In Albemarle we emphasized that a "central" purpose of Title VII is "making persons whole for injuries suffered through past discrimination." 422 U.S., at 421, 95 S.Ct., at 2373; see id., at 418, 422, 95 S.Ct., at 2372, 2373. Respondents in this case cannot be "made whole" unless they receive a refund of the money that was illegally withheld from their paychecks by petitioners. Their claim to these funds is more compelling than is the claim in many backpay situations, where the person discriminated against receives payment for a period when he or she was not working. Here, as the Court of Appeals observed, respondents "actually earned the amount in question, but then had it taken from them in violation of Title VII." 553 F.2d, at 592. In view of the strength of respondents' "restitution"-like claim, ibid., and in view of the statute's "central" make-whole purpose, Albemarle, 422 U.S., at 421, 95 S.Ct., at 2373, I would affirm the judgment of the Court of Appeals.
1
The section provides:
"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 . . . ." 78 Stat. 255, 42 U.S.C. § 2000e-2(a)(1).
2
In addition to the Department itself, the petitioners include members of the Board of Commissioners of the Department and members of the plan's Board of Administration.
3
The plan itself is not in the record. In its brief the Department states that the plan provides for several kinds of pension benefits at the employee's option, and that the most common is a formula pension equal to 2% of the average monthly salary paid during the last year of employment times the number of years of employment. The benefit is guaranteed for life.
4
The Department contributes an amount equal to 110% of all employee contributions.
5
The significance of the disparity is illustrated by the record of one woman whose contributions to the fund (including interest on the amount withheld each month) amounted to $18,171.40; a similarly situated male would have contributed only $12,843.53.
6
86 Stat. 103 (effective Mar. 24, 1972).
7
In addition to five individual plaintiffs, respondents include the individuals' union, the International Brotherhood of Electrical Workers, Local Union No. 18.
8
See Cal.Govt.Code Ann. § 7500 (West Supp. 1978).
9
The court had earlier granted a preliminary injunction. 387 F.Supp. 980 (1975).
10
553 F.2d 581 (1976). Two weeks after the Ninth Circuit decision, this Court decided General Electric Co. v. Gilbert, 429 U.S. 125, 97 S.Ct. 401, 50 L.Ed.2d 343. In response to a petition for rehearing, a majority of the Ninth Circuit panel concluded that its original decision did not conflict with Gilbert. 553 F.2d, at 59 (1977). Judge Kilkenny dissented. Id., at 594.
11
See nn. 22 and 23, infra.
12
See Developments in the Law, Employment Discrimination and Title VII of the Civil Rights Act of 1964, 84 Harv.L.Rev. 1109, 1174 (1971).
13
"In forbidding employers to discriminate against individuals because of their sex, Congress intended to strike at the entire spectrum of disparate treatment of men and women resulting from sex stereotypes. Section 703(a)(1) subjects to scrutiny and eliminates such irrational impediments to job opportunities and enjoyment which have plagued women in the past." Sprogis v. United Air Lines, Inc., 444 F.2d 1194, 1198 (CA7 1971).
14
The size of the subsidy involved in this case is open to doubt, because the Department's plan provides for survivors' benefits. Since female spouses of male employees are likely to have greater life expectancies than the male spouses of female employees, whatever benefits men lose in "primary" coverage for themselves, they may regain in "secondary" coverage for their wives.
15
For example, the life expectancy of a white baby in 1973 was 72.2 years; a nonwhite baby could expect to live 65.9 years, a difference of 6.3 years. See Public Health Service, IIA Vital Statistics of the United States, 1973, Table 5-3.
16
Fortifying this conclusion is the fact that some States have banned higher life insurance rates for blacks since the 19th century. See generally M. James, The Metropolitan Life—A Study in Business Growth 338-339 (1947).
17
See R. Retherford, The Changing Sex Differential in Mortality 71-82 (1975). Other social causes, such as drinking or eating habits—perhaps even the lingering effects of past employment discrimination—may also affect the mortality differential.
18
A study of life expectancy in the United States for 1949-1951 showed that 20-year-old men could expect to live to 60.6 years of age if they were divorced. If married, they could expect to reach 70.9 years of age, a difference of more than 10 years. Id., at 93.
19
The record indicates, however, that the Department has funded its death-benefit plan by equal contributions from male and female employees. A death benefit—unlike a pension benefit—has less value for persons with longer life expectancies. Under the Department's concept of fairness, then, this neutral funding of death benefits is unfair to women as a class.
20
A variation on the Department's fairness theme is the suggestion that a gender-neutral pension plan would itself violate Title VII because of its disproportionately heavy impact on male employees. Cf. Griggs v. Duke Power Co., 401 U.S. 424, 91 S.Ct. 849, 28 L.Ed.2d 158. This suggestion has no force in the sex discrimination context because each retiree's total pension benefits are ultimately determined by his actual life span ; any differential in benefits paid to men and women in the aggregate is thus "based on [a] factor other than sex," and consequently immune from challenge under the Equal Pay Act, 29 U.S.C. § 206(d); cf. n. 24, infra. Even under Title VII itself—assuming disparate-impact analysis applies to fringe benefits, cf. Nashville Gas Co. v. Satty, 434 U.S. 136, 144-145, 98 S.Ct. 347, 352, 54 L.Ed.2d 356—the male employees would not prevail. Even a completely neutral practice will inevitably have some disproportionate impact on one group or another. Griggs does not imply, and this Court has never held, that discrimination must always be inferred from such consequences.
21
Developments in the Law, supra 1170; see also Sprogis v. United Air Lines, Inc., 444 F.2d, at 1205 (Stevens, J., dissenting).
22
The Bennett Amendment became part of § 703(h), which provides in part:
"It shall not be unlawful employment practice under this title for any employer to differentiate upon the basis of sex in determining the amount of the wages or compensation paid or to be paid to employees of such employer if such differentiation is authorized by the provisions of section 6(d) of the Fair Labor Standards Act of 1938, as amended (29 U.S.C. § 206(d))." 78 Stat. 257, 42 U.S.C. § 2000e-2(h).
23
The Equal Pay Act provides, in part:
"No e ployer having employees subject to any provisions of this section shall discriminate, within any establishment in which such employees are employed, between employees on the basis of sex by paying wages to employees in such establishment at a rate less than the rate at which he pays wages to employees of the opposite sex in such establishment for equal work on jobs the performance of which requires equal skill, effort, and responsibility, and which are performed under similar working conditions, except where such payment is made pursuant to (i) a seniority system; (ii) a merit system; (iii) a system which measures earnings by quantity or quality of production; or (iv) a differential based on any other factor other than sex: Provided, That an employer who is paying a wage rate differential in violation of this subsection shall not, in order to comply with the provisions of this subsection, reduce the wage rate of any employee." 77 Stat. 56, 29 U.S.C. § 206(d).
We need not decide whether retirement benefits or contributions to benefit plans are "wages" under the Act, because the Bennett Amendment extends the Act's four exceptions to all forms of "compensation" covered by Title VII. See n. 22, supra. The Department's pension benefits, and the contributions that maintain them, are "compensation" under Title VII. Cf. Peters v. Missouri-Pacific R. Co., 483 F.2d 490, 492 n. 3 (CA5 1973), cert. denied, 414 U.S. 1002, 94 S.Ct. 356, 38 L.Ed.2d 238.
24
The Department's argument is specious because its contribution schedule distinguished only imperfectly between long-lived and short-lived employees, while distinguishing precisely between male and female employees. In contrast, an entirely gender-neutral system of contributions and benefits would result in differing retirement benefits precisely "based on" longevity, for retirees with long lives would always receive more money than comparable employees with short lives. Such a plan would also distinguish in a crude way between male and female pensioners, because of the difference in their average life spans. It is this sort of disparity—and not an explicitly gender-based differential—that the Equal Pay Act intended to authorize.
25
"MR. RANDOLPH. Mr. President, I wish to ask of the Senator from Minnesota [Mr. Humphrey], who is the effective manager of the pending bill, a clarifying question on the provisions of title VII.
"I have in mind that the social security system, in certain respects, treats men and women differently. For example, widows' benefits are paid automatically; but a widower qualifies only if he is disabled or if he was actually supported by his deceased wife. Also, the wife of a retired employee entitled to social security receives an additional old age benefit; but the husband of such an employee does not. These differences in treatment as I recall are of long standing.
"Am I correct, I ask the Senator from Minnesota, in assuming that similar differences of treatment in industrial benefit plans, including earlier retirement options for women, may continue in operation under this bill, if it becomes law?
"MR. HUMPHREY. Yes. That point was made unmistakably clear earlier today by the adoption of the Bennett amendment; so there can be no doubt about it." 110 Cong.Rec. 13663-13664 (1964).
26
The administrative constructions of this provision look in two directions. The Wage and Hour Administrator, who is charged with enforcing the Equal Pay Act, has never expressly approved different employee contribution rates, but he has said that either equal employer contributions or equal benefits will satisfy the Act. 29 CFR § 800.116(d) (1977). At the same time, he has stated that a wage differential based on differences in the average costs of employing men and women is not based on a " 'factor other than sex.' " 29 CFR § 800.151 (1977). The Administrator's reasons for the second ruling are illuminating:
"To group employees solely on the basis of sex for purposes of comparison of costs necessarily rests on the assumption that the sex factor alone may justify the wage differential—an assumption plainly contrary to the terms and purpose of the Equal Pay Act. Wage differentials so based would serve only to perpetuate and promote the very discrimination at which the Act is directed, because in any grouping by sex of the employees to which the cost data relates, the group cost experience is necessarily assessed against an individual of one sex without regard to whether it costs an employer more or less to employ such individual than a particular individual of the opposite sex under similar working conditions in jobs requiring equal skill, effort, and responsibility." Ibid.
To the extent that they conflict, we find that the reasoning of § 800.151 has more "power to persuade" than the ipse dixit of § 800.116. Cf. Skidmore v. Swift & Co., 323 U.S. 134, 140, 65 S.Ct. 161, 164, 89 L.Ed. 124.
27
Quoting from the Geduldig opinion, the Court stated:
" '[T]his case is thus a far cry from cases like Reed v. Reed, 404 U.S. 71, [92 S.Ct. 251, 30 L.Ed.2d 225] (1971), and Frontiero v. Richardson, 411 U.S. 6 7 [93 S.Ct. 1764, 36 L.Ed.2d 583] (1973), involving discrimination based upon gender as such. The California insurance program does not exclude anyone from benefit eligibility because of gender but merely removes one physical condition—pregnancy—from the list of compensable disabilities.' " 429 U.S., at 134, 97 S.Ct., at 407.
After further quotation, the Court added:
"The quoted language from Geduldig leaves no doubt that our reason for rejecting appellee's equal protection claim in that case was that the exclusion of pregnancy from coverage under California's disability-benefits plan was not in itself discrimination based on sex." Id., at 135, 97 S.Ct., at 407.
28
See id., at 130-131, n. 9, 97 S.Ct., at 405.
29
As the Court recently noted in Nashville Gas Co. v. Satty, 434 U.S., at 144, 98 S.Ct., at 352, the Gilbert holding "did not depend on this evidence." Rather, the holding rested on the plaintiff's failure to prove either facial discrimination or discriminatory effect.
30
Some amici suggest that the Department's discrimination is justified by business necessity. They argue that, if no gender distinction is drawn, many male employees will withdraw from the plan, or even the Department, because they can get a better pension plan in the private market. But the Department has long required equal contributions to its death-benefit plan, see n. 19, supra, and since 1975 it has required equal contributions to its pension plan. Yet the Department points to no "adverse selection" by the affected employees, presumably because an employee who wants to leave the plan must also leave his job, and few workers will quit because one of their fringe benefits could theoretically be obtained at a marginally lower price on the open market. In short, there has been no showing that sex distinctions are reasonably necessary to the normal operation of the Department's retirement plan.
31
See 15 U.S.C. § 13(a) (1976 ed.). Under the Robinson-Patman Act, proof of cost differences justifies otherwise illegal price discrimination; it does not negate the existence of the discrimination itself. See FTC v. Morton Salt Co., 334 U.S. 37, 44-45, 68 S.Ct. 822, 827-828, 92 L.Ed. 1196. So here, even if the contribution differential were based on a sound and well-recognized business practice, it would nevertheless be discriminatory, and the defendant would be forced to assert an affirmative defense to escape liability.
32
Defe ses under Title VII and the Equal Pay Act are considerably narrower. See, e. g., n. 30, supra. A broad cost-differential defense was proposed and rejected when the Equal Pay Act became law. Representative Findley offered an amendment to the Equal Pay Act that would have expressly authorized a wage differential tied to the "ascertainable and specific added cost resulting from employment of the opposite sex." 109 Cong.Rec. 9217 (1963). He pointed out that the employment of women might be more costly because of such matters as higher turnover and state laws restricting women's hours. Id., at 9205. The Equal Pay Act's supporters responded that any cost differences could be handled by focusing on the factors other than sex which actually caused the differences, such as absenteeism or number of hours worked. The amendment was rejected as largely redundant for that reason Id., at 9217.
The Senate Report, on the other hand, does seem to assume that the statute may recognize a very limited cost defense, based on "all of the elements of the employment costs of both men and women." S.Rep. No. 176, 88th Cong., 1st Sess., 4 (1963). It is difficult to find language in the statute supporting even this limited defense; in any event, no defense based on the total cost of employing men and women was attempted in this case.
33
Title VII and the Equal Pay Act primarily govern relations between employees and their employer, not between employees and third parties. We do not suggest, of course, that an employer can avoid his responsibilities by delegating discriminatory programs to corporate shells. Title VII applies to "any agent" of a covered employer, 42 U.S.C. § 2000e(b) (1970 ed., Supp. V), and the Equal Pay Act applies to "any person acting directly or indirectly in the interest of an employer in relation to an employee." 29 U.S.C. § 203(d). In this case, for example, the Department could not deny that the administrative board was its agent after it successfully argued that the two were so inseparable that both shared the city's immunity from suit under 42 U.S.C. § 1983.
34
Title VII bans discrimination against an "individual" because of "such individual's" sex. 42 U.S.C. § 2000e-2(a)(1). The Equal Pay Act prohibits discrimination "within any establishment," and discrimination is defined as "paying wages to employees . . . at a rate less than the rate at which [the employer] pays wages to employees of the opposite sex" for equal work. 29 U.S.C. § 206(d)(1). Neither of these provisions makes it unlawful to determine the funding requirements for an establishment's benefit plan by considering the composition of the entire force.
35
Specifically, the Court held that a defendant prejudiced by his reliance on a plaintiff's initial waiver of any backpay claims could be absolved of backpay liability by a district court. 422 U.S., at 424, 95 S.Ct., at 2374. The Court reserved the question whether reliance of a different kind—on state "protective" laws requiring sex differentiation—would also save a defendant from liability. Id., at 423 n. 18, 95 S.Ct., at 2374.
36
According to the District Court, the defendant's liability for contributions did not begin until April 5, 1972, the day the Equal Employment Opportunity Commission issued an interpretation casting doubt on some varieties of pension fund discrimination. See 37 Fed.Reg. 6835-6837. Even assuming that the EEOC's decision should have put the defendants on notice that they were acting illegally, the date chosen by the District Court was too early. The court should have taken into account the difficulty of amending a major pension plan, a task that cannot be accomplished overnight. Moreover, it should not have given conclusive weight to the EEOC guideline. See General Electric Co. v. Gilbert, 429 U.S., at 141, 97 S.Ct., at 411. The Wage and Hour Administrator, whose rulings also provide a defense in sex discrimination cases, 29 U.S.C. § 259, refused to follow the EEOC. See n. 37, infra.
Further doubt about the District Court's equitable sensitivity to the impact of a refund order is raised by the court's decision to award the full difference between the contributions made by male employees and those made by female employees. This may give the victims of the discrimination more than their due. If an undifferentiated actuar al table had been employed in 1972, the contributions of women employees would no doubt have been lower than they were, but they would not have been as low as the contributions actually made by men in that period. The District Court should at least have considered ordering a refund of only the difference between contributions made by women and the contributions they would have made under an actuarially sound and nondiscriminatory plan.
37
As noted earlier, n. 26, supra, the position of the Wage and Hour Administrator has been somewhat confusing. His general rule rejected differences in average cost as a defense, but his more specific rule lent some support to the Department's view by simply requiring an employer to equalize either his contributions or employee benefits. Compare 29 CFR § 800.151 (1977) with § 800.116(d). The EEOC requires equal benefits. See 29 CFR §§ 1604.9(e) and (f) (1977). Two other agencies with responsibility for equal opportunity in employment adhere to the Wage and Hour Administrator's position. See 41 CFR § 60.20.3(c) (1977) (Office of Federal Contract Compliance); 45 CFR § 86.56(b)(2) (1976) (Dept. of Health, Education, and Welfare). See also 40 Fed.Reg. 24135 (1975) (HEW).
38
"If an employer establishes a pension plan, the charges of discrimination will be reversed: if he chooses a money purchase formula, women can complain that they receive less per month. While the employer and the insurance company are quick to point out that women as a group actually receive more when equal contributions are made—because of the long-term effect of compound interest—women employees still complain of discrimination. If the employer chooses the defined benefit formula, his male employees can allege discrimination because he contributes more for women as a group than for men as a group. The employer is in a dilemma: he is damned in the discrimination context no matter what he does." Note, Sex Discrimination and Sex-Based Mortality Tables, 53 B.U.L.Rev. 624, 633-634 (1973) (footnotes omitted).
39
American Council of Life Insurance, Pension Facts 1977, pp. 20-23.
40
In 1974, Congress underlined the importance of making only gradual and prospective changes in the rules that govern pension plans. In that year, Congress passed a bill regulating employee retirement programs. Employee Retirement Income Security Act of 1974, 88 Stat. 829. The bill paid careful attention to the problem of retroactivity. It set a wide variety of effective dates for different p ovisions of the new law; some of the rules will not be fully effective until 1984, a decade after the law was enacted. See, e. g., in 1970 ed., Supp. V of 29 U.S.C. § 1061(a) (Sept. 2, 1974); § 1031(b)(1) (Jan. 1, 1975); § 1086(b) (Dec. 31, 1975); § 1114(c)(4) (June 30, 1977); § 1381(c)(1) (Jan. 1, 1978); § 1061(c) (Dec. 31, 1980); § 1114(c) (June 30, 1984).
41
In February 1968, the EEOC issued guidelines disapproving differences in male and female retirement ages. In September of the same year, EEOC's general counsel gave an opinion that retirement plans could set gradual schedules for complying with the guidelines and that the judgment of the parties about how speedily to comply "would carry considerable weight." See Chastang v. Flynn & Emrich Co., 541 F.2d 1040, 1045 (CA4 1976).
42
The plaintiffs assert that the award in this case would not be crippling to these defendants, because it is limited to contributions between 1972 and 1975. But we cannot base a ruling on the facts of this case alone. As this Court noted in Albemarle Paper Co. v. Moody, 422 U.S. 405, 95 S.Ct. 2362, 45 L.Ed.2d 280, equitable remedies may be flexible but they still must be founded on principle. "Important national goals would be frustrated by a regime of discretion that 'produce[d] different results for breaches of duty in situations that cannot be differentiated in policy.' " Id., at 417, 95 S.Ct., at 2371. Employers are not liable for improper contributions made more than two years before a charge was filed with the EEOC. 42 U.S.C. § 2000e-5(g) (1970 ed., Supp. V). But it is not unusual for cases to remain within the EEOC for years after a charge is filed, see, e. g., Occidental Life Ins. Co. v. EEOC, 432 U.S. 355, 97 S.Ct. 2447, 53 L.Ed.2d 402 (3 years, 2 months), and that delay is but a prelude to the time inevitably consumed in civil litigation.
43
The Court of Appeals plainly expected the plan to pay the award, for it noted that imposing retroactive liability "might leave the plan somewhat under-funded." 553 F.2d, at 592. After making this observation, the Court of Appeals suggested a series of possible solutions to the problem—the benefits of all retired workers could be lowered, the burden on current employees could be increased, or the Department could decide to contribute enough to offset the plan's unexpected loss. Ibid.
44
Two commentators urging the illegality of gender-based pension plans noted the danger of "staggering damage awards," and they proposed as one cure the exercise of judicial "discretion [to] refuse a backpay award because of the hardship it would work on an employer who had acted in good faith . . . ." Bernstein & Williams, Title VII and the Problem of Sex Classifications in Pension Programs, 74 Colum.L.Rev. 1203, 1226, 1227 (1974).
*
It is of interest that Mr. Justice Stevens, in his dissent in General Electric, strongly protested the very distinction he now must make for the Court.
"It is not accurate to describe the program as dividing ' "potential recipients into two groups—pregnant women and nonpregnant persons." ' . . . The classification is between persons who face a risk of pregnancy and those who do not." 429 U.S., at 161-162, n. 5, 97 S.Ct., at 421.
1
See H. Moir, Sources and Characteristics of the Principal Mortality Tables 10, 14 (1919).
2
See, e. g., United Nations 1970 Demographic Yearbook 710-729 (1971).
3
This case, of course, has nothing to do with discrimination because of race, color, religion, or national origin, cf. ante, at 709, and nn. 15 and 16. The qualification the Bennett Amendment permitted by its incorporation of the Equal Pay Act pertained only to claims of discrimination because of sex.
1
The District Court quoted the following from EEOC regulations:
" 'It shall not be a defense under Title [VII] to a charge of sex discrimination in benefits that the cost of such benefits is greater with respect to one sex than the other.' 29 CFR § 1604.9(e)." 387 F.Supp. 980, 981 (CD Cal.1975). See also 29 CFR § 1604.9(b) (1977) (employer may not "discriminate between men and women with regard to fringe benefits") (also adopted Apr. 5, 1972); § 1604.9(f) (employer's pension plan may not "differentiat[e] in benefits on the basis of sex") (adopted Apr. 5, 1972).
2
The Court also contends that respondents were not entitled to a refund of the full difference between the contributions that they made and the contributions made by similarly situated men, but rather only to the difference between their contributions "and the contributions they would have made under an actuarially sound and nondiscriminatory plan." Ante, at 720, n. 36. This point, like the question of the appropriate date discussed in text, was not raised by petitioners and would in any event argue for some reduction in the retroactive relief awarded, not for a complete denial of such relief. On its merits, moreover, the District Court's decision to place the women employees on an equal footing with their male co-workers surely was not unreasonable; the alternative suggested by the Court would still have left the women with higher pension payments than similarly situated men for the relevant period.
3
When respondents filed their charge with the EEOC in June 1973, petitioners were put on notice of the possibility of retroactive relief being awarded. At that point they could have and, for all we know, may have—acted to ensure that the outcome of the litigation did not affect the viability of the plan by, for example, escrowing amounts to cover the contingency of losing to respondents. A prudent pension plan administrator, however certain of his legal position, could not reasonably have ignored such a contingency.
Thus, while the Court is correct that years of litigation may ensue after a charge is filed with the EEOC, this fact is largely irrelevant to the Court's concern about "major unforeseen contingencies," such as an award of retroactive relief adversely affecting the financial integrity of the pension plan. Ante, at 721, 722 n. 42. And it is hardly likely that a retroactive award for the period prior to the filing of the EEOC charge would be "devastating" for the plan, since, as the Court recognizes, this period could not in any case be longer than two years. Ante, at 722, and n. 42; see 42 U.S.C. § 2000e-5(g) (1970 ed., Supp. V). In the instant case the period from when the award began to run until the charge was filed with the EEOC was just over one year, from April 1972 to June 1973. Even the liability for this period, moreover, at most would have involved only a small percentage of the contributions made by women employees, as discussed in text, infra.
| 12
|
435 U.S. 734
98 S.Ct. 1388
55 L.Ed.2d 682
DEPARTMENT OF REVENUE OF the STATE OF WASHINGTON, Petitioner,v.ASSOCIATION OF WASHINGTON STEVEDORING COMPANIES et al.
No. 76-1706.
Argued Jan. 16, 17, 1978.
Decided April 26, 1978.
Syllabus
1. The State of Washington's business and occupation tax does not violate the Commerce Clause by taxing the interstate commerce activity of stevedoring within the State. Complete Auto Transit, Inc. v. brady, 430 U.S. 274, 97 S.Ct. 1076, 51 L.Ed.2d 326, followed; Puget Sound Stevedoring Co. v. State Tax Comm'n, 302 U.S. 90, 58 S.Ct. 72, 82 L.Ed. 68, and Joseph v. Carter & Weekes Stevedoring Co., 330 U.S. 422, 67 S.Ct. 815, 91 L.Ed. 993, overruled. Pp. 743-751.
(a) A State under appropriate conditions may tax directly the privilege of conducting interstate business. Complete Auto Transit, Inc. v. Brady, supra. P. 745.
(b) When a general business tax levies only on the value of services performed within the State, the tax is properly apportioned and multiple burdens on interstate commerce cannot occur. Pp. 746-747.
(c) All state tax burdens do not imperm ssibly impede interstate commerce, and the Commerce Clause balance tips against the state tax only when it unfairly burdens commerce by exacting from the interstate activity more than its just share of the cost of state government. Pp. 747-748.
(d) State taxes are valid under the Commerce Clause, where they are applied to activity having a substantial nexus with the State, are fairly apportioned, do not discriminate against interstate commerce, and are fairly related to the services provided by the State; and here the Washington tax in question meets this standard, since the stevedoring operations are entirely conducted within the State, the tax is levied solely on the value of the loading and unloading occurring in the State, the tax rate is applied to stevedoring as well as generally to businesses rendering services, and there is nothing in the record to show that the tax is not fairly related to services and protection provided by the State. Pp. 750-751.
2. Nor is the Washington business and occupation tax, as applied to stevedoring so as to reach services provided wholly within the State to imports, exports, and other goods, among the "Imposts or Duties" prohibited by the Import-Export Clause. Michelin Tire Corp. v. Wages, 423 U.S. 276, 96 S.Ct. 535, 46 L.Ed.2d 495. Pp. 751-761.
(a) The application of the tax to stevedoring threatens none of the Import-Export Clause's policies of precluding state disruption of United States foreign policy, protecting federal revenues, and avoiding friction and trade barriers among the States. The tax as so applied does not restrain the Federal Government's ability to conduct foreign policy. Its effect on federal import revenue is merely to compensate the State for services and protection extended to the stevedoring business. The policy against interstate friction and rivalry is vindicated, as is the Commerce Clause's similar policy, if the tax falls upon a taxpayer with reasonable nexus to the State, is properly apportioned, does not discriminate, and relates reasonably to services provided by the State. Pp. 751-755.
(b) While, as distinguished from Michelin Tire Corp. v. Wages, supra, where the goods taxed were no longer in transit, the activity taxed here occurs while imports and exports are in transit, nevertheless the tax does not fall on the goods themselves but reaches only the business of loading and unloading ships, i. e., the business of transporting cargo, within the State, and hence the tax is not a prohibited "Impost or Duty" when it violates none of the policies of the Import-Export Clause. Pp. 755-757.
(c) While here the stevedores load and unload imports and exports, whereas in Michelin Tire Corp. v. Wages, supra, the state tax in question touched only imports, nevertheless the Michelin approach of analyzing the nature of the tax to determine whether it is a prohibited "Impost or Duty" should apply to taxation involving exports as well as imports. Any tax relating to exports can be tested for its conformity to the Import-Export Clause's policies of precluding state disruption of United States foreign policy and avoiding friction and trade barriers among the States, although the tax does not serve the Clause's policy of protecting federal revenues in view of the fact that the Constitution forbids federal taxation of exports. Pp. 757-758.
(d) The Import-Export Clause does not effect an absolute ban on all state taxation of imports and exports, but only on "Imposts or Duties." Pp. 759-760.
(e) To say that the Washington tax violates the Import-Export Clause because it taxes the imports themselves while they remain a part of commerce, would be to resurrect the now rejected "original package" analysis whereby goods enjoyed immunity from state taxation as long as they retained their status as imports by remaining in their import packages. P. 760. (f) The Washington tax is not invalid under the Import-Export Clause as constituting the i position of a transit fee upon inland customers, since, as is the case in Commerce Clause jurisprudence, interstate friction will not chafe when commerce pays for the state services it enjoys. Fair taxation will be assured by the prohibition on discrimination and the requirements of apportionment, nexus, and reasonable relationship between tax and benefits. Pp. 760-761.
88 Wash.2d 315, 559 P.2d 997, reversed and remanded.
Slade Gorton, Atty. Gen., Olympia, Wash., for petitioner.
Mr. Justice BLACKMUN delivered the opinion of the Court.
1
For the second time in this century, the State of Washington would apply its business and occupation tax to stevedoring. The State's first application of the tax to stevedoring was unsuccessful, for it was held to be unconstitutional as violative of the Commerce Clause1 of the United States Constitution. Puget Sound Stevedoring Co. v. State Tax Comm'n, 302 U.S. 90, 58 S.Ct. 72, 82 L.Ed. 68 (1937). The Court now faces the question whether Washington's second attempt violates either the Commerce Clause or the Import-Export Clause.2
2
* Stevedoring is the business of loading and unloading cargo from ships.3 Private stevedoring companies constitute respondent Association of Washington Stevedoring Companies; respondent Washington Public Ports Association is a nonprofit corporation consisting of port authorities that engage in stevedoring activities. App. 3. In 1974 petitioner Department of Revenue of the State of Washington adopted Revised Rule 193, pt. D, Wash.Admin.Code 458-20-193-D, to implement the State's 1% business and occupation tax on services, set forth in Wash.Rev.Code §§ 82.04.220 and 82.04.290 (1976).4 The Rule applies the tax to stevedoring and reads in pertinent part as set forth in the margin.5
3
Revised Rule 193D restores the original scope of the Washington business and occupation tax. After initial imposition of the tax in 1935,6 the then State Tax Commission7 adopted Rule 198 of the Rules and Regulations Relating to the Revenue Act of 1935.8 That Rule permitted taxpayers to deduct certain income received from interstate and foreign commerce. Income from stevedoring, however, was not described as deductible. When, in 1937, this Court in Puget Sound invalidated the application of the tax to stevedoring, the Commission complied by adding stevedoring income to the list of deductions.9 The deduction for stevedoring remained in effect until the revision of Rule 193 in 1974.10
4
Seeking to retain their theretofore-enjoyed exemption from the tax, respondents in January 1975 sought from the Superior Court of Thurston County, Wash., a declaratory judgment to the effect that Revised Rule 193D violated both the Commerce Clause and the Import-Export Clause. They urged that the case was controlled by Puget Sound, which this Court had reaffirmed in Joseph v. Carter & Weekes Stevedoring Co., 330 U.S. 422, 433, 67 S.Ct. 815, 821, 91 L.Ed. 993 (1947) (together, the Stevedoring Cases ). Absent a clear invitation from this Court, respondents submitted that the Superior Court could not avoid the force of the Stevedoring Cases, which had never been overruled. Record 9.11 Petitioner replied that this Court had invited rejection of those cases by casting doubt on the Commerce Clause analysis that distinguished between direct and indirect taxation of interstate commerce. Id., at 25-37, citing, e. g., Interstate Pipe Line Co. v. Stone, 337 U.S. 662, 69 S.Ct. 1264, 93 L.Ed. 1613 (1949); Western Live Stock v. Bureau of Revenue, 303 U.S. 250, 58 S.Ct. 546, 82 L.Ed. 823 (1938). Petitioner also argued that the Rule did not violate the Commerce Clause because it taxed only intrastate activity, namely, the loading and unloading of ships, Record 17-20, and because it levied only a nondiscriminatory tax apportioned to the activity within the State. Id., at 20-22. The Rule did not impose any "Imposts or Duties on Imports or Exports" because it taxed merely the stevedoring services and not the goods themselves, id., at 22-25, citing Canton R. Co. v. Rogan, 340 U.S. 511, 71 S.Ct. 447, 95 L.Ed. 488 (1951). The Superior Court, however, not surprisingly, considered itself bound by the Stevedoring Cases. It therefore issued a declaratory judgment that Rule 193D was invalid to the extent it related to stevedoring in interstate or foreign commerce. App. 17-18.12
5
Petitioner appealed to the Washington Court of Appeals. Record 77. That court certified the case for direct appeal to the State's Supreme Court, citing Wash.Rev.Code § 2.06.030(c) (1976), and Wash. Supreme Court Rule on Appeal I-14(1)(c) (now Rule 4.2(a)(2), Wash. Rules of Court (1977)). After accepting certification, the Supreme Court, with two justices dissenting, affirmed the judgment of the Superior Court. 88 Wash.2d 315, 559 P.2d 997 (1977). The majority considered petitioner's argument that recent cases13 had eroded the holdings in the Stevedoring Cases. It concluded, nonetheless:
6
"[W]e must hold the tax invalid; we do so in recognition of our duty to abide by controlling United States Supreme Court decisions construing the federal constitution. Hence, we find it unnecessary to discuss the aforementioned cases beyond the fact that nowhere in them do we find language criticizing, expressly contradicting, or overruling (even impliedly) the stevedoring cases.
7
* * * * *
8
"Fully mindful of our prior criticism of the principles and reasoning of the stevedore cases (See Washington-Oregon Shippers Cooperative Ass'n v. Schumacher, 59 Wash.2d 159, 167, 367 P.2d 112, 115-116 (1961)), we must nevertheless hold the instant tax on stevedoring invalid." 88 Wash.2d, at 318-320, 559 P.2d, at 998-999.
9
The two dissenting justices would have upheld the tax against the Commerce Clause attack on the ground that recent cases had eroded the direct-indirect taxation analysis employed in the Stevedoring Cases. They found no violation of the Import-Export Clause because the State had taxed only the activity of stevedoring, not the imports or exports themselves. Even if stevedoring were considered part of interstate or foreign commerce, the Washington tax was valid because it did not discriminate against importing or exporting, did not impair transportation, did not impose multiple burdens, and did not regulate commerce. 88 Wash.2d, at 320-322, 559 P.2d, at 999-1000.
10
Because of the possible impact on the issues made by our intervening decision in Complete Auto Transit, Inc. v. Brady, 430 U.S. 274, 97 S.Ct. 1076, 51 L.Ed.2d 326 (1977), filed after the Washington Supreme Court's ruling, we granted certiorari. 434 U.S. 815, 98 S.Ct. 51, 54 L.Ed.2d 70 (1977).
II
The Commerce Clause
A.
11
In Puget Sound Stevedoring Co. v. State Tax Comm'n, the Court invalidated the Washington business and occupation tax on stevedoring only because it applied directly to interstate commerce. Stevedoring was interstate commerce, according to the Court, because:
12
"Transportation of a cargo by water is impossible or futile unless the thing to be transported is put aboard the ship and taken off at destination. A stevedore who in person or by servants does work so indispensable is as much an agency of commerce as shipowner or master." 302 U.S., at 92, 58 S.Ct., at 73.
13
Without further analysis, the Court concluded:
14
"The business of loading and unloading being interstate or foreign commerce, the state of Washington is not at liberty to tax the privilege of doing it by exacting in return therefor a percentage of the gross receipts. Decisions to that effect are many and controlling." Id., at 94, 58 S.Ct., at 74.
15
The petitioners (officers of New York City) in Joseph v. Carter & Weekes Stevedoring Co., urged the Court to overrule Puget Sound. They argued that intervening cases14 had permitted local taxation of gross proceeds derived from interstate commerce. They concluded, therefore, that the Commerce Clause did not preclude the application to stevedoring of the New York City business tax on the gross receipts of a stevedoring corporation. The Court disagreed on the theory that the intervening cases permitted taxation only of local activity separate and distinct from interstate commerce. 330 U.S., at 430-433, 67 S.Ct., at 819-821. This separation theory was necessary, said the Court, because it served to diminish the threat of multiple taxation on commerce; if the tax actually fell on intrastate activity, there was less likelihood that other taxing jurisdictions could duplicate the levy. Id., at 429, 67 S.Ct., at 819. Stevedoring, however, was not separated from interstate commerce because, as previously enunciated in Puget Sound, it was interstate commerce:
16
"Stevedoring, we conclude, is essentially a part of the commerce itself and therefore a tax upon its gross receipts or upon the privilege of conducting the business of stevedoring for interstate and foreign commerce, measured by those gross receipts, is invalid. We reaffirm the rule of Puget Sound Stevedoring Company. 'What makes the tax invalid is the fact that there is interference by a State with the freedom of interstate commerce.' Freeman v. Hewit [329 U.S. 249,] 256, 67 S.Ct. 274, 91 L.Ed. 265." 330 U.S., at 433, 67 S.Ct., at 821.
17
Because the tax in the present case is indistinguishable from the taxes at issue in Puget Sound and in Carter & Weekes, the Stevedoring Cases control today's decision on the Commerce Clause issue unless more recent precedent and a new analysis require rejection of their reasoning.
18
We conclude that Complete Auto Transit, Inc. v. Brady, where the Court held that a State under appropriate conditions may tax directly the privilege of conducting interstate business, requires such rejection. In Complete Auto, Mississippi levied a gross-receipts tax on the privilege of doing business within the State. It applied the tax to the appellant, a Michigan corporation transporting motor vehicles manufactured outside Mississippi. After the vehicles were shipped into Mississippi by railroad, the appellant moved them by truck to Mississippi dealers. This Court assumed that appellant's activity was in interstate commerce. 430 U.S., at 276 n. 4, 97 S.Ct., at 1077.
19
The Mississippi tax survived the Commerce Clause attack. Absolute immunity from state tax did not exist for interstate businesses because it " ' "was not the purpose of the commerce clause to relieve those engaged in interstate commerce from their just share of state tax burden even though it increases the cost of doing business." ' " Id., at 288, 97 S.Ct., at 1079, quoting Western Live Stock v. Bureau of Revenue, 303 U.S., at 254, 58 S.Ct., at 548, and Colonial Pipeline Co. v. Traigle, 421 U.S. 100, 108, 95 S.Ct. 1538, 1542, 44 L.Ed.2d 1 (1975). The Court therefore specifically overruled Spector Motor Service, Inc. v. O'Connor, 340 U.S. 602, 71 S.Ct. 508, 95 L.Ed. 573 (1951), where a direct gross-receipts tax on the privilege of engaging in interstate commerce had been invalidated. 430 U.S., at 288-289, 97 S.Ct., at 1083-1084.
20
The principles of Complete Auto also lead us now to question the underpinnings of the Stevedoring Cases. First, Puget Sound invalidated the Washington tax on stevedoring activity only because it burdened the privilege of engaging in interstate commerce. Because Complete Auto permits a State properly to tax the privilege of engaging in interstate commerce, the basis for the holding in Puget Sound is removed completely.15
21
Second, Carter & Weekes supported its reaffirmance of Puget Sound by arguing that a direct privilege tax would threaten multiple burdens on interstate commerce to a greater extent than would taxes on local activity connected to commerce. But Complete Auto recognized that errors of apportionment that may lead to multiple burdens may be corrected when they o cur. 430 U.S., at 288-289, n. 15, 97 S.Ct., at 1083-108416.
22
The argument of Carter & Weekes was an abstraction. No multiple burdens were demonstrated. When a general business tax levies only on the value of services performed within the State, the tax is properly apportioned and multiple burdens logically cannot occur.17 The reasoning of Carter & Weekes, therefore, no longer supports automatic tax immunity for stevedoring from a levy such as the Washington business and occupation tax.
23
Third, Carter & Weekes reaffirmed Puget Sound on a basis rejected by Complete Auto and previous cases. Carter & Weekes considered any direct tax on interstate commerce to be unconstitutional because it burdened or interfered with commerce. 330 U.S., at 433, 67 S.Ct., at 821. In support of that conclusion, the Court there cited only Southern Pacific Co. v. Arizona ex rel. Sullivan, 325 U.S. 761, 767, 65 S.Ct. 1515, 1519, 89 L.Ed. 1915 (1945), the case where Arizona's limitations on the length of trains were invalidated. InSouthern Pacific, however, the Court had not struck down the legislation merely because it burdened interstate commerce. Instead, it weighed the burden against the State's interests in limiting the size of trains:
24
"The decisive question is whether in the circumstances the total effect of the law as a safety measure in reducing accidents and casualties is so slight or problematical as not to outweigh the national interest in keeping interstate commerce free . . . ." Id., at 775-776, 65 S.Ct. at 1523.
25
Only after concluding that railroad safety was not advanced by the regulations, did the Court invalidate them. They contravened the Commerce Clause because the burden on interstate commerce outweighed the State's interests.
26
Although the balancing of safety interests naturally differs from the balancing of state financial needs, Complete Auto recognized that a State has a significant interest in exacting from interstate commerce its fair share of the cost of state government. 430 U.S., at 288, 97 S.Ct., at 1083. Accord, Colonial Pipeline Co. v. Traigle, 421 U.S., at 108, 95 S.Ct., at 1542; Western Live Stock v. Bureau of Revenue, 303 U.S., at 254, 58 S.Ct., at 548. All tax burdens do not impermissibly impede interstate commerce. The Commerce Clause balance tips against the tax only when it unfairly burdens commerce by exacting more than a just share from the interstate activity. Again, then, the analysis of Carter & Weekes must be rejected.
B
27
Respondents' additional arguments do not demonstrate the wisdom of, or need for, preserving the Stevedoring Cases. First, respondents attempt to distinguish so-called movement cases, in which tax immunity has been broad, from nonmovement cases, in which the immunity traditionally has been narrower. Brief for Respondents 23-28. Movement cases involve taxation on transport, such as the Texas tax on a natural gas pipeline in Michigan-Wisconsin Pipe Line Co. v. Calvert, 347 U.S. 157, 74 S.Ct. 396, 98 L.Ed. 583 (1954). Nonmovement cases involve taxation on commerce that does not move goods, such as the New Mexico tax on publishing newspapers and magazines in Western Live Stock v. Bureau of Revenue. This distinction, however, disregards Complete Auto, a movement case which held that a state privilege tax on the business of moving goods in interstate commerce is not per se unconstitutional.
28
Second, respondents would distinguish Complete Auto on the ground that it concerned only intrastate commerce, that is, the movement of vehicles from a Mississippi railhead to Mississippi dealers. Brief for Respondents 26-28. This purported distinction ignores two facts. In Complete Auto, we expressly assumed that the activity was interstate, a segment of the movement of vehicles from the out-of-state manufacturer to the in-state dealers. 430 U.S., at 276 n. 4, 97 S.Ct., at 1077. Moreover, the stevedoring activity of respondents occurs completely within the State of Washington, even though the activity is a part of interstate or foreign commerce. The situation was the same in Complete Auto, and that case, thus, is not distinguishable from the present one.
29
Third, respondents suggest that what they regard as such an important change in Commerce Clause jurisprudence should come from Congress and not from this Court. To begin with, our rejection of the Stevedoring Cases does not effect a significant present change in the law. The primary alteration occurred in Complete Auto. Even if this case did effect an important change, it would not offend the separation-of-powers principle because it does not restrict the ability of Congress to regulate commerce. The Commerce Clause does not state a prohibition; it merely grants specific power to Congress. The prohibitive effect of the Clause on state legislation results from the Supremacy Clause and the decisions of this Court. See, e. g., Cooley v. Board of Wardens, 12 How. 299, 13 L.Ed. 996 (1852); Gibbons v. Ogden, 9 Wheat. 1, 6 L.Ed. 23 (1824). If Congress prefers less disruption of interstate commerce, it will act.18
30
Consistent with Complete Auto, then, we hold that the Washington business and occupation tax does not violate the Commerce Clause by taxing the interstate commerce activity of stevedoring. To the extent that Puget Sound Stevedoring Co. v. State Tax Comm'n and Joseph v. Carter & Weekes Stevedoring Co. stand to the contrary, each is overruled.
C
31
With the distinction between direct and indirect taxation of interstate commerce thus discarded, the constitutionality under the Commerce Clause of the application of the Washington business and occupation tax to stevedoring depends upon the practical effect of the exaction. As was recognized in Western Live Stock v. Bureau of Revenue, 303 U.S. 250, 58 S.Ct. 546, 82 L.Ed. 823 (1938), interstate commerce must bear its fair share of the state tax burden. The Court repeatedly has sustained taxes that are applied to activity with a substantial nexus with the State, that are fairly apportioned, that do not discriminate against interstate commerce, and that are fairly related to the services provided by the State. E. g., General Motors Corp. v. Washington, 377 U.S. 436, 84 S.Ct. 1564, 12 L.Ed.2d 430 (1964); Northwestern Cement Co. v. Minnesota, 358 U.S. 450, 79 S.Ct. 357, 3 L.Ed.2d 421 (1959); Memphis Gas Co. v. Stone, 335 U.S. 80, 68 S.Ct. 1475, 92 L.Ed. 1832 (1948); Wisconsin v. J. C. Penney Co., 311 U.S. 435, 61 S.Ct. 246, 85 L.Ed. 267 (1940); see Complete Auto Transit, Inc. v. Brady, 430 U.S., at 279, and n. 8, 97 S.Ct., at 1079.
32
Respondents proved no facts in the Superior Court that, under the above test, would justify invalidation of the Washington tax. The record contains nothing that minimizes the obvious nexus between Washington and respondents; indeed, respondents conduct their entire stevedoring operations within the State. Nor have respondents successfully attacked the apportionment of the Washington system. The tax under challenge was levied solely on the value of the loading and unloading that occurred in Washington. Although the rate of taxation varies with the type of business activity, respondents have not demonstrated how the 1% rate, which applies to them and generally to businesses rendering services, discriminates against interstate commerce. Finally, nothing in the record suggests that the tax is not fairly related to services and protection provided by the State. In short, because respondents relied below on the per se approach of Puget Sound and Carter & Weekes, they developed no factual basis on which to declare the Washington tax unconstitutional as applied to their members and their stevedoring activities.
III
The Import-Export Clause
33
Having decided that the Commerce Clause does not per se invalidate the application of the Washington tax to stevedoring, we must face the question whether the tax contravenes the Import-Export Clause. Although the parties dispute the meaning of the prohibition of "Imposts or Duties on Imports or Exports," they agree that it differs from the ban the Commerce Clause erects against burdens and taxation on interstate commerce. Brief for Petitioner 32-33; Brief for Respondents 9-10; Tr. of Oral Arg. 13, 22. The Court has noted before that the Import-Export Clause states an absolute ban, whereas the Commerce Clause merely grants power to Congress. Richfield Oil Corp. v. State Board, 329 U.S. 69, 75, 67 S.Ct. 156, 159, 91 L.Ed. 80 (1946). On the other hand, the Commerce Clause touches all state taxation and regulation of interstate and foreign commerce, whereas the Import-Export Clause bans only "Imposts or Duties on Imports or Exports." Michelin Tire Corp. v. Wages, 423 U.S. 276, 279, 290-294, 96 S.Ct. 535, 537, 543-544, 46 L.Ed.2d 495 (1976). The resolution of the Commerce Clause issue, therefore, does not dispose of the Import-Export Clause question.
A.
34
In Michelin the Court upheld the application of a general ad valorem property tax to imported tires and tubes. The Court surveyed the history and purposes of the Import-Export Clause to determine, for the first time, hich taxes fell within the absolute ban on "Imposts or Duties." Id., at 283-286, 96 S.Ct., at 539-541. Previous cases had assumed that all taxes on imports and exports and on the importing and exporting processes were banned by the Clause. See, e. g., Department of Revenue v. James B. Beam Distilling Co., 377 U.S. 341, 343, 84 S.Ct. 1247, 1248, 12 L.Ed.2d 362 (1964); Richfield Oil Corp. v. State Board, 329 U.S., at 76, 67 S.Ct., at 160; Joseph v. Carter & Weekes Stevedoring Co., 330 U.S., at 445, 67 S.Ct., at 827 (Douglas, J., dissenting in part); Anglo-Chilean Corp. v. Alabama, 288 U.S. 218, 226-227, 53 S.Ct. 373, 375, 77 L.Ed. 710 (1933); License Cases, 5 How. 504, 575-576, 12 L.Ed. 256 (1847) (opinion of Taney, C. J.). Before Michelin, the primary consideration was whether the tax under review reached imports or exports. With respect to imports, the analysis applied the original-package doctrine of Brown v. Maryland, 12 Wheat. 419, 6 L.Ed. 678 (1827); see, e. g. Department of Revenue v. James B. Beam Distilling Co.; Anglo-Chilean Corp. v. Alabama; Low v. Austin, 13 Wall. 29, 20 L.Ed. 517 (1872), overruled in Michelin Tire Corp. v. Wages. So long as the goods retained their status as imports by remaining in their import packages, they enjoyed immunity from state taxation. With respect to exports, the dispositive question was whether the goods had entered the "export stream," the final, continuous journey out of the country. Kosydar v. National Cash Register Co., 417 U.S. 62, 70-71, 94 S.Ct. 2108, 2113, 40 L.Ed.2d 660 (1974); Empresa Siderurgica v. County of Merced, 337 U.S. 154, 157, 69 S.Ct. 995, 997, 93 L.Ed. 1276 (1949); A. G. Spalding & Bros. v. Edwards, 262 U.S. 66, 69, 43 S.Ct. 485, 486, 67 L.Ed. 865 (1923); Coe v. Errol, 116 U.S. 517, 526, 527, 6 S.Ct. 475, 477, 478, 29 L.Ed. 715 (1886). As soon as the journey began, tax immunity attached.
35
Michelin initiated a different approach to Import-Export Clause cases. It ignored the simple question whether the tires and tubes were imports. Instead, it analyzed the nature of the tax to determine whether it was an "Impost or Duty." 423 U.S., at 279, 290-294, 96 S.Ct., at 537, 543-544. Specifically, the analysis examined whether the exaction offended any of the three policy considerations leading to the presence of the Clause:
36
"The Framers of the Constitution thus sought to alleviate three main concerns . . .: the Federal Government must speak with one voice when regulating commercial relations with foreign governments, and tariffs, which might affect foreign relations, could not be implemented by the States consistently with that exclusive power; import revenues were to be the major source of revenue of the Federal Government and should not be diverted to the States; and harmony among the States might be disturbed unless seaboard States, with their crucial ports of entry, were prohibited from levying taxes on citizens of other States by taxing goods merely flowing through their ports to the other States not situated as favorably geographically." Id., at 285-286, 96 S.Ct., at 540. (footnotes omitted).
37
The ad valorem property tax there at issue offended none of these policies. It did not usurp the Federal Government's authority to regulate foreign relations since it did not "fall on imports as such because of their place of origin." Id., at 286, 96 S.Ct., at 541. As a general tax applicable to all property in the State, it could not have been used to create special protective tariffs and could not have been applied selectively to encourage or discourage importation in a manner inconsistent with federal policy. Further, the tax deprived the Federal Government of no revenues to which it was entitled. The exaction merely paid for services, such as fire and police protection, supplied by the local government. Although the tax would increase the cost of the imports to consumers, its effect on the demand for Michelin tubes and tires was insubstantial. The tax, therefore, would not significantly diminish the number of imports on which the Federal Government could levy import duties and would not deprive it of income indirectly. Finally, the tax would not disturb harmony among the States because the coastal jurisdictions would receive compensation only for services and protection extended to the imports. Although intending to prevent coastal States from abusing their geographical positions, the Framers also did not expect residents of the ports to subsidize commerce headed inland. The Court therefore concluded that the Georgia ad valorem property tax was not an "Impost or Duty," within the meaning of the Import-Export Clause, because it offended none of the policies behind that Clause.
38
A similar approach demonstrates that the application of the Washington business and occupation tax to stevedoring threatens no Import-Export Clause policy. First, the tax does not restrain the ability of the Federal Government to conduct foreign policy. As a general business tax that applies to virtually all businesses in the State, it has not created any special protective tariff. The assessments in this case are only upon business conducted entirely within Washington. No foreign business or vessel is taxed. Respondents, therefore, have demonstrated no impediment posed by the tax upon the regulation of foreign trade by the United States.
39
Second, the effect of the Washington tax on federal import revenues is identical to the effect in Michelin. The tax merely compensates the State for services and protection extended by Washington to the stevedoring business. Any indirect effect on the demand for imported goods because of the tax on the value of loading and unloading them from their ships is even less substantial than the effect of the direct ad valorem property tax on the imported goods themselves.
40
Third, the desire to prevent interstate rivalry and friction does not vary significantly from the primary purpose of the Commerce Clause. See P. Hartman, State Taxation of Interstate Commerce 2-3 (1953).19 The third Import-Export Clause policy, therefore, is vindicated if the tax falls upon a taxpayer with reasonable nexus to the State, is properly apportioned, does not discriminate, and relates reasonably to services provided by the State. As has been explained in Part II-C, supra, the record in this case, as presently developed, reveals the presence of all these factors.
41
Under the analysis of Michelin, then, the application of the Washington business and occupation tax to stevedoring violates no Import-Export Clause policy and therefore should not qualify as an "Impost or Duty" subject to the absolute ban of the Clause.
B
42
The Court in Michelin qualified its holding with the observation that Georgia had applied the property tax to goods "no longer in transit." 423 U.S., at 302, 96 S.Ct., at 548.20 Because the goods were no longer in transit, however, the Court did not have to face the question whether a tax relating to goods in transit would be an "Impost or Duty" even if it offended none of the policies behind the Clause. Inasmuch as we now face this inquiry, we note two distinctions between this case and Michelin. First, the activity taxed here occurs while imports and exports are in transit. Second, however, the tax does not fall on the goods themselves. The levy reaches only the business of loading and unloading ships or, in othe words, the business of transporting cargo within the State of Washington. Despite the existence of the first distinction, the presence of the second leads to the conclusion that the Washington tax is not a prohibited "Impost or Duty" when it violates none of the policies.
43
In Canton R. Co. v. Rogan, 340 U.S. 511, 71 S.Ct. 447, 95 L.Ed. 488 (1951), the Court upheld a gross-receipts tax on a steam railroad operating exclusively within the Port of Baltimore. The railroad operated a marine terminal and owned rail lines connecting the docks to the trunk lines of major railroads. It switched and pulled cars, stored imports and exports pending transport, supplied wharfage, weighed imports and exports, and rented a stevedoring crane. Somewhat less than half of the company's 1946 gross receipts were derived from the transport of imports or exports. The company contended that this income was immune, under the Import-Export Clause, from the state tax. The Court rejected that argument primarily on the ground that immunity of services incidental to importing and exporting was not so broad as the immunity of the goods themselves:21
44
"The difference is that in the present case the tax is not on the goods, but on the handling of them at the port. An article may be an export and immune from a tax long before or long after it reaches the port. But when the tax is on activities connected with the export or import the range of immunity cannot be so wide.
45
". . . The broader definition which appellant tenders distorts the ordinary meaning of the terms. It would lead back to every forest, mine, and factory in the land and create a zone of tax immunity never before imagined." Id., at 514-515, 71 S.Ct., at 449. (emphasis in original).
46
In Canton R. Co. the Court did not have to reach the question about taxation of stevedoring because the company did not load or unload ships.22 As implied in the opinion, however, id., at 515, 71 S.Ct., at 449, the only distinction between stevedoring and the railroad services was that the loading and unloading of ships crossed the waterline. This is a distinction without economic significance in the present context. The transportation services in both settings are necessary t the import-export process. Taxation in neither setting relates to the value of the goods, and therefore in neither can it be considered taxation upon the goods themselves. The force of Canton R. Co. therefore prompts the conclusion that the Michelin policy analysis should not be discarded merely because the goods are in transit, at least where the taxation falls upon a service distinct from the goods and their value.23
C
47
Another factual distinction between this case and Michelin is that here the stevedores load and unload imports and exports whereas in Michelin the Georgia tax touched only imports. As noted in Part III-A, supra, the analysis in the export cases has differed from that in the import cases. In the former, the question was when did the export enter the export stream; in the latter, the question was when did the goods escape their original package. The questions differed, for example, because an export could enter its export package and not secure tax immunity until later when it began its journey out of the country. Until Michelin, an import retained its immunity so long as it remained in its original package.
48
Despite these formal differences, the Michelin approach should apply to taxation involving exports as well as imports. The prohibition on the taxation of exports is contained in the same Clause as that regarding imports. The export-tax ban vindicates two of the three policies identified in Michelin. It precludes state disruption of the United States foreign policy.24 It does not serve to protect federal revenues, however, because the Constitution forbids federal taxation of exports. U.S.Const., Art. I, § 9, cl. 5;25 see United States v. Hvoslef, 237 U.S. 1, 35 S.Ct. 459, 59 L.Ed. 813 (1915). But it does avoid friction and trade barriers among the States. As a result, any tax relating to exports can be tested for its conformance with the first and third policies. If the constitutional interests are not disturbed, the tax should not be considered an "Impost or Duty" any more than should a tax related to imports. This approach is consistent with Canton R. Co., which permitted taxation of income from services connected to both imports and exports. The respondents' gross receipts from loading exports, therefore, are as subject to the Washington business and occupation tax as are the receipts from unloading imports.
D
49
None of respondents' additional arguments convinces us that the Michelin approach should not be applied in this case to sustain the tax.
50
First, respondents contend that the Import-Export Clause effects an absolute prohibition on all taxation of imports and exports. The ban must be absolute, they argue, in order to give the Clause meaning apart from the Commerce Clause. They support this contention primarily with dicta from Richfield Oil, 329 U.S., at 75-78, 67 S.Ct., at 159-161, and with the partial dissent in Carter & Weekes i, 330 U.S., at 444-445, 67 S.Ct., at 827. Neither, however, provides persuasive support because neither recognized that the term "Impost or Duty" is not self-defining and does not necessarily encompass all taxes. The partial dissent in Carter & Weekes did not address the term at all. Richfield Oil's discussion was limited to the question whether the tax fell upon the sale or upon the right to retail. 329 U.S., at 83-84, 67 S.Ct., at 163-164. The State apparently conceded that the Clause precluded all taxes on exports and the process of exporting. Id., at 84, 67 S.Ct., at 164. The use of these two cases, therefore, ignores the central holding of Michelin that the absolute ban is only of "Imposts or Duties" and not of all taxes. Further, an absolute ban of all taxes is not necessary to distinguish the Import-Export Clause from the Commerce Clause. Under the Michelin approach, any tax offending either of the first two Import-Export policies becomes suspect regardless of whether it creates interstate friction. Commerce Clause analysis, on the other hand, responds to neither of the first two policies. Finally, to conclude that "Imposts or Duties" encompasses all taxes makes superfluous several of the terms of Art. I, § 8, cl. 1 of the Constitution, which grants Congress the "Power To lay and collect Taxes, Duties, Imposts and Excises." In particular, the Framers apparently did not include "Excises," such as an exaction on the privilege of doing business, within the scope of "Imposts" or "Duties." See Michelin, 423 U.S., at 291-292, n. 12, 96 S.Ct., at 543, citing 2 M. Farrand, The Records of the Federal Convention of 1787, p. 305 (1911), and 3 id., at 203-204.26
51
Second, respondents would distinguish Michelin on the ground that Georgia levied a property tax on the mass of goods in the State, whereas Washington would tax the imports themselves while they remain a part of commerce. This distinction is supported only by citation to the License Cases, 5 How., at 576, 12 L.Ed. 256 (opinion of Taney, C. J.). The argument must be rejected, however, because it resurrects the original-package analysis. See id., at 574-575. Rather than examining whether the taxes are "Imposts or Duties" that offend constitutional policies, the contention would have the Court explore when goods lose their status as imports and exports. This is precisely the inquiry the Court abandoned in Michelin, 423 U.S., at 279, 96 S.Ct., at 537. Nothing in the License Cases, in which a fractioned Court produced nine opinions, prompts a return to the exclusive consideration of what constitutes an import or export.
52
Third, respondents submit that the Washington tax imposes a transit fee upon inland consumers. Regardless of the validity of such a toll under the Commerce Clause, respondents conclude that it violates the Import-Export Clause. The problem with that analysis is that it does not explain how the policy of preserving harmonious commerce among the States and of preventing interstate tariffs, rivalries, and friction, differs as between the two Clauses. After years of development of Commerce Clause jurisprudence, the Court has concluded that interstate friction will not chafe when commerce pays for the governmental services it enjoys. See Part II, supra. Requiring coastal States to subsidize the commerce of inland consumers may well exacerbate, rather than diminish, rivalries and hostility. Fair taxation will be assured by the prohibition on discrimination and the requirements of apportionment, nexus, and reasonable relati nship between tax and benefits. To the extent that the Import-Export Clause was intended to preserve interstate harmony, the four safeguards will vindicate the policy. To the extent that other policies are protected by the Import-Export Clause, the analysis of an Art. I, § 10, challenge must extend beyond that required by a Commerce Clause dispute. But distinctions not based on differences in constitutional policy are not required. Because respondents identify no such variation in policy, their transit-fee argument must be rejected.
E
53
The Washington business and occupation tax, as applied to stevedoring, reaches services provided wholly within the State of Washington to imports, exports, and other goods. The application violates none of the constitutional policies identified in Michelin. It is, therefore, not among the "Imposts or Duties" within the prohibition of the Import-Export Clause.
IV
54
The judgment of the Supreme Court of Washington is reversed, and the case is remanded for further proceedings not inconsistent with this opinion.27
55
It is so ordered.
56
Mr. Justice BRENNAN took no part in the consideration or decision of this case.
57
Mr. Justice POWELL, concurring in part and concurring in the result.
58
I join the opinion of the Court with the exception of Part III-B. As that section of the Court's opinion appears to resurrect the discarded "direct-indirect" test, I cannot join it.
59
In Michelin Tire Corp. v. Wages, 423 U.S. 276, 96 S.Ct. 535, 46 L.Ed.2d 495 (1976), this Court abandoned the traditional, formalistic methods of determining the validity of state levies under the Import-Export Clause and applied a functional analysis based on the exaction's relationship to the three policies that underlie the Clause: (i) preservation of uniform federal regulation of foreign relations; (ii) protection of federal revenue derived from imports; and (iii) maintenance of harmony among the inland States and the seaboard States. The nondiscriminatory ad valorem property tax in Michelin was held not to violate any of those policies, but the Court suggested that even a nondiscriminatory tax on goods merely in transit through the State might run afoul of the Import-Export Clause.
60
The question the Court addresses today in Part III-B is whether the business tax at issue here is such a tax upon goods in transit. The Court gives a negative answer, apparently for two reasons. The first is that Canton R. Co. v. Rogan, 340 U.S. 511, 71 S.Ct. 447, 95 L.Ed. 488 (1951), indicates that this is a tax "not on the goods, but on the handling of them at the port." Id., at 514, 71 S.Ct., at 449. (emphasis in original). While Canton R. Co. provides precedential support for the proposition that a tax of this kind is not invalid under the Import-Export Clause, its rather artificial distinction between taxes on the handling of the goods and taxes on the goods themselves harks back to the arid "direct-indirect" distinction that we rejected in Complete Auto Transit, Inc. v. Brady, 430 U.S. 274, 97 S.Ct. 1076, 51 L.Ed.2d 326 (1977), in favor of analysis framed in light of economic reality.
61
The Court's second reason for holding that the instant tax is not one on goods in transit has the surface appearance of economic-reality analysis, but turns out to be the "direct-indirect" test in another guise. The Court likens this tax to the one at issue in Canton R. Co. and declares that since "[t]axation in neither setting relates to the value of the goods, . . . in neither can it be considered taxation upon the goods themselves." Ante, at 757. That this distinction has no economic significance is apparent from the fact that it is possible to design transit fees that are imposed "directly" upon the goods, even though the amount f the exaction bears no relation to the value of the goods. For example, a State could levy a transit fee of $5 per ton or $10 per cubic yard. These taxes would bear no more relation to the value of the goods than does the tax at issue here, which is based on the volume of the stevedoring companies' business, and, in turn, on the volume of goods passing through the port. Thus, the Court does not explain satisfactorily its pronouncement that Washington's business tax upon stevedoring—in economic terms—is not the type of transit fee that the Michelin Court questioned.
62
In my view, this issue can be resolved only with reference to the analysis adopted in Michelin. The Court's initial mention of the validity of transit fees in that decision is found in a discussion concerning the right of the taxing state to seek a quid pro quo for benefits conferred by the State:
63
"There is no reason why local taxpayers should subsidize the services used by the importer; ultimate consumers should pay for such services as police and fire protection accorded the goods just as much as they should pay transportation costs associated with those goods. An evil to be prevented by the Import-Export Clause was the levying of taxes which could only be imposed because of the peculiar geographical situation of certain States that enabled them to single out goods destined for other States. In effect, the Clause was fashioned to prevent the imposition of exactions which were no more than transit fees on the privilege of moving through a State. [The tax at issue] obviously stands on a different footing, and to the extent there is any conflict whatsoever with this purpose of the Clause, it may be secured merely by prohibiting the assessment of even nondiscriminatory property taxes on goods which are merely in transit through the State when the tax is assessed." 423 U.S., at 289-290, 96 S.Ct., at 542. (Footnotes omitted.)
64
In questioning the validity of "transit fees," the Michelin Court was concerned with exactions that bore no relation to services and benefits conferred by the State. Thus, the transit-fee inquiry cannot be answered by determining whether or not the tax relates to the value of the goods; instead, it must be answered by inquiring whether the State is simply making the imported goods pay their own way, as opposed to exacting a fee merely for "the privilege of moving through a State." Ibid.
65
The Court already has answered that question in this case. In Part II-C, the Court observes that "nothing in the record suggests that the tax is not fairly related to services and protection provided by the State." Ante, at 750-751. Since the stevedoring companies undoubtedly avail themselves of police and fire protection, as well as other benefits Washington offers its local businesses, this statement cannot be questioned. For that reason, I agree with the Court's conclusion that the business tax at issue here is not a "transit fee" within the prohibition of the Import-Export Clause.
1
"The Congress shall have Power . . .
* * * * *
"To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes . . . ." U.S.Const., Art. I, § 8, cl. 3.
2
"No State shall, without the Consent of the Congress, lay any Imposts or Duties on Imports or Exports, except what may be absolutely necessary for executing its inspection Laws: and the net Produce of all Duties and Imposts, laid by any State on Imports or Exports, shall be for the Use of the Treasury of the United States; and all such Laws shall be subject to the Revision and Control of the Congress." U.S.Const., Art. I, § 10, cl. 2.
3
The record does not contain a precise definition or description of the business of stevedoring or of the activities of respondents and their respective members. By admitting the factual allegations in the respondents' Petition for Declaratory Judgment on Validity of Rule, App. 3-7, petitioner Department of Revenue accepted paragraph VI of that petition. That paragraph alleged that the private companies that constitute respondent Association of Washington Stevedoring Companies "are engaged in the same stevedoring activities that were held not taxable in Puget Sound Stevedoring Co." This Court explained the activities of the appellant stevedoring company in Puget Sound as follows:
"What was done by this appellant in the business of loading and unloading was not prolonged beyond the stage of transportation and its reasonable incidents. . . . True, the service did not begin or end at the ship's side, where the cargo is placed upon a sling attached to the ship's tackle. It took in the work of carriage to and from the 'first place of rest,' which means that it covered the space between the hold of the vessel and a convenient point of discharge upon the dock. . . . The fact is stipulated, however, that no matter by whom the work is done or paid for, 'stevedoring services are essential to waterborne commerce and always commence in the hold of the vessel and end at the "first place of rest," and vice versa.' " 302 U.S., at 93, 58 S.Ct., at 73.
4
Section 82.04.220 reads:
"There is levied a d shall be collected from every person a tax for the act or privilege of engaging in business activities. Such tax shall be measured by the application of rates against value of products, gross proceeds of sales or gross income of the business, as the case may be."
Section 82.04.290 reads in pertinent part:
"Upon every person engaging within this state in any business activity other than or in addition to those enumerated in . . . ; as to such persons the amount of tax on account of such activities shall be equal to the gross income of the business multiplied by the rate of one percent. This section includes, among others, and without limiting the scope hereof . . . , persons engaged in the business of rendering any type of service which does not constitute a 'sale at retail' or a 'sale at wholesale.' "
We note, also, that § 82.04.460 reads in part:
"Any person rendering services taxable under RCW 82.04.290 and maintaining places of business both within and without this state which contribute to the rendition of such services shall, for the purpose of computing tax liability under RCW 82.04.290, apportion to this state that portion of his gross income which is derived from services rendered within this state."
A temporary additional tax of 6% of the base tax is now imposed for the period from June 1, 1976, through June 30, 1979. 1977 Wash.Laws, 1st Ex.Sess., ch. 324, § 1, and 1975-1976 Wash.Laws, 2d Ex.Sess., ch. 130, § 3, codified as Wash.Rev.Code § 82.04.2901 (Supp.1977).
5
"In computing tax there may be deducted from gross income the amount thereof derived as compensation for performance of services which in themselves constitute interstate or foreign commerce to the extent that a tax measured thereby constitutes an impermissible burden upon such commerce. A tax does not constitute an impermissible burden upon interstate or foreign commerce unless the tax discriminates against that commerce by placing a burden thereon that is not borne by intrastate commerce, or unless the tax subjects the activity to the risk of repeated exactions of the same nature from other states. Transporting across the state's boundaries is exempt, whereas supplying such transporters with facilities, arranging accommodations, providing funds and the like, by which they engage in such commerce is taxable.
"EXAMPLES OF EXEMPT INCOME:
"1. Income from those activities which consist of the actual transportation of persons or property across the state's boundaries is exempt.
* * * * *
"EXAMPLES OF TAXABLE INCOME:
* * * * *
"3. Compensation received by contracting, stevedoring or loading companies for services performed within this state is taxable."
6
1935 Wash.Laws, ch. 180.
7
The Tax Commission was abolished in 1967, and, with specified exceptions, its powers, duties, and functions were transferred to the Director of the Department of Revenue. 1967 Wash.Laws, Ex.Sess., ch. 26, § 7.
8
Rule 198, as it was in effect in 1936 and 1937, that is, prior to the decision in Puget Sound, read in part:
"In computing the tax under the classification of 'Service and Other Business Activities' there may be deducted from gross income of the business the amount thereof derived as compensation for the performance of services hich in themselves constitute foreign or interstate commerce to an extent that a tax measured by the compensation received therefrom constitutes a direct burden upon such commerce. Included in the above are those activities which involve the actual transportation of goods or commodities in foreign commerce or commerce between the states; the transmission of communications from a point within the state to a point outside the state and vice versa; the solicitation of freight for foreign or interstate shipment; and the selling of tickets for foreign and interstate passage accommodations." Rules and Regulations Relating to the Revenue Act of 1935, Rule 198, p. 122 (1936); id., at 133 (1937).
9
Effective May 1, 1939, Rule 198 read in part:
"In computing the tax under the classification of 'Service and Other Business Activities' there may be deducted from gross income of the business the amount thereof derived as compensation for the performance of services which in themselves constitute foreign or interstate commerce to an extent that a tax measured by the compensation received therefrom constitutes a direct burden upon such commerce. Included in the above [is] . . . the compensation received by a contracting stevedoring company for loading and unloading cargo from vessels where such cargo is moving in interstate or foreign commerce and where the work is actually directed and controlled by the stevedoring company . . . ." Id., at 137 (1939).
10
Rules and Regulations Relating to the Revenue Act of 1935, Rule 193, p. 94 (1943), and id., Rule 193, p. 123 (1970).
11
In a reply brief, respondents supported the continuing validity of the Stevedoring Cases. In particular, they argued:
"Final, and we think conclusive, proof of the continued vitality of the stevedoring cases lies in the language of Spector Motor Service, Inc. v. O'Connor, 340 U.S. 602 [71 S.Ct. 508, 95 L.Ed. 573] . . . (1951), decided after all four of the 'major' cases relied on by the State. We have previously noted that Spector struck down a tax on the a tivity of moving goods in interstate commerce." Record 69 (emphasis in original).
Spector was overruled last Term in Complete Auto Transit, Inc. v. Brady, 430 U.S. 274, 288-289, 97 S.Ct. 1076, 1083-1084, 51 L.Ed.2d 326 (1977), decided after respondents advanced the above argument.
12
In its oral decision the Superior Court noted its doubt about the continued validity of the Stevedoring Cases :
"It would seem to the Court . . . that there certainly is a swing away from the Puget Sound and Carter and Weekes cases . . . ." App. 8. "It sticks in this Court's mind, however, that there has to be a reason, of which is beyond the ability of this Court to comprehend, that everyone has shied from the stevedoring cases, and many minds obviously more brilliant than mine have not been able to overturn those cases directly in thirty-eight years . . . ." Id., at 11. "Under those circumstances the Court does hold that the Puget Sound and Carter and Weekes cases are the law of the land, as exemplified by those decisions; that they have not been reversed by implication, nor has there been an invitation to anyone to reverse those cases." Id., at 8, 11, 13-14.
13
The court stated, 88 Wash.2d, at 318, 559 P.2d, at 998, that petitioner had cited Michelin Tire Corp. v. Wages, 423 U.S. 276, 96 S.Ct. 535, 46 L.Ed.2d 495 (1976); Colonial Pipeline Co. v. Traigle, 421 U.S. 100, 95 S.Ct. 1538, 44 L.Ed.2d 1 (1975); Canton R. Co. v. Rogan, 340 U.S. 511, 71 S.Ct. 447, 95 L.Ed. 488 (1951); Interstate Pipe Line Co. v. Stone, 337 U.S. 662, 69 S.Ct. 1264, 93 L.Ed. 1613 (1949); and Central Greyhound Lines, Inc. v. Mealey, 334 U.S. 653, 68 S.Ct. 1260, 92 L.Ed. 1633 (1948).
14
They cited, among others, four particular cases. The first was Department of Treasury v. Wood Preserving Corp., 313 U.S. 62, 61 S.Ct. 885, 85 L.Ed. 1188 (1941). In that case the Court sustained an Indiana tax on the gross receipts of a foreign corporation from purchase and resale of timber in Indiana. The transaction was considered local even though the timber was to be transported, after the resale, to Ohio for creosote treatment by the foreign corporation. The second case was McGoldrick v. Berwind-White Co., 309 U.S. 33, 60 S.Ct. 388, 84 L.Ed. 565 (1940). There a Pennsylvania corporation sold coal to New York City consumers through a city sales office. Even though
the coal was shipped from Pennsylvania, the Court permitted the city to tax the sale because the tax was conditioned on local activity, that is, the delivery of goods within New York upon their purchase in New York for consumption in New York. The third case was Southern Pacific Co. v. Gallagher, 306 U.S. 167, 59 S.Ct. 389, 83 L.Ed. 586 (1939). There California was permitted to impose a tax on storage and use with respect to the retention and ownership of goods brought into the State by an interstate railroad for its own use. The fourth was Western Live Stock v. Bureau of Revenue, 303 U.S. 250, 58 S.Ct. 546, 82 L.Ed. 823 (1938). There the Court upheld a New Mexico privilege tax upon the gross receipts from the sale of advertising. It concluded that the business was local even though a magazine with interstate circulation and advertising was published.
15
That the holding in Spector parallels that in Puget Sound is demonstrated by the authorities relied upon or provided by both cases in the past. Spector relied on Carter & Weekes, which reaffirmed Puget Sound, and upon Freeman v. Hewit, 329 U.S. 249, 67 S.Ct. 274, 91 L.Ed. 265 (1946). 340 U.S., at 609, 71 S.Ct., at 512. Freeman, in turn, relied upon Puget Sound, 329 U.S., at 257, 67 S.Ct., at 279, and Carter & Weekes relied upon Freeman, 330 U.S., at 433, 67 S.Ct., at 821. Both Freeman and Puget Sound relied upon Galveston H. &. S. A. R. Co. v. Texas, 210 U.S. 217, 28 S.Ct. 638, 52 L.Ed. 1031 (1908). 329 U.S., at 257, 67 S.Ct., at 279; 302 U.S., at 94, 58 S.Ct., at 74.
Respondents, also, have observed the parallel between Spector and the Stevedoring Cases. In their reply brief to the Superior Court, they argued that Spector, which had not then been overruled by Complete Auto, was dispositive on the question of the continued vitality of Puget Sound and Carter & Weekes. See n. 11, supra.
16
Subsequent to Carter & Weekes, the Court explained more precisely its concern about multiple burdens on interstate commerce:
"While the economic wisdom of state net income taxes is one of state policy not for our decision, one of the 'realities' raised by the parties is the possibility of a multiple burden resulting from the exactions in question. The answer is that none is shown to exist here. . . . Logically it is impossible, when the tax is fairly apportioned, to have the same income taxed twice. . . . We cannot deal in abstractions. In this type of case the taxpayers must show that the formula places a burden upon interstate commerce in a constitutional sense. This they have failed to do." Northwestern Cement Co. v. Minnesota, 358 U.S. 450, 462-463, 79 S.Ct. 357, 364, 3 L.Ed.2d 421 (1959).
17
Carter & Weekes has received criticism from commentators for its reliance on the possibility of the imposition of multiple tax burdens. Professor Hartman argued that the burden on interstate commerce imposed by a privilege tax "is multiple only because the elements of transportation itself are multiple." P. Hartman, State Taxation of Interstate Commerce 204 (1953). Because the loading or unloading of a ship is confined to one State, no other State could tax that particular phase of commerce. "Thus, the Court's basis for the unconstitutionality of the Weekes tax assumed the existence of a premise which did not exist, except in the mind of a majority of the Justices." Id., at 205. See Hellerstein, State Taxation Under the Commerce Clause: An Historical Perspective, 29 Vand.L.Rev. 335 (1976).
18
Respondents seem to be particularly concerned about the continued validity of Michigan-Wisconsin Pipe Line Co. v. Calvert, 347 U.S. 157, 74 S.Ct. 396, 98 L.Ed. 583 (1954). There, Texas levied a tax on the production of natural gas measured by the entire volume of gas to be shipped in interstate commerce. A refinery extracted the gas from crude oil and transported it 300 yards to the pipeline. The State identified, as a local incident, the transfer of gas from the refinery to the pipeline. This Court declared the tax unconstitutional because it amounted to an unapportioned levy on the transportation of the entire volume of gas. The exaction did not relate to the length of the Texas portion of the pipeline or to the percentage of the taxpayer's business taking place in Texas. Today's decision does not question the Michigan-Wisconsin judgment, because Washington apportions its business and occupation tax to activity within the State. Taxes that are not so apportioned remain vulnerable to Commerce Clause attack.
19
"Two of the chief weaknesses of the Articles of Confederation were the lack of power in Congress to regulate foreign and interstate commerce, and the presence of power in the States to do so. The almost catastrophic results from this sort of situation were harmful commercial wars and reprisals at home among the States . . . ." P. Hartman, State Taxation of Interstate Commerce 2 (1953), citing, e. g., The Federalist Nos. 7, 11, 22 (Hamilton), No. 42 (Madison).
20
Commentators have noted the qualification but have questioned its significance. See W. Hellerstein, Michelin Tire Corp. v. Wages: Enhanced State Power to Tax Imports, 1976 S.Ct.Rev. 99, 122-126; Comment, 30 Rutgers L.Rev. 193, 203 (1976); Note, 12 Wake Forest L.Rev. 1055, 1062 (1976).
21
The Court distinguished the Maryland tax from others struck down by the Court. 340 U.S., at 513-514, 71 S.Ct., at 448, distinguishing Richfield Oil Corp. v. State Board, 329 U.S. 69, 67 S.Ct. 156, 91 L.Ed. 80 (1946); Thames & Mersey Ins. Co. v. United States, 237 U.S. 19, 35 S.Ct. 496, 59 L.Ed. 821 (1915); and Fairbank v. United States, 181 U.S. 283, 21 S.Ct. 648, 45 L.Ed. 862 (1901). In these cases the State had taxed either the goods or activity so connected with the goods that the levy amounted to a tax on the goods themselves. In Richfield, the tax fell upon the sale of goods and was overturned because the Court had always considered a tax on the sale of goods to be a tax on the goods themselves. See Brown v. Maryland, 12 Wheat. 419, 439, 6 L.Ed. 678 (1827). The sale had no value or significance apart from the goods. Similarly, the stamp tax on bills of lading in Fairbank effectively taxed the goods because the bills represented the goods. The basis for distinguishing Thames & Mersey is less clear because there the tax fell upon marine insurance policies. Arguably, the policies had a value apart from the value of the goods. In distinguishing that case from the taxation of stevedoring activities, however, one might note that the value of goods bears a much closer relation to the value of insurance policies on them than to the value of loading and unloading ships.
22
The Court expressly noted that it did not need to reach the stevedoring issue. 340 U.S., at 515, 71 S.Ct., at 449. It was also reserved in the companion case of Western Maryland R. Co. v. Rogan, 340 U.S. 520, 522, 71 S.Ct. 450, 451, 95 L.Ed. 501 (1951).
23
We do not reach the question of the applicability of the Michelin approach when a State directly taxes imports or exports in transit.
Our Brother POWELL, as his concurring opinion indicates, obviously would prefer to reach the issue today, even though the facts of the present case, as he agrees, do not present a case of a tax on goods in transit. As in Michelin, decided less than three years ago, we prefer to defer decision until a case with pertinent facts is presented. At that time, with full argument, the issue with all its ramifications may be decided.
24
See Abramson, State Taxation of Exports: The Stream of Constitutionality, 54 N.C.L.Rev. 59 (1975).
25
"No Tax or Duty shall be laid on Articles exported from any State."
26
But see 1 W. Crosskey, Politics and the Constitution in the History of the United States 296-297 (1953), cited in 423 U.S., at 290-291, 96 S.Ct., at 543, in which the author argues that the concept of "Duties" encompassed excises. He does not explain, however, why Art. I, § 8, cl. 1, enumerated "Taxes, Duties, Imposts and Excises" if the Framers intended duties to include excises.
27
See generally Hellerstein, State Taxation and the Supreme Court: Toward a More Unified Approach to Constitutional Adjudication?, 75 Mich.L.Rev. 1426 (1977).
| 78
|
435 U.S. 765
98 S.Ct. 1407
55 L.Ed.2d 707
FIRST NATIONAL BANK OF BOSTON et al., Appellants,v.Francis X. BELLOTTI, etc.
No. 76-1172.
Argued Nov. 9, 1977.
Decided April 26, 1978.
Rehearing Denied June 26, 1978.
See 438 U.S. 907, 98 S.Ct. 3126.
Syllabus
Appellants, national banking associations and business corporations, wanted to spend money to publicize their views opposing a referendum proposal to amend the Massachusetts Constitution to authorize the legislature to enact a graduated personal income tax. They brought this action challenging the constitutionality of a Massachusetts criminal statute that prohibited them and other specified business corporations from aking contributions or expenditures "for the purpose of . . . influencing or affecting the vote on any question submitted to the voters, other than one materially affecting any of the property, business or assets of the corporation." The statute specified that "[n]o question submitted to the voters solely concerning the taxation of the income, property or transactions of individuals shall be deemed materially to affect the property, business or assets of the corporation." On April 26, 1976, the case was submitted to a single Justice of the Supreme Judicial Court of Massachusetts on an expedited basis and upon agreed facts. Judgment was reserved and the case was referred to the full court. On September 22, 1976, the court directed entry of a judgment for appellee and issued its opinion upholding the constitutionality of the statute after the referendum, at which the proposal was rejected. Held :
1. The case is not rendered moot by the fact that the 1976 referendum has been held and the proposal for a constitutional amendment defeated. The 18-month interval between legislative authorization of placement of the proposal on the ballot and its submission to the voters was too short for appellants to obtain complete judicial review, and likely would be too short in any future challenge to the statute; and in view of the number of times that such a proposal has been submitted to the electorate, there is reasonable expectation that appellants again will be subjected to the threat of prosecution under the statute. Weinstein v. Bradford, 423 U.S. 147, 149, 96 S.Ct. 347, 348, 46 L.Ed.2d 350. Pp. 774-775.
2. The portion of the Massachusetts statute at issue violates the First Amendment as made applicable to the States by the Fourteenth. Pp. 775-795. (a) The expression proposed by appellants, namely, the expression of views on an issue of public importance, is at the heart of the First Amendment's concern. There is no support in the First or Fourteenth Amendment, or in this Court's decisions, for the proposition that such speech loses the protection otherwise afforded it by the First Amendment simply because its source is a corporation that cannot prove, to a court's satisfaction, a material effect on its business. Although appellee suggests that this Court's decisions generally have extended First Amendment rights only to corporations in the business of communications or which foster the self-expression of individuals, those decisions were not based on the rationale that the challenged communication materially affected the company's business. They were based, at least in part, on the Amendment's protection of public discussion and the dissemination of information and ideas. Similarly, commercial speech is accorded some constitutional protection not so much because it pertains to the seller's business as because it furthers the societal interest in the "free flow of commercial information." Virginia State Bd. of Pharmacy v. Virginia Citizens Consumer Council, 425 U.S. 748, 764, 96 S.Ct. 1817, 1827, 48 L.Ed.2d 346. Pp. 776-783.
(b) The asserted justifications for the challenged statute cannot survive the exacting scrutiny required when the legislative prohibition is directed at speech itself and speech on a public issue. This statute cannot be justified by the State's asserted interest in sustaining the active role of the individual citizen in the electoral process and preventing diminution of his confidence in government. Even if it were permissible to silence one segment of society upon a sufficient showing of imminent danger, there has been no showing that the relative voice of corporations has been overwhelming or even significant in influencing referenda in Massachusetts, or that there has been any threat to the confidence of the citizenry in government. And the risk of corruption perceived in this Court's decisions involving candidate elections is not present in a popular vote on a public issue. Nor can the statute be justified on the asserted ground that it protects the rights of shareholders whose views differ from those expressed by management on behalf of the corporation. The statute is both underinclusive and overinclusive in serving this purpose, and therefore could not be sustained even if the purpose itself were deemed compelling. Pp. 788-795.
371 Mass. 773, 359 N.E.2d 1262, reversed.
Francis H. Fox, Boston, Mass., for appellants.
Thomas R. Kiley, Boston, Mass., for appellees.
Mr. Justice POWELL delivered the opinion of the Court.
1
In sustaining a state criminal statute that forbids certain expenditures by banks and business corporations for the purpose of influencing the vote on referendum proposals, the Massachusetts Supreme Judicial Court held that the First Amendment rights of a corporation are limited to issues that materially affect is business, property, or assets. The court rejected appellants' claim that the statute abridges freedom of speech in violation of the First and Fourteenth Amendments. The issue presented in this context is one of first impression in this Court. We postponed the question of jurisdiction to our consideration of the merits. 430 U.S. 964, 97 S.Ct. 1642, 52 L.Ed.2d 354 (1977). We now reverse.
2
* The statute at issue, Mass. Gen. Laws Ann., ch. 55, § 8 (West Supp. 1977), prohibits appellants, two national banking associations and three business corporations,1 from making contributions or expenditures "for the purpose of . . . influencing or affecting the vote on any question submitted to the voters, other than one materially affecting any of the property, business or assets of the corporation." The statute further specifies that "[n]o question submitted to the voters solely concerning the taxation of the income, property or transactions of individuals shall be deemed materially to affect the property, business or assets of the corporation." A corporation that violates § 8 may receive a maximum fine of $50,000; a corporate officer, director, or agent who violates the section may receive a maximum fine of $10,000 or imprisonment for up to one year, or both.2
3
Appellants wanted to spend money to publicize their views on a proposed constitutional amendment that was to be submitted to the voters as a ballot question at a general election on November 2, 1976. The amendment would have permitted the legislature to impose a graduated tax on the income of individuals. After appellee, the Attorney General of Massachusetts, informed appellants that he intended to enforce § 8 against them, they brought this action seeking to have the statute declared unconstitutional. On April 26, 1976, the case was submitted to a single justice of the Supreme Judicial Court on an expedited basis and upon agreed facts, in order to settle the question before the upcoming election.3 Judgment was reserved and the case referred to the full court that same day.
4
Appellants argued that § 8 violates the First Amendment, the Due Process and Equal Protection Clauses of the Fourteenth Amendment, and similar provisions of the Massachusetts Constitution. They prayed that the statute be declared unconstitutional on its face and as it would be applied to their proposed expenditures. The parties' statement of agreed facts reflected their disagreement as to the effect that the adoption of a personal income tax would have on appellants' business; it noted that "[t]here is a division of opinion among economists as to whether and to what extent a graduated income tax imposed solely on individuals would affect the business and assets of corporations." App. 17. Appellee did not dispute that appellants' management believed that the tax ould have a significant effect on their businesses.4
5
On September 22, 1976, the full bench directed the single justice to enter judgment upholding the constitutionality of § 8. An opinion followed on February 1, 1977. In addressing appellants' constitutional contentions,5 the court acknowledged that § 8 "operate[s] in an area of the most fundamental First Amendment activities," Buckley v. Valeo, 424 U.S. 1, 14, 96 S.Ct. 612, 632, 46 L.Ed.2d 659 (1976), and viewed the principal question as "whether business corporations, such as [appellants], have First Amendment rights coextensive with those of natural persons or associations of natural persons." 371 Mass. 773, 783, 359 N.E.2d 1262, 1269. The court found its answer in the contours of a corporation's constitutional right, as a "person" under the Fourteenth Amendment, not to be deprived of property without due process of law. Distinguishing the First Amendment rights of a natural person from the more limited rights of a corporation, the court concluded that "whether its rights are designated 'liberty' rights or 'property' rights, a corporation's property and business interests are entitled to Fourteenth Amendment protection. . . . [A]s an incident of such protection, corporations [also] possess certain rights of speech and expression under the First Amendment." Id., at 784, 359 N.E.2d, at 1270 (citations and footnote omitted). Accordingly, the court held that "only when a general political issue materially affects a corporation's business property or assets may that corporation claim First Amendment protection for its speech or other activities entitling it to communicate its position on that issue to the general public." Since this limitation is "identical to the legislative command in the first sentence of [§ 8]," the court concluded that the legislature "has clearly identified in the challenged statute the parameters of corporate free speech." Id., at 785, 359 N.E.2d, at 1270.
6
The court also declined to say that there was "no rational basis for [the] legislative determination," embodied in the second sentence of § 8, that a ballot question concerning the taxation of individuals could not materially affect the interests of a corporation. Id., at 786, 359 N.E.2d, at 1271. In rejecting appellants' argument that this second sentence established a conclusive presumption in violation of the Due Process Clause, the court construed § 8 to embody two distinct crimes: The first prohibits a corporation from spending money to influence the vote on a ballot question not materially affecting its business interests; the secon , and more specific, prohibition makes it criminal per se for a corporation to spend money to influence the vote on a ballot question solely concerning individual taxation. While acknowledging that the second crime is "related to the general crime" stated in the first sentence of § 8, the court intimated that the second sentence was intended to make criminal an expenditure of the type proposed by appellants without regard to specific proof of the materiality of the question to the corporation's business interests.6 Id., at 795 n. 19, 790-791, 359 N.E.2d, at 1276 n. 19, 1273-1274. The court nevertheless seems to have reintroduced the "materially affecting" concept into its interpretation of the second sentence of § 8, as a limitation on the scope of the so-called "second crime" imposed by the Federal Constitution rather than the Massachusetts Legislature. Id., at 786, 359 N.E.2d, at 1271. But because the court thought appellants had not made a sufficient showing of material effect, their challenge to the statutory prohibition as applied to them also failed.
7
Appellants' other arguments fared no better. Adopting a narrowing construction of the statute,7 the Supreme Judicial Court rejected the contention that § 8 is overbroad. It also found no merit in appellants' vagueness argument because the specific prohibition against corporate expenditures on a referendum solely concerning individual taxation is "both precise and definite." Id., at 791, 359 N.E.2d, at 1273-1274. Finally, the court held that appellants were not denied the equal protection of the laws.8
II
8
Because he 1976 referendum has been held, and the proposed constitutional amendment defeated, we face at the outset a question of mootness. As the case falls within the class of controversies "capable of repetition, yet evading review," Southern Pacific Terminal Co. v. ICC, 219 U.S. 498, 515, 31 S.Ct. 279, 283, 55 L.Ed. 310 (1911), we conclude that it is not moot. Present here are both elements identified in Weinstein v. Bradford, 423 U.S. 147, 149, 96 S.Ct. 347, 349, 46 L.Ed.2d 350 (1975), as precluding a finding of mootness in the absence of a class action: "(1) the challenged action was in its duration too short to be fully litigated prior to its cessation or expiration, and (2) there [is] a reasonable expectation that the same complaining party [will] be subjected to the same action again."
9
Under no reasonably foreseeable circumstances could appellants obtain plenary review by this Court of the issue here presented in advance of a referendum on a similar constitutional amendment. In each of the legislature's four attempts to obtain constitutional authorization to enact a graduated income tax, including this most recent one, the period of time between legislative authorization of the proposal and its submission to the voters was approximately 18 months. This proved too short a period of time for appellants to obtain complete judicial review, and there is every reason to believe that any future suit would take at least as long. Furthermore, a decision allowing the desired expenditures would be an empty gesture unless it afforded appellants sufficient opportunity prior to the election date to communicate their views effectively.
10
Nor can there by any serious doubt that there is a "reasonable expectation," Weinstein v. Bradford, supra, that appellants again will be subject to the threat of prosecution under § 8. The 1976 election marked the fourth time in recent years that a proposed graduated income tax amendment has been submitted to the Massachusetts voters. Appellee's suggestion that the legislature may abandon its quest for a constitutional amendment is purely speculative.9 Appellants insist that they will continue to oppose the constitutional amendment, and there is no reason to believe that the Attorney General will refrain from prosecuting violations of § 8.10 Compare Nebraska Press Assn. v. Stuart, 427 U.S. 539, 546-547, 96 S.Ct. 2791, 2796-2797, 49 L.Ed.2d 683 (1976), with Spomer v. Littleton, 414 U.S. 514, 521, 94 S.Ct. 685, 689, 38 L.Ed.2d 694 (1974).
11
Meanwhile, § 8 remains on the books as a complete prohibition of corporate expenditures related to individual tax referenda, and as a restraining influence on corporate expenditures concerning other ballot questions. The criminal penalties of § 8 discourage challenge by violation, and the effect of the statute on arguably protected speech will persist. Storer v. Brown, 415 U.S. 724, 737 n. 8, 94 S.Ct. 1274, 1282, 39 L.Ed.2d 714 (1974); see American Party of Texas v. White, 415 U.S. 767, 770 n. 1, 94 S.Ct. 1296, 1301, 39 L.Ed.2d 744 (1974); Rosario v. Rockefeller, 410 U.S. 752, 756 n. 5, 93 S.Ct. 1245, 1249, 36 L.Ed.2d 1 (1973); Dunn v. Blumstein, 405 U.S. 330, 333 n. 2, 92 S.Ct. 995, 998, 31 L.Ed.2d 274 (1972). Accordingly, we conclude that this case is not moot and proceed to address the merits.
III
12
The court below framed the rincipal question in this case as whether and to what extent corporations have First Amendment rights. We believe that the court posed the wrong question. The Constitution often protects interests broader than those of the party seeking their vindication. The First Amendment, in particular, serves significant societal interests. The proper question therefore is not whether corporations "have" First Amendment rights and, if so, whether they are coextensive with those of natural persons. Instead, the question must be whether § 8 abridges expression that the First Amendment was meant to protect. We hold that it does.
A.
13
The speech proposed by appellants is at the heart of the First Amendment's protection.
14
"The freedom of speech and of the press guaranteed by the Constitution embraces at the least the liberty to discuss publicly and truthfully all matters of public concern without previous restraint or fear of subsequent punishment. . . . Freedom of discussion, if it would fulfill its historic function in this nation, must embrace all issues about which information is needed or appropriate to enable the members of society to cope with the exigencies of their period." Thornhill v. Alabama, 310 U.S. 88, 101-102, 60 S.Ct. 736, 744, 84 L.Ed. 1093 (1940).
15
The referendum issue that appellants wish to address falls squarely within this description. In appellants' view, the enactment of a graduated personal income tax, as proposed to be authorized by constitutional amendment, would have a seriously adverse effect on the economy of the State. See n. 4, supra. The importance of the referendum issue to the people and government of Massachusetts is not disputed. Its merits, however, are the subject of sharp disagreement.
16
As the Court said in Mills v. Alabama, 384 U.S. 214, 218, 86 S.Ct. 1434, 1437, 16 L.Ed.2d 484 (1966), "there is practically universal agreement that a major purpose of [the First] Amendment was to protect the free discussion of governmental affairs." If the speakers here were not corporations, no one would suggest that the State could silence their proposed speech. It is the type of speech indispensable to decisionmaking in a democracy,11 and this is no less true because the speech comes from a corporation rather than an individual.12 The inherent worth of the speech in terms of its capacity for informing the public does not depend upon the identity of its source, whether corporation, association, union, or individual.
17
The court below nevertheless held that corporate speech is protected by the First Amendment only when it pertains directly to the corporation's business interests. In deciding whether this novel and restrictive gloss on the First Amendme t comports with the Constitution and the precedents of this Court, we need not survey the outer boundaries of the Amendment's protection of corporate speech, or address the abstract question whether corporations have the full measure of rights that individuals enjoy under the First Amendment.13 The question in this case, simply put, is whether the corporate identity of the speaker deprives this proposed speech of what otherwise would be its clear entitlement to protection. We turn now to that question.
B
18
The court below found confirmation of the legislature's definition of the scope of a corporation's First Amendment rights in the language of the Fourteenth Amendment. Noting that the First Amendment is applicable to the States through the Fourteenth, and seizing upon the observation that corporations "cannot claim for themselves the liberty which the Fourteenth Amendment guarantees." Pierce v. Society of Sisters, 268 U.S. 510, 535, 45 S.Ct. 571, 573, 69 L.Ed. 1070 (1925), the court concluded that a corporation's First Amendment rights must derive from its property rights under the Fourteenth.14
19
This is an artificial mode of analysis, untenable under decisions of this Court.
20
"In a series of decisions beginning with Gitlow v. New York, 268 U.S. 652, 45 S.Ct. 625, 69 L.Ed. 1138 (1925), this Court held that the liberty of speech and of the press which the First Amendment guarantees against abridgment by the federal government is within the liberty safeguarded by the Due Process Clause of the Fourteenth Amendment from invasion by state action. That principle has been followed and reaffirmed to the present day." Joseph Burstyn, Inc. v. Wilson, 343 U.S. 495, 500-501, 72 S.Ct. 777, 780, 96 L.Ed. 1098 (1952) (footnote omitted) (emphasis supplied).
21
Freedom of speech and the other freedoms encompassed by the First Amendment always have been viewed as fundamental components of the liberty safeguarded by the Due Process Clause, see Gitlow v. New York, 268 U.S. 652, 666, 45 S.Ct. 625, 629, 69 L.Ed. 1138 (1925); id., at 672, 45 S.Ct., at 632 (Holmes, J., dissenting); NAACP v. Alabama ex rel. Patterson, 357 U.S. 449, 460, 78 S.Ct. 1163, 1170, 2 L.Ed.2d 1488 (1958); Stromberg v. California, 283 U.S. 359, 368, 51 S.Ct. 532, 535, 75 L.Ed. 1117 (1931); De Jonge v. Oregon, 299 U.S. 353, 364, 57 S.Ct. 255, 259, 81 L.Ed. 278 (1937); Warren, The New "Liberty" Under the Fourteenth Amendment, 39 Harv.L.Rev. 431 (1926), and the Court has not identified a separate source for the right when it has been asserted by corporations.15 See, e. g., Times Film Corp. v. City of Chicago, 365 U.S. 43, 47, 81 S.Ct. 391, 393, 5 L.Ed.2d 403 (1961); Kingsley Int'l Pictures Corp. v. Regents, 360 U.S. 684, 688, 79 S.Ct. 1362, 1365, 3 L.Ed.2d 1512 (1959); Joseph Burstyn, supra. In Grosjean v. American Press Co., 297 U.S. 233, 244, 56 S.Ct. 444, 446, 80 L.Ed. 660 (1936), the Court rejected the very reasoning adopted by the Supreme Judicial Court and did not rely on the corporation's property rights under the Fourteenth Amendment in sustaining its freedom of speech.16
22
Yet appellee suggests that First Amendment rights generally have been afforded only to corporations engaged in the communications business or through which individuals express themselves, and the court below apparently accepted the "materially affecting" theory as the conceptual common denominator between appellee's position and the precedents of this Court. It is true that the "materially affecting" requirement would have been satisfied in the Court's decisions affording protection to the speech of media corporations and corporations otherwise in the business of communication or entertainment, and to the commercial speech of business corporations. See cases cited in n. 14, supra. In such cases, the speech would be connected to the corporation's business almost by definition. But the effect on the business of the corporation was not the governing rationale in any of these decisions. None of them mentions, let alone attributes significance to, the fact that the subject of the challenged communication materially affected the corporation's business.
23
The press cases emphasize the special and constitutionally recognized role of that institution in informing and educating the public, offering criticism, and providing a forum for discussion and debate.17 Mills v. Alabama, 384 U.S., at 219, 86 S.Ct., at 1437; see Saxbe v. Washington Post Co., 417 U.S. 843, 863-864, 94 S.Ct. 2811, 2821-2822, 41 L.Ed.2d 514 (1974) (Powell, J., dissenting). But the press does not have a monopoly on either the First Amendment or the ability to enlighten.18 Cf. Buckley v. Valeo, 424 U.S., at 51 n. 56, 96 S.Ct., at 650; Red Lion Broadcasting Co. v. FCC, 395 U.S. 367, 389-390, 89 S.Ct. 1794, 1806-1807, 23 L.Ed.2d 371 (1969); New York Times Co. v. Sullivan, 376 U.S. 254, 266, 84 S.Ct. 710, 718, 11 L.Ed.2d 686 (1964); Associated Press v. United States, 326 U.S. 1, 20, 65 S.Ct. 1416, 1424, 89 L.Ed. 2013 (1945). Similarly, the Court's decisions involving corporations in the business of communication or entertainment are based not only on the role of the First Amendment in fostering individual self-expression but also on its role in affording the public access to discussion, debate, and the dissemination of information and ideas.19 See Red Lion Broadcasting Co. v. FCC, supra; Stanley v. Georg a, 394 U.S. 557, 564, 89 S.Ct. 1243, 1247, 22 L.Ed.2d 542 (1969); Time, Inc. v. Hill, supra, 385 U.S. 374, 389, 87 S.Ct. 534, 542, 17 L.Ed.2d 456 (1967). Even decisions seemingly based exclusively on the individual's right to express himself acknowledge that the expression may contribute to society's edification. Winters v. New York, 333 U.S. 507, 510, 68 S.Ct. 665, 667, 92 L.Ed. 840 (1948).
24
Nor do our recent commercial speech cases lend support to appellee's business interest theory. They illustrate that the First Amendment goes beyond protection of the press and the self-expression of individuals to prohibit government from limiting the stock of information from which members of the public may draw. A commercial advertisement is constitutionally protected not so much because it pertains to the seller's business as because it furthers the societal interest in the "free flow of commercial information." Virginia State Bd. of Pharmacy v. Virginia Citizens Consumer Council, Inc., 425 U.S. 748, 764, 96 S.Ct. 1817, 1827, 48 L.Ed.2d 346 (1976); see Linmark Associates, Inc. v. Township of Willingboro, 431 U.S. 85, 95, 97 S.Ct. 1614, 1619, 52 L.Ed.2d 155 (1977).20
C
25
We thus find no support in the First or Fourteenth Amendment, or in the decisions of this Court, for the proposition that speech that otherwise would be within the protection of the First Amendment loses that protection simply because its source is a corporation that cannot prove, to the satisfaction of a court, a material effect on its business or property. The "materially affecting" requirement is not an identification of the boundaries of corporate speech etched by the Constitution itself. Rather, it amounts to an impermissible legislative prohibition of speech based on the identity of the interests that spokesmen may represent in public debate over controversial issues and a requirement that the speaker have a sufficiently great interest in the subject to justify communication.
26
Section 8 permits a corporation to communicate to the public its views on certain referendum subjects—those materially affecting its business—but not others. It also singles out one kind of ballot question—individual taxation—as a subject about which corporations may never make their ideas public. The legislature has drawn the line between permissible and impermissible speech according to whether there is a sufficient nexus, as defined by the legislature, between the issue presented to the voters and the business interests of the speaker.
27
In the realm of protected speech, the legislature is constitutionally disqualified from dictating the subjects about which persons may speak and the speakers who may address a public issue. Police Dept. of Chicago v. Mosley, 408 U.S. 92, 96, 92 S.Ct. 2286, 2290, 33 L.Ed.2d 212 (1972). If a legislature may direct business corporations to "stick to business," it also may limit other corporations—religious, charitable, or civic—to their respective "business" when addressing the public. Such power in government to channel the expression of views is unacceptable under the First Amendment.21 Especially where, as here, the legislature's suppression of speech suggests an attempt to give one side of a debatable public question an advantage in expressing its views to t e people,22 the First Amendment is plainly offended. Yet the State contends that its action is necessitated by governmental interests of the highest order. We next consider these asserted interests.
IV
28
The constitutionality of § 8's prohibition of the "exposition of ideas" by corporations turns on whether it can survive the exacting scrutiny necessitated by a state-imposed restriction of freedom of speech. Especially where, as here, a prohibition is directed at speech itself,23 and the speech is intimately related to the process of governing, "the State may prevail only upon showing a subordinating interest which is compelling," Bates v. City of Little Rock, 361 U.S. 516, 524, 80 S.Ct. 412, 417, 4 L.Ed.2d 480 (1960); see NAACP v. Button, 371 U.S. 415, 438-439, 83 S.Ct. 328, 340-341, 9 L.Ed.2d 405 (1963); NAACP v. Alabama ex rel. Patterson, 357 U.S., at 463, 78 S.Ct., at 1172; Thomas v. Collins, 323 U.S. 516, 530, 65 S.Ct. 315, 322, 89 L.Ed. 430 (1945), "and the burden is on the Government to show the existence of such an interest." Elrod v. Burns, 427 U.S. 347, 362, 96 S.Ct. 2673, 49 L.Ed.2d 547 (1976). Even then, the State must employ means "closely drawn to avoid unnecessary abridgment . . . ." Buckley v. Valeo, 424 U.S., at 25, 96 S.Ct., at 638; see NAACP v. Button, supra, 371 U.S. at 438, 83 S.Ct. at 340; Shelton v. Tucker, 364 U.S. 479, 488, 81 S.Ct. 247, 252, 5 L.Ed.2d 231 (1960).
29
The Supreme Judicial Court did not subject § 8 to "the critical scrutiny demanded under accepted First Amendment and equal protection principles," Buckley, supra, 424 U.S., at 11, 96 S.Ct., at 631, because of its view that the First Amendment does not apply to appellants' proposed speech.24 For this reason the court did not even discuss the State's interests in considering appellants' First Amendment argument. The court adverted to the conceivable interests served by § 8 only in rejecting appellants' equal protection claim.25 Appellee nevertheless advances two principal justifications for the prohibition of corporate speech. The first is the State's interest in sustaining the active role of the individual citizen in the electoral process and thereby preventing diminution of the citizen's confidence in government. The second is the interest in protecting the rights of shareholders whose views differ from those expressed by management on behalf of the corporation. However weighty these interests may be in the context of partisan candidate elections,26 they either are not implicated in this case or are not served at all, or in other than a random manner, by the prohibition in § 8.
30
* Preserving the integrity of the electoral process, preventing corruption, and "sustain[ing] the active, alert responsibility of the individual citizen in a democracy for the wise conduct of government"27 are interests of the highest importance. Buckley, supra; United States v. United Automobile Workers, 352 U.S. 567, 570, 77 S.Ct. 529, 530, 1 L.Ed.2d 563 (1957); United States v. CIO, 335 U.S. 106, 139, 68 S.Ct. 1349, 1365, 92 L.Ed. 1849 (1948) (Rutledge, J., concurring); Burroughs v. United States, 290 U.S. 534, 54 S.Ct. 287, 78 L.Ed. 484 (1934). Preservation of the individual citizen's confidence in government is equally important. Buckley, supra, 424 U.S., at 27, 96 S.Ct., at 638; U. S. CSC v. Letter Carriers, 413 U.S. 548, 565, 93 S.Ct. 2880, 2890, 37 L.Ed.2d 796 (1973).
31
Appellee advances a number of arguments in support of his view that these interests are endangered by corporate participation in discussion of a referendum issue. They hinge upon the assumption that such participation would exert an undue influence on the outcome of a referendum vote, and—in the end destroy the confidence of the people in the democratic process and the integrity of government. According to appellee, corporations are wealthy and powerful and their views may drown out other points of view. If appellee's arguments were supported by record or legislative findings that corporate advocacy threatened imminently to undermine democratic processes, thereby denigrating rather than serving First Amendment interests, these arguments would merit our consideration. Cf. Red Lion Broadcasting Co. v. FCC, 395 U.S. 367, 89 S.Ct. 1794, 23 L.Ed.2d 371 (1969). But there has been no showing that the relative voice of corporations has been overwhelming or even significant in influencing referenda in Massachusetts,28 or that there has been any threat to the confidence of the citizenry in government. Cf. Wood v. Georgia, 370 U.S. 375, 388, 82 S.Ct. 1364, 1371, 8 L.Ed.2d 569 (1962).
32
Nor are appellee's arguments inherently persuasive or supported by the precedents of this Court. Referenda are held on issues, not candidates for public office. The risk of corruption perceived in cases involving candidate elections, e. g., United States v. United Automobile Workers, supra; United States v. CIO, supra, simply is not present in a popular vote on a public issue.29 To be sure, corporate advertising may influence the outcome of the vote; this would be its purpose. But the fact that advocacy may persuade the electorate is hardly a reason to suppress it: The Constitution "protects expression which is eloquent no less than that which is unconvincing." Kingsley Int'l Pictures Corp. v. Regents, 360 U.S., at 689, 79 S.Ct., at 1365. We noted only recently that "the concept that government may restrict the speech of some elements of our society in order to enhance the relative voice of others is wholly foreign to the First Amendment . . . ." Buckley, 424 U.S., at 48-49, 96 S.Ct., at 649.30 Moreover, the people in our democracy are entrusted with the responsibility for judging and evaluating the relative merits of conflicting arguments.31 They may consider, in making their judgment, the source and credibility of the advocate.32 But if there be any danger that the people cannot evaluate the information and arguments advanced by appellants, it is a danger contemplated by the Framers of the First Amendment. Wood v. Georgia, supra. In sum, "[a] restriction so destructive of the right of public discussion [as § 8], without greater or more imminent danger to the public interest than existed in this case, is incompatible with the freedoms secured by the First Amendment."33
B
33
Finally, appellee argues that § 8 protects corporate shareholders, an interest that is both legitimate and traditionally within the province of state law. Cort v. Ash, 422 U.S. 66, 82-84, 95 S.Ct. 2080, 2089-2091, 45 L.Ed.2d 26 (1975). The statute is said to serve this interest by preventing the use of corporate resources in furtherance of views with which some shareholders may disagree. This purpose is belied, however, by the provisions of the statute, which are both underinclusive and overinclusive.
34
The underinclusiveness of the statute is self-evident. Corporate expenditures with respect to a referendum are prohibited, while corporate activity with respect to the passage or defeat of legislation is permitted, see n. 31, supra, even though corporations may engage in lobbying more often than they take positions on ballot questions submitted to the voters. Nor does § 8 prohibit a corporation from expressing its views, by the expenditure of corporate funds, on any public issue until it becomes the subject of a referendum, though the displeasure of disapproving shareholders is unlikely to be any less.
35
The fact that a particular kind of ballot question has been singled out for special treatment undermines the likelihood of a genuine state interest in protecting shareholders. It suggests instead that the legislature may have been concerned with silencing corporations on a particular subject. Indeed, appellee has conceded that "the legislative and judicial history of the statute indicates . . . that the second crime was 'tailor-made' to prohibit corporate campaign contributions to oppose a graduated income tax amendment." Brief for Appellee 6.
36
Nor is the fact that § 8 is limited to banks and business corporations without relevance. Excluded from its provisions and criminal sanctions are entities or organized groups in which numbers of persons may hold an interest or membership, and which often have resources comparable to those of large corporations. Minorities in such groups or entities may have interests with respect to institutional speech quite comparable to those of minority shareholders in a corporation. Thus the exclusion of Massachusetts business trusts, real estate investment trusts, labor unions, and other associations undermines the plausibility of the State's purported concern for the persons who happen to be shareholders in the banks and corporations covered by § 8.
37
The over inclusiveness of the statute is demonstrated by the fact that § 8 would prohibit a corporation from supporting or opposing a referendum proposal even if its shareholders unanimously authorized the contribution or expenditure. Ultimately shareholders may decide, through the procedures of corporate democracy, whether their corporation should engage in debate on public issues.34 Acting through their power to elect the board of directors or to insist upon protective provisions in the corporation's charter, shareholders normally are presumed competent to protect their own interests. In addition to intracorporate remedies, minority shareholders generally have access to the judicial remedy of a derivative suit to challenge corporate disbursements alleged to have been made for improper corporate purposes or merely to further the personal interests of management.
38
Assuming, arguendo, that protection of shareholders is a "compelling" interest under the circumstances of this case, we find "no substantially relevant correlation between the governmental interest asserted and the State's effort" to prohibit appellants from speaking. Shelton v. Tucker, 364 U.S., at 485, 81 S.Ct., at 250.
V
39
Because that portion of § 8 challenged by appellants prohibits protected speech in a manner unjustified by a compelling state interest, it must be invalidated. The judgment of the Supreme Judicial Court is Reversed.
40
Mr. Chief Justice BURGER, concurring.
41
I join the opinion and judgment of the Court but write separately to raise some questions likely to arise in this area in the future.
42
A disquieting aspect of Massachusetts' position is that it may carry the risk of impinging on the First Amendment rights of those who employ the corporate form—as most do—to carry on the business of mass communications, particularly the large media conglomerates. This is so because of the difficulty, and perhaps impossibility, of distinguishing, either as a matter of fact or constitutional law, media corporations from corporations such as the appellants in this case.
43
Making traditional use of the corporate form, some media enterprises have amassed vast wealth and power and conduct many activities, some directly related—and some not—to their publishing and broadcasting activities. § e Miami Herald Publishing Co. v. Tornillo, 418 U.S. 241, 248-254, 94 S.Ct. 2831, 2835-2838, 41 L.Ed.2d 730 (1974). Today, a corporation might own the dominant newspaper in one or more large metropolitan centers, television and radio stations in those same centers and others, a newspaper chain, news magazines with nationwide circulation, national or worldwide wire news services, and substantial interests in book publishing and distribution enterprises. Corporate ownership may extend, vertically, to pulp mills and pulp timberlands to insure an adequate, continuing supply of newsprint and to trucking and steamship lines for the purpose of transporting the newsprint to the presses. Such activities would be logical economic auxiliaries to a publishing conglomerate. Ownership also may extend beyond to business activities unrelated to the task of publishing newspapers and magazines or broadcasting radio and television programs. Obviously, such far-reaching ownership would not be possible without the state-provided corporate form and its "special rules relating to such matters as limited liability, perpetual life, and the accumulation, distribution, and taxation of assets . . .." Post, at 809 (WHITE, J., dissenting).
44
In terms of "unfair advantage in the political process" and "corporate domination of the electoral process," post, at 809-810, it could be argued that such media conglomerates as I describe pose a much more realistic threat to valid interests than do appellants and similar entities not regularly concerned with shaping popular opinion on public issues. See Miami Herald Publishing Co. v. Tornillo, supra; ante, at 791 n. 30. In Tornillo, for example, we noted the serious contentions advanced that a result of the growth of modern media empires "has been to place in a few hands the power to inform the American people and shape public opinion." 418 U.S., at 250, 94 S.Ct., at 2836.
45
In terms of Massachusetts' other concern, the interests of minority shareholders, I perceive no basis for saying that the managers and directors of the media conglomerates are more or less sensitive to the views and desires of minority shareholders than are corporate officers generally.1 Nor can it be said, even if relevant to First Amendment analysis—which it is not—that the former are more virtuous, wise, or restrained in the exercise of corporate power than are the latter. Cf. Columbia Broadcasting System v. Democratic National Committee, 412 U.S. 94, 124-125, 93 S.Ct. 2080, 2097-2098, 36 L.Ed.2d 772 (1973); 14 The Writings of Thomas Jefferson 46 (A. Libscomb ed. 1904) (letter to Dr. Walter Jones, Jan. 2, 1814). Thus, no factual distinction has been identified as yet that would justify government restraints on the right of appellants to express their views without, at the same time, opening the door to similar restraints on media conglomerates with their vastly greater influence.
46
Despite these factual similarities between media and nonmedia corporations, those who view the Press Clause as somehow conferring special and extraordinary privileges or status on the "institutional press"—which are not extended to those who wish to express ideas other than by publishing a newspaper might perceive no danger to institutional media corporations flowing from the position asserted by Massachusetts. Under this narrow reading of the Press Clause, government could perhaps impose on nonmedi corporations restrictions not permissible with respect to "media" enterprises. Cf. Bezanson, The New Free Press Guarantee, 63 Va.L.Rev. 731, 767-770 (1977).2 The Court has not yet squarely resolved whether the Press Clause confers upon the "institutional press" any freedom from government restraint not enjoyed by all others.3
47
I perceive two fundamental difficulties with a narrow reading of the Press Clause. First, although certainty on this point is not possible, the history of the Clause does not suggest that the authors contemplated a "special" or "institutional" privilege. See Lange, The Speech and Press Clauses, 23 UCLA L.Rev. 77, 88-99 (1975). The common 18th century understanding of freedom of the press is suggested by Andrew Bradford, a colonial American newspaperman. In defining the nature of the liberty, he did not limit it to a particular group:
48
"But, by the Freedom of the Press, I mean a Liberty, within the Bounds of Law, for any Man to communicate to the Public, his Sentiments on the Important Points of Religion and Government ; of proposing any Laws, which he apprehends may be for the Good of his Countrey, and of applying for the Repeal of such, as he Judges pernicious. . . .
49
"This is the Liberty of the Press, the great Palladium of all our other Liberties, which I hope the good People of this Province, will forever enjoy . . .." A. Bradford, Sentiments on the Liberty of the Press, in L. Levy, Freedom of the Press from Zenger to Jefferson 41-42 (1966) (emphasis deleted) (first published in Bradford's The American Weekly Mercury, a Philadelphia newspaper, Apr. 25, 1734).
50
Indeed most pre-First Amendment commentators "who employed the term 'freedom of speech' with great frequency, used it synonomously with freedom of the press." L. Levy, Legacy of Suppression: Freedom of Speech and Press in Early American History 174 (1960).
51
Those interpreting the Press Clause as extending protection only to, or creating a special role for, the "institutional press" must either (a) assert such an intention on the part of the Framers for which no supporting evidence is available, cf. Lange, supra, at 89-91; (b) argue that events after 1791 somehow operated to "constitutionalize" this interpretation, see Bezanson, supra n. 3, at 788; or (c) candidly acknowledging the absence of historical support, suggest that the intent of the Framers is not important today. See Nimmer, supra n. 3, at 640-641.
52
To conclude that the Framers did not intend to limit the freedom of the press to one select group is not necessarily to suggest that the Press Clause is redundant. The Speech Clause standing alone may be viewed as a protection of the liberty to express ideas and beliefs,4 while the Press Clause focuses specifically on the liberty to disseminate expression broadly and "comprehends every sort of publication which affords a vehicle of information and opinion." Lovell v. Griffin, 303 U.S. 444 452, 58 S.Ct. 666, 669, 82 L.Ed. 949 (1938).5 Yet there is no fundamental distinction between expression and dissemination. The liberty encompassed by the Press Clause, although complementary to and a natural extension of Speech Clause liberty, merited special mention simply because it had been more often the object of official restraints. Soon after the invention of the printing press, English and continental monarchs, fearful of the power implicit in its use and the threat to Establishment thought and order—political and religious—devised restraints, such as licensing, censors, indices of prohibited books, and prosecutions for seditious libel, which generally were unknown in the pre-printing press era. Official restrictions were the official response to the new, disquieting idea that this invention would provide a means for mass communication.
53
The second fundamental difficulty with interpreting the Press Clause as conferring special status on a limited group is one of definition. See Lange,supra, at 100-107. The very task of including some entities within the "institutional press" while excluding others, whether undertaken by legislature, court, or administrative agency, is reminiscent of the abhorred licensing system of Tudor and Stuart England—a system the First Amendment was intended to ban from this country. Lovell v. Griffin, supra, 303 U.S., at 451-452, 58 S.Ct., at 668-669. Further, the officials undertaking that task would be required to distinguish the protected from the unprotected on the basis of such variables as content of expression, frequency or fervor of expression, or ownership of the technological means of dissemination. Yet nothing in this Court's opinions supports such a confining approach to the scope of Press Clause protection.6 Indeed, the Court has plainly intimated the contrary view:
54
"Freedom o the press is a 'fundamental personal right' which 'is not confined to newspapers and periodicals. It necessarily embraces pamphlets and leaflets . . .. The press in its historic connotation comprehends every sort of publication which affords a vehicle of information and opinion.' . . . The informative function asserted by representatives of the organized press . . . is also performed by lecturers, political pollsters, novelists, academic researchers, and dramatists. Almost any author may quite accurately assert that he is contributing to the flow of information to the public . . .." Branzburg v. Hayes, 408 U.S. 665, 704-705, 92 S.Ct. 2646, 2668, 33 L.Ed.2d 626 (1972), quoting Lovell v. Griffin, supra, 303 U.S., at 450, 452, 58 S.Ct., at 668, 669.
55
The meaning of the Press Clause, as a provision separate and apart from the Speech Clause, is implicated only indirectly by this case. Yet Massachusetts' position poses serious questions. The evolution of traditional newspapers into modern corporate conglomerates in which the daily dissemination of news by print is no longer the major part of the whole enterprise suggests the need for caution in limiting the First Amendment rights of corporations as such. Thus, the tentative probings of this brief inquiry are wholly consistent, I think, with the Court's refusal to sustain § 8's serious and potentially dangerous restriction on the freedom of political speech.
56
Because the First Amendment was meant to guarantee freedom to express and communicate ideas, I can see no difference between the right of those who seek to disseminate ideas by way of a newspaper and those who give lectures or speeches and seek to enlarge the audience by publication and wide dissemination. "[T]he purpose of the Constitution was not to erect the press into a privileged institution but to protect all persons in their right to print what they will as well as to utter it. ' . . . the liberty of the press is no greater and no less . . .' than the liberty of every citizen of the Republic." Pennekamp v. Florida, 328 U.S. 331, 364, 66 S.Ct. 1029, 1046, 90 L.Ed. 1295 (1946) (Frankfurter, J., concurring).
57
In short, the First Amendment does not "belong" to any definable category of persons or entities: It belongs to all who exercise its freedoms.
58
Mr. Justice WHITE, with whom Mr. Justice BRENNAN and Mr. Justice MARSHALL join, dissenting.
59
The Massachusetts statute challenged here forbids the use of corporate funds to publish views about referenda issues having no material effect on the business, property, or assets of the corporation. The legislative judgment that the personal income tax issue, which is the subject of the referendum out of which this case arose, has no such effect was sustained by the Supreme Judicial Court of Massachusetts and is not disapproved by this Court today. Hence, as this case comes to us, the issue is whether a State may prevent corporate management from using the corporate treasury to propagate views having no connection with the corporate business. The Court commendably enough squarely faces the issue but unfortunately errs in deciding it. The Court invalidates the Massachusetts statute and holds that the First Amendment guarantees corporate managers the right to use not only their personal funds, but also those of the corporation, to circulate fact and opinion irrelevant to the business placed in their charge and necessarily representing their own personal or collective views about political and social questions. I do not suggest for a moment that the First Amendment requires a State to forbid such use of corporate funds, but I do strongly disagree that the First Amendment forbids state interference with managerial decisions of this kind.
60
By holding that Massachusetts may not prohibit corporate expenditures or contributions made in connection with referenda involving issues having no material connection with the corporate business, the Court not only in alidates a statute which has been on the books in one form or another for many years, but also casts considerable doubt upon the constitutionality of legislation passed by some 31 States restricting corporate political activity,1 as well as upon the Federal Corrupt Practices Act, 2 U.S.C. § 441b (1976 ed.). The Court's fundamental error is its failure to realize that the state regulatory interests in terms of which the alleged curtailment of First Amendment rights accomplished by the statute must be evaluated are themselves derived from the First Amendment. The question posed by this case, as approached by the Court, is whether the State has struck the best possible balance, i. e., the one which it would have chosen, between competing First Amendment interests. Although in my view the choice made by the State would survive even the most exacting scrutiny, perhaps a rational argument might be made to the contrary. What is inexplicable, is for the Court to substitute its judgment as to the proper balance for that of Massachusetts where the State has passed legislation reasonably designed to further First Amendment interests in the context of the political arena where the expertise of legislators is at its peak and that of judges is at its very lowest.2 Moreover, the result reached today in critical respects marks a drastic departure from the Court's prior decisions which have protected against governmental infringement the very First Amendment interests which the Court now deems inadequate to justify the Massachusetts statute.
61
* There is now little doubt that corporate communications come within the scope of the First Amendment. This, however, is merely the starting point of analysis, because an examination of the First Amendment values that corporate expression furthers and the threat to the functioning of a free society it is capable of posing reveals that it is not fungible with communications emanating from individuals and is subject to restrictions which individual expression is not. Indeed, what some have considered to be the principal function of the First Amendment, the use of communication as a means of self-expression, self-realization, and self-fulfillment, is not at all furthered by corporate speech.3 It is clear that the communications of profitmaking corporations are not "an integral part of the development of ideas, of mental exploration and of the affirmation of self."4 They do not represent a manifestation of individual freedom or choice. Undoubtedly, as this Court has recognized, see NAACP v. Button, 371 U.S. 415, 83 S.Ct. 328, 9 L.Ed.2d 405 (1963), there are some corporations formed for the express purpose of advancing certain ideological causes shared by all their members, or, as in the case of the press, of disseminating information and ideas. Under such circumstances, association in a corporate form may be viewed as merely a means of achieving effective self-expression. But this is hardly the case generally with corporations operated for the purpose of making profits. Shareholders in such entities do not share a common set of political or social views, and they certainly have not invested their money for the purpose of advancing political or social causes or in an enterprise engaged in the business of disseminating news and opinion. In fact, as discussed infra, the government has a strong interest in assuring that investment decisions are not predicated upon agreement or disagreement with the activities of corporations in the political arena.
62
Of course, it may be assumed that corporate investors are united by a desire to make money, for the value of their investment to increase. Since even communications which have no purpose other than that of enriching the communicator have some First Amendment protection, activities such as advertising and other communications integrally related to the operation of the corporation's business may be viewed as a means of furthering the desires of individual shareholders.5 This unanimity of purpose breaks down, however, when corporations make expenditures or undertake activities designed to influence the opinion or votes of the general public on political and social issues that have no material connection with or effect upon their business, property, or assets. Although it is arguable that corporations make such expenditures because their managers believe that it is in the corporations' economic interest to do so, there is no basis whatsoever for concluding that these views are expressive of the heterogeneous beliefs of their shareholders whose convictions on many political issues are undoubtedly shaped by considerations other than a desire to endorse any electoral or ideological cause which would tend to increase the value of a particular corporate investment. This is particularly true where, as in this case, whatever the belief of the corporate managers may be, they have not been able to demonstrate that the issue involved has any material connection with the corporate business. Thus when a profitmaking corporation contributes to a political candidate this does not further the self-expression or self-fulfillment of its shareholders in the way that expenditures from them as individuals would.6
63
The self-expression of the communicator is not the only value encompassed by the First Amendment. One of its functions, often referred to as the right to hear or receive information, is to protect the interchange of ideas. Any communication of ideas, and consequently any expenditure of funds which makes the communication of ideas possible, it can be argued, furthers the purposes of the First Amendment. This proposition does not establish, however, that the right of the general public to receive communications financed by means of corporate expenditures is of the same dimension as that to hear other forms of expression. In the first place, as discussed supra, corporate expenditures designed to further political causes lack the connection with individual self-expression which is one of the principal justifications for the constitutional protection of speech provided by the First Amendment. Ideas which are not a product of individual choice are entitled to less First Amendment protection. Secondly, the restriction of corporate speech concerned with political matters impinges much less severely upon the availability of ideas to the general public than do restrictions upon individual speech. Even the complete curtailment of co porate communications concerning political or ideological questions not integral to day-to-day business functions would leave individuals, including corporate shareholders, employees, and customers, free to communicate their thoughts. Moreover, it is unlikely that any significant communication would be lost by such a prohibition. These individuals would remain perfectly free to communicate any ideas which could be conveyed by means of the corporate form. Indeed, such individuals could even form associations for the very purpose of promoting political or ideological causes.7
64
I recognize that there may be certain communications undertaken by corporations which could not be restricted without impinging seriously upon the right to receive information. In the absence of advertising and similar promotional activities, for example, the ability of consumers to obtain information relating to products manufactured by corporations would be significantly impeded. There is also a need for employees, customers, and shareholders of corporations to be able to receive communications about matters relating to the functioning of corporations. Such communications are clearly desired by all investors and may well be viewed as an associational form of self-expression. See United States v. CIO, 335 U.S. 106, 121-123, 68 S.Ct. 1349, 1356-1358, 92 L.Ed. 1849 (1948). Moreover, it is unlikely that such information would be disseminated by sources other than corporations. It is for such reasons that the Court has extended a certain degree of First Amendment protection to activities of this kind.8 None of these considerations, however, are implicated by a prohibition upon corporate expenditures relating to referenda concerning questions of general public concern having no connection with corporate business affairs.
65
It bears emphasis here that the Massachusetts statute forbids the expenditure of corporate funds in connection with referenda but in no way forbids the board of directors of a corporation from formulating and making public what it represents as the views of the corporation even though the subject addressed has no material effect whatsoever on the business of the corporation. These views could be publicized at the individual expense of the officers, directors, stockholders, or anyone else interested in circulating the corporate view on matters irrelevant to its business.
66
The governmental interest in regulating corporate political communications, especially those relating to electoral matters, also raises considerations which differ significantly from those governing the regulation of individual speech. Corporations are artificial entities created by law for the purpose of furthering certain economic goals. In order to facilitate the achievement of such ends, special rules relating to such matters as limited liability, perpetual life, and the accumulation, distribution, and taxation of assets are normally applied to them. States have provided corporations with such attributes in order to increase their economic viability and thus strengthen the economy generally. It has long been recognized however, that the special status of corporations has placed them in a position to control vast amounts of economic power which may, if not regulated, dominate not only the economy but also the very heart of our democracy, the electoral process. Although Buckley v. Valeo, 424 U.S. 1, 96 S.Ct. 612, 46 L.Ed.2d 659 (1976), provides support for the position that the desire to equalize the financial resources available to candidates does not justify the limitation upon the expression of support which a restriction upon individual contributions entails,9 the interest of Massachusetts and the many other States which have restricted corporate political activity is quite different. It is not one of equalizing the resources of opposing candidates or opposing positions, but rather of preventing institutions which have been permitted to amass wealth as a result of special advantages extended by the State for certain economic purposes from using that wealth to acquire an unfair advantage in the political process, especially where, as here, the issue involved has no material connection with the business of the corporation. The State need not permit its own creation to consume it. Massachusetts could permissibly conclude that not to impose limits upon the political activities of corporations would have placed it in a position of departing from neutrality and indirectly assisting the propagation of corporate views because of the advantages its laws give to the corporate acquisition of funds to finance such activities. Such expenditures may be viewed as seriously threatening the role of the First Amendment as a guarantor of a free marketplace of ideas. Ordinarily, the expenditure of funds to promote political causes may be assumed to bear some relation to the fervency with which they are held. Corporate political expression, however, is not only divorced from the convictions of individual corporate shareholders, but also, because of the ease with which corporations are permitted to accumulate capital, bears no relation to the conviction with which the ideas expressed are held by the communicator.10
67
The Court's opinion appears to recognize at least the possibility that fear of corporate domination of the electoral process would justify restrictions upon corporate expenditures and contributions in connection with referenda but brushes this interest aside by asserting that "there has been no showing that the relative voice of corporations has been overwhelming or even significant in influencing referenda in Massachusetts," ante, at 789, and by suggesting that the statute in issue represents an attempt to give an unfair advantage to those who hold views in opposition to positions which would otherwise be financed by corporations. Ante, at 785-786. It fails even to allude to the fact, however, that Massachusetts' most recent experience with unrestrained corporate expenditures in connection with ballot questions establishes precisely the contrary. In 1972, a proposed amendmen to the Massachusetts Constitution which would have authorized the imposition of a graduated income tax on both individuals and corporations was put to the voters. The Committee for Jobs and Government Economy, an organized political committee, raised and expended approximately $120,000 to oppose the proposed amendment, the bulk of it raised through large corporate contributions. Three of the present appellant corporations each contributed $3,000 to this committee. In contrast, the Coalition for Tax Reform, Inc., the only political committee organized to support the 1972 amendment, was able to raise and expend only approximately $7,000. App. to Jurisdictional Statement 41; App. to Record 48-84. Perhaps these figures reflect the Court's view of the appropriate role which corporations should play in the Massachusetts electoral process, but it nowhere explains why it is entitled to substitute its judgment for that of Massachusetts and other States,11 as well as the United States, which have acted to correct or prevent similar domination of the electoral process by corporate wealth.
68
This Nation has for many years recognized the need for measures designed to prevent corporate domination of the political process. The Corrupt Practices Act, first enacted in 1907, has consistently barred corporate contributions in connection with federal elections. This Court has repeatedly recognized that one of the principal purposes of this prohibition is "to avoid the deleterious influences on federal elections resulting from the use of money by those who exercise control over large aggregations of capital." United States v. International Union United Automobile Workers, 352 U.S. 567, 585, 77 S.Ct. 529, 538, 1 L.Ed.2d 563 (1957). See Pipefitters Local No. 562 v. United States, 407 U.S. 385, 415-416, 92 S.Ct. 2247, 2264-2265, 33 L.Ed.2d 11 (1972); United States v. CIO, 335 U.S., at 113, 68 S.Ct., at 1353. Although this Court has never adjudicated the constitutionality of the Act, there is no suggestion in its cases construing it, cited supra, that this purpose is in any sense illegitimate or deserving of other than the utmost respect; indeed, the thrust of its opinions, until today, has been to the contrary. See Automobile Workers, supra, 352 U.S., at 585, 77 S.Ct., at 538; Pipefitters Local No. 562, supra, 407 U.S., at 415-416, 92 S.Ct., at 2264-2265.
II
69
There is an additional overriding interest related to the prevention of corporate domination which is substantially advanced by Massachusetts' restrictions upon corporate contributions: assuring that shareholders are not compelled to support and financially further beliefs with which they disagree where, as is the case here, the issue involved does not materially affect the business, property, or other affairs of the corporation.12 The State has not interfered with the prerogatives of corporate management to communicate about matters that have material impact on the business affairs entrusted to them, however much individual stockholders may disagree on economic or ideological grounds. Nor has the State forbidden management from formulating and circulating its views at its own expense or at the expense of others even where the subject at issue is irrelevant to corporate business affairs. But Massachusetts has chosen to forbid corporate management from spending corporate funds in referenda elections absent some demonstrable effect of the issue on the economic life of the company. In short, corporate management may not use corporate monies to promote what does not further corporate affairs but what in the last analysis are the purely personal views of the management, individually or as a group.
70
This is not only a policy which a State may adopt consistent with the First Amendment but one which protects the very freedoms that this Court has held to be guaranteed by the First Amendment. In West Virginia Board of Education v. Barnette, 319 U.S. 624, 63 S.Ct. 1178, 87 L.Ed. 1628 (1943), the Court struck down a West Virginia statute which compelled children enrolled in public school to salute the flag and pledge allegiance to it on the ground that the First Amendment prohibits public authorities from requiring an individual to express support for or agreement with a cause with which he disagrees or concerning which he prefers to remain silent. Subsequent cases have applied this principle to prohibit organizations to which individuals are compelled to belong as a condition of employment from using compulsory dues to support candidates, political parties, or other forms of political expression which members disagree or do not wish to support. In International Assn. of Machinists v. Street, 367 U.S. 740, 81 S.Ct. 1784, 6 L.Ed.2d 1141 (1961), the Court was presented with allegations that a union shop authorized by the Railway Labor Act, 45 U.S.C. § 152 Eleventh, had used the union treasury to which all employees were compelled to contribute "to finance the campaigns of candidates for federal and state offices whom [the petitioners] 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. The Court recognized that compelling contributions for such purposes presented constitutional "questions of the utmost gravity" and consequently construed the Act to prohibit the use of compulsory union dues for political purposes. Id., at 749-750, 81 S.Ct., at 1789-1790. Last Term, in Abood v. Detroit Board of Education, 431 U.S. 209, 97 S.Ct. 1782, 52 L.Ed.2d 261 (1977), we confronted these constitutional questions and held that a State may not, even indirectly, require an individual to contribute to the support of an ideological cause he may oppose as a condition of employment. At issue were political expenditures made by a public employees' union. Michigan law provided that unions and local government employers might agree to an agency-shop arrangement pursuant to which every employee—even those not union members—must pay to the union, as a condition of employment, union dues or a service fee equivalent in amount to union dues. The legislation itself was not coercive; it did not command that local governments employ only those workers who were willing to pay union dues but left it to a bargaining representative democratically elected by a majority of the employees to enter or not enter into such a contractual arrangement through collective bargaining. In addition, of course, no one was compelled to work at a job covered by an agency-shop arrangement. Nevertheless, the Court ruled that under such circumstances the use of funds contributed by dissenting employees for political purposes impermissibly infringed their First Amendment right to adhere to their own beliefs and to refuse to defer to or support the beliefs of others.
71
Presumably, unlike the situations presented by Street and Abood, the use of funds inves ed by shareholders with opposing views by Massachusetts corporations in connection with referenda or elections would not constitute state action and, consequently, would not violate the First Amendment. Until now, however, the States have always been free to adopt measures designed to further rights protected by the Constitution even when not compelled to do so. It could hardly be plausibly contended that just because Massachusetts' regulation of corporations is less extensive than Michigan's regulation of labor-management relations, Massachusetts may not constitutionally prohibit the very evil which Michigan may not constitutionally permit. Yet this is precisely what the Court today holds. Although the Court places great stress upon the alleged infringement of the right to receive information produced by Massachusetts' ban on corporate expenditures which, for the reasons statedsupra, I believe to be misconceived, it fails to explain why such an interest was not sufficient to compel a different weighing of First Amendment interests and, consequently, a different result in Abood. After all, even contributions for political causes coerced by labor unions would, under the Court's analysis, increase unions' ability to disseminate their views and, consequently, increase the amount of information available to the general public.
72
The Court assumes that the interest in preventing the use of corporate resources in furtherance of views which are irrelevant to the corporate business and with which some shareholders may disagree is a compelling one, but concludes that the Massachusetts statute is nevertheless invalid because the State has failed to adopt the means best suited, in its opinion, for achieving this end. Ante, at 792-795. It proposes that the aggrieved shareholder assert his interest in preventing the expenditure of funds for nonbusiness causes he finds unconscionable through the channels provided by "corporate democracy" and purports to be mystified as to "why the dissenting shareholder's wishes are entitled to such greater solicitude in this context than in many others where equally important and controversial corporate decisions are made by management or by a predetermined percentage of the shareholders." Ante, at 794, and n. 34. It should be obvious that the alternative means upon the adequacy of which the majority is willing to predicate a constitutional adjudication is no more able to satisfy the State's interest than a ruling in Street and Abood leaving aggrieved employees to the remedies provided by union democracy would have satisfied the demands of the First Amendment. The interest which the State wishes to protect here is identical to that which the Court has previously held to be protected by the First Amendment: the right to adhere to one's own beliefs and to refuse to support the dissemination of the personal and political views of others, regardless of how large a majority they may compose. In most contexts, of course, the views of the dissenting shareholder have little, if any, First Amendment significance. By purchasing interests in corporations shareholders accept the fact that corporations are going to make decisions concerning matters such as advertising integrally related to their business operations according to the procedures set forth in their charters and bylaws. Otherwise, corporations could not function. First Amendment concerns of stockholders are directly implicated, however, when a corporation chooses to use its privileged status to finance ideological crusades which are unconnected with the corporate business or property and which some shareholders might not wish to support. Once again, we are provided no explanation whatsoever by the Court as to why the State's interest is of less constitutional weight than that of corporations to participate financially in the electoral process and as to why the balance between two First Amendment interests should be struck by this Court. Moreover, the Court offers no reason whatsoever for constitutionally imposing its choice of means to achieve a legitimate goal and invalidating those chosen by the State.13
73
Abood cannot be distinguished, as the present Court attempts to do,ante, at 794-795 n. 34, on the ground that the Court there did not constitutionally prohibit expenditures by unions for the election of political candidates or for ideological causes so long as they are financed from assessments paid by employees who are not coerced into doing so against their will. In the first place, the Court did not purport to hold that all political or ideological expenditures not constitutionally prohibited were constitutionally protected. A State might well conclude that the most and perhaps, in its view, the only effective way of preventing unions or corporations from using funds contributed by differing members or shareholders to support political causes having no connection with the business of the organization is to absolutely ban such expenditures. Secondly, unlike the remedies available to the Court in Street and Abood which required unions to refund the exacted funds in the proportion that union political expenditures with which a member disagreed bore to total union expenditures, no such alternative is readily available which would enable a corporate shareholder to maintain h § investment in a corporation without supporting its electoral or political ventures other than prohibiting corporations from participating in such activities. There is no apparent way of segregating one shareholder's ownership interest in a corporation from another's. It is no answer to respond, as the Court does, that the dissenting "shareholder . . . is free to withdraw his investment at any time and for any reason." Ante, at 794 n. 34. The employees in Street and Abood were also free to seek other jobs where they would not be compelled to finance causes with which they disagreed, but we held in Abood that First Amendment rights could not be so burdened. Clearly the State has a strong interest in assuring that its citizens are not forced to choose between supporting the propagation of views with which they disagree and passing up investment opportunities.
74
Finally, even if corporations developed an effective mechanism for rebating to shareholders that portion of their investment used to finance political activities with which they disagreed, a State may still choose to restrict corporate political activity irrelevant to business functions on the grounds that many investors would be deterred from investing in corporations because of a wish not to associate with corporations propagating certain views. The State has an interest not only in enabling individuals to exercise freedom of conscience without penalty but also in eliminating the danger that investment decisions will be significantly influenced by the ideological views of corporations. While the latter concern may not be of the same constitutional magnitude as the former, it is far from trivial. Corporations, as previously noted, are created by the State as a means of furthering the public welfare. One of their functions is to determine, by their success in obtaining funds, the uses to which society's resources are to be put. A State may legitimately conclude that corporations would not serve as economically efficient vehicles for such decisions if the investment preferences of the public were significantly affected by their ideological or political activities. It has long been recognized that such pursuits are not the proper business of corporations. The common law was generally interpreted as prohibiting corporate political participation.14 Indeed, the Securities and Exchange Commission's rules permit corporations to refuse to submit for shareholder vote any proposal which concerns a general economic, political, racial, religious, or social cause that is not significantly related to the business of the corporation or is not within its control.15
75
The necessity of prohibiting corporate political expenditures in order to prevent the use of corporate funds for purposes with which shareholders may disagree is not a unique perception of Massachusetts. This Court has repeatedly recognized that one of the purposes of the Corrupt Practices Act was to prevent the use of corporate or union funds for political purposes without the consent of the shareholders or union members and to protect minority interests from domination by corporate or union leadership.16 Although the Court has never, as noted supra, adjudicated the constitutionality of the Act, it has consistently treated this objective with deference. Indeed, in United States v. CIO, 335 U.S. 106, 68 S.Ct. 1349, 92 L.Ed. 1849 (1948), the Court construed a previous version of the Corrupt Practices Act so as to conform its prohibitions to those activities to which the Court believed union members or shareholders might object. After noting that if the statute "were construed to prohibit the publication, by c rporations and unions in the regular course of conducting their affairs, of periodicals advising their members, stockholders or customers of danger or advantage to their interests from the adoption of measures or the election to office of men, espousing such measures, the gravest doubt would arise in our minds as to its constitutionality," id., at 121, 68 S.Ct., at 1357, the Court held that the statute did not prohibit such in-house publications. It was persuaded that the purposes of the Act would not be impeded by such an interpretation, because it "is unduly stretching language to say that the members or stockholders are unwilling participants in such normal organizational activities, including the advocacy thereby of governmental policies affecting their interests, and the support thereby of candidates thought to be favorable to their interests." Id., at 123, 68 S.Ct. at 1357.
76
The Court today purports not to foreclose the possibility that the Corrupt Practices Act and state statutes which prohibit corporate expenditures only in the context of elections to public office may survive constitutional scrutiny because of the interest in preventing the corruption of elected representatives through the creation of political debts. Ante, at 788 n. 26. It does not choose to explain or even suggest, however, why the state interests which it so cursorily dismisses are less worthy than the interest in preventing corruption or the appearance of it. More importantly, the analytical framework employed by the Court clearly raises great doubt about the Corrupt Practices Act. The question in the present case, as viewed by the Court, "is whether the corporate identity of the speaker deprives this proposed speech of what otherwise would be its clear entitlement to protection," ante, at 778, which it answers in the negative. But the Court has previously held in Buckley v. Valeo, that the interest in preventing corruption is insufficient to justify restrictions upon individual expenditures relative to candidates for political office. If the corporate identity of the speaker makes no difference, all the Court has done is to reserve the formal interment of the Corrupt Practices Act and similar state statutes for another day. As I understand the view that has now become part of First Amendment jurisprudence, the use of corporate funds, even for causes irrelevant to the corporation's business, may be no more limited than that of individual funds. Hence, corporate contributions to and expenditures on behalf of political candidates may be no more limited than those of individuals. Individual contributions under federal law are limited but not entirely forbidden, and under Buckley v. Valeo expenditures may not constitutionally be limited at all. Most state corrupt practices Acts, like the federal Act, forbid any contributions or expenditures by corporations to or for a political candidate.
77
In my view, the interests in protecting a system of freedom of expression, set forth supra, are sufficient to justify any incremental curtailment in the volume of expression which the Massachusetts statute might produce. I would hold that apart from corporate activities, such as those discussed in Part I, supra, and exempted from regulation in CIO, which are integrally related to corporate business operations, a State may prohibit corporate expenditures for political or ideological purposes. There can be no doubt that corporate expenditures in connection with referenda immaterial to corporate business affairs fall clearly into the category of corporate activities which may be barred. The electoral process, of course, is the e sence of our democracy. It is an arena in which the public interest in preventing corporate domination and the coerced support by shareholders of causes with which they disagree is at its strongest and any claim that corporate expenditures are integral to the economic functioning of the corporation is at its weakest.17
78
I would affirm the judgment of the Supreme Judicial Court for the Commonwealth of Massachusetts.
79
Mr. Justice REHNQUIST, dissenting.
80
This Court decided at an early date, with neither argument nor discussion, that a business corporation is a "person" entitled to the protection of the Equal Protection Clause of the Fourteenth Amendment. Santa Clara County v. Southern Pacific R. Co., 118 U.S. 394, 396, 6 S.Ct. 1132, 30 L.Ed. 118 (1886). Likewise, it soon became accepted that the property of a corporation was protected under the Due Process Clause of that same Amendment. See, e. g., Smyth v. Ames, 169 U.S. 466, 522, 18 S.Ct. 418, 424, 42 L.Ed. 819 (1898). Nevertheless, we concluded soon thereafter that the liberty protected by that Amendment "is the liberty of natural, not artificial persons." Northwestern Nat. Life Ins. Co. v. Riggs, 203 U.S. 243, 255, 27 S.Ct. 126, 129, 51 L.Ed. 168 (1906). Before today, our only considered and explicit departures from that holding have been that a corporation engaged in the business of publishing or broadcasting enjoys the same liberty of the press as is enjoyed by natural persons, Grosjean v. American Press Co., 297 U.S. 233, 244, 56 S.Ct. 444, 446, 80 L.Ed. 660 (1936), and that a nonprofit membership corporation organized for the purpose of "achieving . . . equality of treatment by all government, federal, state and local, for the members of the Negro community" enjoys certain liberties of political expression. NAACP v. Button, 371 U.S. 415, 429, 83 S.Ct. 328, 336, 9 L.Ed.2d 405 (1963).
81
The question presented today, whether business corporations have a constitutionally protected liberty to engage in political activities, has never been squarely addressed by any previous decision of this Court.1 However, the General Court of the Commonwealth of Massachusetts, the Congress of the United States, and the legislatures of 30 other States of this Republic have considered the matter, and have concluded that restrictions upon the political activity of business corporations are both politically desirable and constitutionally permissible. The judgment of such a broad consensus of governmental bodies expressed over a period of many decades is entitled to considerable deference from this Court. I think it quite probable that their judgment may properly be reconciled with our controlling precedents, but I am certain that under my views of the limited application of the First Amendment to the States, which I share with the two immediately preceding occupants of my seat on the Court, but not with my present colleagues, the judgment of the Supreme Judicial Court of Massachusetts should be affirmed.
82
Early in our history, Mr. Chief Justice Marshall described the status of a corporation in the eyes of federal law:
83
"A corporation is an artificial being, invisible, intangible, and existing only in contemplation of law. Being the mere creature of law, it possesses only those properties which the charter of creation confers upon it, either expressly, or as incidental to its very existence. These are such as are supposed best calculated to effect the object for which it was created." Dartmouth College v. Woodward, 4 Wheat. 518, 636, 4 L.Ed. 629 (1819).
84
The appellants herein either were created by the Commonwealth or were admitted into the Commonwealth only for the limited purposes described in their charters and regulated by state law.2 Since it cannot be disputed that the mere creation of a corporation does not invest it with all the liberties enjoyed by natural persons, United States v. White, 322 U.S. 694, 698-701, 64 S.Ct. 1248, 1251-1252, 88 L.Ed. 1542 (1944) (corporations do not enjoy the privilege against self-incrimination), our inquiry must seek to determine which constitutional protections are "incidental to its very existence." Dartmouth College, supra, 4 Wheat. at 636.
85
There can be little doubt that when a State creates a corporation with the power to acquire and utilize property, it necessarily and implicitly guarantees that the corporation will not be deprived of that property absent due process of law. Likewise, when a State charters a corporation for the purpose of publishing a newspaper, it necessarily assumes that the corporation is entitled to the liberty of the press essential to the conduct of its business.3 Grosjean so held, and our subsequent cases have so assumed. E. g., Time, Inc. v. Firestone, 424 U.S. 448, 96 S.Ct. 958, 47 L.Ed.2d 154 (1976); New York Times Co. v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964).4 Until recently, it was not thought that any persons, natural or artificial, had any protected right to engage in commercial speech. See Virginia State Board of Pharmacy v. Virginia Citizens Consumer Council, 425 U.S. 748, 761-770, 96 S.Ct. 1817, 1825-1829, 48 L.Ed.2d 346 (1976). Although the Court has never explicitly recognized a corporation's right of commercial speech, such a right might be considered necessarily incidental to the business of a commercial corporation.
86
It cannot be so readily concluded that the right of political expression is equally necessary to carry out the functions of a corporation organized for commercial purposes.5 A State grants to a business corporation the blessings of potentially perpetual life and limited liability to enhance its efficiency as an economic entity. It might reasonably be concluded that those properties, so beneficial in the economic sphere, pose special dangers in the political sphere. Furthermore, it might be argued that liberties of political expression are not at all necessary to effectuate the purposes for which States permit commercial corporations to exist. So long as the Judicial Branches of the State and Federal Governments remain open to protect the corporation's interest in its property, it has no need, though it may have the desire, to petition the political branches for similar protection. Indeed, the States might reasonably fear that the corporation would use its economic power to obtain further benefits beyond those already bestowed.6 I would think that any particular form of organization upon which the State confers special privileges or immunities different from those of natural persons would be subject to like regulation, whether the organization is a labor union, a partnership, a trade association, or a corporation.
87
One need not adopt such a restrictive view of the political liberties of business corporations to affirm the judgment of the Supreme Judicial Court in this case. That court reasoned that this Court's decisions entitling the property of a corporation to constitutional protection should be construed as recognizing the liberty of a corporation to express itself on political matters concerning that property. Thus, the Court construed the statute in question not to forbid political expression by a corporation "when a general political issue materially affects a corporation's business, property or assets." 371 Mass. 773, 785, 359 N.E.2d 1262, 1270 (1977).
88
I can see no basis for concluding that the liberty of a corporation to engage in political activity with regard to matters having no material effect on its business is necessarily incidental to the purposes for which the Commonwealth permitted these corporations to be organized or admitted within its boundaries. Nor can I disagree with the Supreme Judicial Court's factual finding that no such effect has been shown by these appellants. Because the statute as construed provides at least as much protection as the Fourteenth Amendment requires, I believe it is constitutionally valid.
89
It is true, as the Court points out, ante, at 781-783, that recent decisions of this Court have emphasized the interest of the public in receiving the information offered by the speaker seeking protection. The free flow of information is in no way diminished by the Commonwealth's decision to permit the operation of business corporations with limited rights of political expression. All natural persons, who owe their existence to a higher sovereign than the Commonwealth, remain as free as before to engage in political activity. Cf. Maher v. Roe, 432 U.S. 464, 474, 97 S.Ct. 2376, 2382, 53 L.Ed.2d 484 (1977).
90
I would affirm the judgment of the Supreme Judicial Court.
1
Appellants are the First National Bank of Boston, New England Merchants National Bank, the Gillette Co., Digital Equipment Corp., and Wyman-Gordon Co.
2
Massachusetts Gen. Laws Ann., ch. 55, § 8 (West Supp. 1977), provides (with emphasis supplied):
"No corporation carrying on the business of a bank, trust, surety, indemnity, safe deposit, insurance, railroad, street railway, telegraph, telephone, gas, electric light, heat, power, canal, aqueduct, or water company, no company having the right to take land by eminent domain or to exercise franchises in public ways, granted by the commonwealth or by any county, city or town, no trustee or trustees owning or holding the majority of the stock of such a corporation, no business corporation incorporated under the laws of or doing business in the commonwealth and no officer or agent acting in behalf of any corporation mentioned in this section, shall directly or indirectly give, pay, expend or contribute, or promise to give, pay, expend or contribute, any money or other valuable thing for the purpose of aiding, promoting or preventing the nomination or election of any person to public office, or aiding, promoting or antagonizing the interests of any political party, or influencing or affecting the vote on any question submitted to the voters, other than one materially affecting any of the property, business or assets of the corporation. No question submitted to the voters solely concerning the taxation of the income, property or transactions of individuals shall be deemed materially to affect the property, business or assets of the corporation. No person or persons, no political committee, and no person acting under the authority of a political committee, or in its behalf, shall solicit or receive from such corporation or such holders of stock any gift, payment, expenditure, contribution or promise o give, pay, expend or contribute for any such purpose.
"Any corporation violating any provision of this section shall be punished by a fine of not more than fifty thousand dollars and any officer, director or agent of the corporation violating any provision thereof or authorizing such violation, . . . shall be punished by a fine of not more than ten thousand dollars or by imprisonment for not more than one year, or both."
3
This was not the first challenge to § 8. The statute's legislative and judicial history has been a troubled one. Its successive re-enactments have been linked to the legislature's repeated submissions to the voters of a constitutional amendment that would allow the enactment of a graduated tax.
The predecessor of § 8, Mass. Gen. Laws, ch. 55, § 7 (as amended by 1946 Mass.Acts, ch. 537, § 10), was first challenged in Lustwerk v. Lytron, Inc., 344 Mass. 647, 183 N.E.2d 871 (1962). Unlike § 8, § 7 did not dictate that questions concerning the taxation of individuals could not satisfy the "materially affecting" requirement. The Supreme Judicial Court construed § 7 not to prohibit a corporate expenditure urging the voters to reject a proposed constitutional amendment authorizing the legislature to impose a graduated tax on corporate as well as individual income.
After Lustwerk the legislature amended § 7 by adding the sentence: "No question submitted to the voters concerning the taxation of the income, property or transactions of individuals shall be deemed materially to affect the property, business or assets of the corporation." 1972 Mass.Acts, ch. 458. The statute was challenged in 1972 by four of the present appellants; they wanted to oppose a referendum proposal similar to the one submitted to and rejected by the voters in 1962. Again the expenditure was held to be lawful. First Nat. Bank of Boston v. Attorney General, 362 Mass. 570, 290 N.E.2d 526 (1972).
The most recent amendment was enacted on April 28, 1975, when the legislature further refined the second sentence of § 8 to apply only to ballot questions "solely" concerning the taxation of individuals. 1975 Mass.Acts, ch. 151, § 1. Following this amendment, the legislature on May 7, 1975, voted to submit to the voters on November 2, 1976, the proposed constitutional amendment authorizing the imposition of a graduated personal income tax. It was this proposal that led to the case now before us.
4
Appellants believe that the adoption of a graduated personal income tax would materially affect their business in a variety of ways, including, in the words of the court below,
"discouraging highly qualified executives and highly skilled professional personnel from settling, working or remaining in Massachusetts; promoting a tax climate which would be considered unfavorable by business corporations, thereby discouraging them from settling in Massachusetts with 'resultant adverse effects' on the plaintiff banks' loans, deposits, and other services; and tending to shrink the disposable income of individuals available for the purchase of the consumer products manufactured by at least one of the plaintiff corporations." 371 Mass., at 777, 359 N.E.2d, at 1266.
5
In contrast to its approach in the previous challenges to the predecessor of § 8, see n. 3, supra, the court determined that it had to address appellants' constitutional challenge because "[t]he statutory amendment to § 8 makes it clear that the Legislature has specifically proscribed corporate expenditures of moneys relative to this proposed amendment." 371 Mass., at 780, 359 N.E.2d, at 1268. This was clear from the language of the second sentence of § 8 and from the legislature's synchronized amendment of § 8 and approval of the submission of the ballot question to the voters.
6
For purposes of this decision we need not distinguish between the "two crimes" identified by the Supreme Judicial Court. Mr. JUSTICE WHITE, dissenting, conveys an incorrect impression of our decision when he states, post, at 803, that we have not disapproved the legislative judgment that the personal income tax issue could not have a material effect on any corporation, including appellants. We simply have no occasion either to approve or to disapprove that judgment. If we were to invalidate the second sentence of § 8, thereby putting a ballot question concerning taxation of individuals on the same plane as any other ballot question, we still would have to decide whether the "materially affecting" limitation in the general prohibition of § 8 could be squared with the First Amendment. The court below already has held that appellants' proposed expenditures would not meet that test and therefore would be proscribed. This is a finding of fact which we have no occasion to review. But cf. n. 21, infra.
Conversely, we would have to reach the question of the constitutionality of the "second" and more restrictive crime only if we first concluded that it is permissible under the First Amendment to limit corporate speech to matters materially affecting the corporation's business, property, or assets. Because the "materially affecting" limitation bars appellants from making their proposed expenditures under either the first or second sentence of § 8, we must decide whether that limitation is constitutional.
7
The court stated that § 8 would not prohibit the publication of "in-house" newspapers or communications to stockholders containing the corporation's view on a graduated personal income tax; the participation by corporate employees, at corporate expense, in discussions or legislative hearings on the issue; the participation of corporate officers, directors, stockholders, or employees in public discussion of the issue on radio or television, at news conferences, or through statements to the press or "similar means not involving contributions or expenditure of corporate funds"; or speeches or comments by employees or officers, on working hours, to the press or a chamber of commerce. 371 Mass., at 789, 359 N.E.2d, at 1272.
8
Because of our disposition of appellants' First Amendment claim, we need not address any of these arguments.
9
Most of the States, and the District of Columbia, impose graduated personal income taxes. U.S. Dept. of Commerce, Bureau of the Census, State Government Tax Collections in 1977, Table 9, p. 13 (1977). Several States impose a graduated tax on corporate income. Advisory Commission on Intergovernmental Relations, Significant Features of Fiscal Federalism, Vol. II, Table 113, pp. 219-222 (1977).
10
We are informed that the Attorney General also has threatened one of the appellants with prosecution under § 8 for an expenditure in support of a local referendum proposal concerning a civic center. Brief for Appellants 22 n. 7, A-1.
11
Freedom of expression has particular significance with respect to government because "[i]t is here that the state has a special incentive to repress opposition and often wields a more effective power of suppression." T. Emerson, Toward a General Theory of the First Amendment 9 (1966). See also A. Meiklejohn, Free Speech and Its Relation to Self-Government 24-26 (1948).
12
The individual's interest in self-expression is a concern of the First Amendment separate from the concern for open and informed discussion, although the two often converge. See G. Gunther, Cases and Materials on Constitutional Law 1044 (9th ed. 1975); T. Emerson, The System of Freedom of Expression 6 (1970). The Court has declared, however, that "speech concerning public affairs is more than self-expression; it is the essence of self-government." Garrison v. Louisiana, 379 U.S. 64, 74-75, 85 S.Ct. 209, 216, 13 L.Ed.2d 125 (1964). And self-government suffers when those in power suppress competing views on public issues "from diverse and antagonistic sources." Associated Press v. United States, 326 U.S. 1, 20, 65 S.Ct. 1416, 1424, 89 L.Ed. 2013 (1945), quoted in New York Times Co. v. Sullivan, 376 U.S. 254, 266, 84 S.Ct. 710, 718, 11 L.Ed.2d 686 (1964).
13
Nor is there any occasion to consider in this case whether, under different circumstances, a justification for a restriction on speech that would be inadequate as applied to individuals might suffice to sustain the same restriction as applied to corporations, unions, or like entities.
14
The Massachusetts court did not go so far as to accept appellee's argument that corporations, as creatures of the State, have only those rights granted them by the State. See Brief for Appellee 4, 23-25. Cf. Mr. Justice WHITE's dissent, post, at 809; Mr. Justice REHNQUIST's dissent, post, at 822. The court below recognized that such an extreme position could not be reconciled either with the many decisions holding state laws invalid under the Fourteenth Amendment when they infringe protected speech by corporate bodies, e. g., Linmark Associates, Inc. v. Township of Willingboro, 431 U.S. 85, 97 S.Ct. 1614, 52 L.Ed.2d 155 (1977); Time, Inc. v. Firestone, 424 U.S. 448, 96 S.Ct. 958, 47 L.Ed.2d 154 (1976); Doran v. Salem Inn, Inc., 422 U.S. 922, 95 S.Ct. 2561, 45 L.Ed.2d 648 (1975); Southeastern Promotions, Ltd. v. Conrad, 420 U.S. 546, 95 S.Ct. 1239, 43 L.Ed.2d 448 (1975); Cox Broadcasting Corp. v. Cohn, 420 U.S. 469, 95 S.Ct. 1029, 43 L.Ed.2d 328 (1975); Miami Herald Publishing Co. v. Tornillo, 418 U.S. 241, 94 S.Ct. 2831, 41 L.Ed.2d 730 (1974); New York Times Co. v. United States, 403 U.S. 713, 91 S.Ct. 2140, 29 L.Ed.2d 822 (1971); Time, Inc. v. Hill, 385 U.S. 374, 87 S.Ct. 534, 17 L.Ed.2d 456 (1967); New York Times Co. v. Sullivan, supra; Kingsley Int'l Pictures Corp. v. Regents, 360 U.S. 684, 79 S.Ct. 1362, 3 L.Ed.2d 1512 (1959); Joseph Burstyn, Inc. v. Wilson, 343 U.S. 495, 72 S.Ct. 777, 96 L.Ed. 1098 (1952), or with decisions affording corporations the protection of constitutional guarantees other than the First Amendment. E. g., United States v. Martin Linen Supply Co., 430 U.S. 564, 97 S.Ct. 1349, 51 L.Ed.2d 642 (1977) (Fifth Amendment double jeopardy); G. M. Leasing Corp. v. United States, 429 U.S. 338, 353, 97 S.Ct. 619, 628, 50 L.Ed.2d 530 (1977) (Fourth Amendment). In any event, appellee's argument is inapplicable to two of the appellants. National banks are creatures of federal law and in-
strumentalities of the Federal Government, Easton v. Iowa, 188 U.S. 220, 229-230, 23 S.Ct. 288, 290, 47 L.Ed. 452 (1903); McCulloch v. Maryland, 4 Wheat. 316, 4 L.Ed. 579 (1819), and their existence is in no way dependent on state law. See 7A Michie, Banks and Banking, ch. 15, §§ 1, 5 (1973 ed.).
In cases where corporate speech has been denied the shelter of the First Amendment, there is no suggestion that the reason was because a corporation rather than an individual or association was involved. E. g., Young v. American Mini Theatres, Inc., 427 U.S. 50, 96 S.Ct. 2440, 49 L.Ed.2d 310 (1976); Pittsburgh Press o. v. Pittsburgh Comm'n on Human Relations, 413 U.S. 376, 93 S.Ct. 2553, 37 L.Ed.2d 669 (1973); Kingsley Books, Inc. v. Brown, 354 U.S. 436, 77 S.Ct. 1325, 1 L.Ed.2d 1469 (1957). Corporate identity has been determinative in several decisions denying corporations certain constitutional rights, such as the privilege against compulsory self-incrimination, Wilson v. United States, 221 U.S. 361, 382-386, 31 S.Ct. 538, 545-546, 55 L.Ed. 771 (1911), or equality with individuals in the enjoyment of a right to privacy, California Bankers Assn. v. Shultz, 416 U.S. 21, 65-67, 94 S.Ct. 1494, 1519-1520, 39 L.Ed.2d 812 (1974); United States v. Morton Salt Co., 338 U.S. 632, 651-652, 70 S.Ct. 357, 368-369, 94 L.Ed. 401 (1950), but this is not because the States are free to define the rights of their creatures without constitutional limit. Otherwise, corporations could be denied the protection of all constitutional guarantees, including due process and the equal protection of the laws. Certain "purely personal" guarantees, such as the privilege against compulsory self-incrimination, are unavailable to corporations and other organizations because the "historic function" of the particular guarantee has been limited to the protection of individuals. United States v. White, 322 U.S. 694, 698-701, 64 S.Ct. 1248, 1251-1252, 88 L.Ed. 1542 (1944). Whether or not a particular guarantee is "purely personal" or is unavailable to corporations for some other reason depends on the nature, history, and purpose of the particular constitutional provision.
15
It has been settled for almost a century that corporations are persons within the meaning of the Fourteenth Amendment. Santa Clara County v. Southern Pacific R. Co., 118 U.S. 394, 6 S.Ct. 1132, 30 L.Ed. 118 (1886); see Covington & Lexington Turnpike R. Co. v. Sanford, 164 U.S. 578, 17 S.Ct. 198, 41 L.Ed. 560 (1896).
16
The appellant in Grosjean argued that "[t]he iberty guaranteed by the fourteenth amendment against deprivation without due process of law is the liberty of NATURAL not of artificial persons." Brief for Appellant in Grosjean v. American Press Co., O.T. 1935, No. 303, p. 42; see 297 U.S., at 235, 56 S.Ct., at 445. See also Hague v. CIO, 307 U.S. 496, 518, 59 S.Ct. 954, 965, 83 L.Ed. 1423 (1939) (opinion of Stone, J.). But see NAACP v. Alabama ex rel. Patterson, 357 U.S. 449, 78 S.Ct. 1163, 2 L.Ed.2d 1488 (1958); NAACP v. Button, 371 U.S. 415, 83 S.Ct. 328, 9 L.Ed.2d 405 (1963).
The semantic reasoning of the court below would lead logically to the conclusion that the protection afforded speech by corporations, or, for that matter, other artificial entities and associations, would differ depending on whether the source of the alleged abridgment was a State or the Federal Government. But the States do not have greater latitude than Congress to abridge freedom of speech. The dissenting opinion of Mr. Justice Rehnquist, post, at 823, is predicated on the view that the First Amendment has only a "limited application . . . to the States." See also Buckley v. Valeo, 424 U.S. 1, 291-292, 96 S.Ct. 612, 760-761, 46 L.Ed.2d 659 (1976) (opinion of Rehnquist, J.). Although advanced forcefully by Mr. Justice Jackson in 1952, Beauharnais v. Illinois, 343 U.S. 250, 287-295, 72 S.Ct. 725, 746-750, 96 L.Ed. 919 (1952) (dissenting opinion), and repeated by Mr. Justice Harlan in 1957, Roth v. United States, 354 U.S. 476, 500-503, 77 S.Ct. 1304, 1317-1319, 1 L.Ed.2d 1498 (1957) (dissenting opinion), this view has never been accepted by any majority of this Court.
17
By its terms, § 8 would seem to apply to corporate members of the press. The court below noted, however, that no one "has . . . asserted that [§ 8] bars the press, corporate, institutional or otherwise, from engaging in discussion or debate on the referendum question." 371 Mass., at 785 n. 13, 359 N.E.2d, at 1270 n. 13. Because none of the appellants claimed to be part of the institutional press, the court did not "venture an opinion on such matters." Ibid.
The observation of Mr. Justice WHITE, post, at 808 n. 8, that media corporations cannot be "immunize[d]" from restrictions on electoral expenditures, ignores the fact that those corporations need not make separately identifiable expenditures to communicate their views. They accomplish the same objective each day within the framework of their usual protected communications.
18
If we were to adopt appellee's suggestion that communication by corporate members of the institutional press is entitled to greater constitutional protection than the same communication by appellants, the result would not be responsive to the informational purpose of the First Amendment. Certainly there are voters in Massachusetts, concerned with such economic issues as the tax rate, employment opportunities, and the ability to attract new business into the State and to prevent established businesses from leaving, who would be as interested in hearing appellants' views on a graduated tax as the views of media corporations that might be less knowledgeable on the subject. "[P]ublic debate must not only be unfettered; it must also be informed." Saxbe v. Washington Post Co., 417 U.S. 843, 862-863, 94 S.Ct. 2811, 2821, 41 L.Ed.2d 514 (1974) (Powell, J., dissenting).
Mr. Justice WHITE's dissenting view would empower a State to restrict corporate speech far more narrowly than would the opinion of the Massachusetts court or the statute under consideration. This case involves speech in connection with a referendum. Mr. Justice WHITE's rationale would allow a State to proscribe the expenditure of corporate funds at any time for the purpose of expressing views on "political [or] social questions" or in connection with undefined "ideological crusades," unless the expenditures were shown to be "integrally related to corporate business operations." Post, at 803, 805, 806, 816, 819, 821. Thus corporate activities that are widely viewed as educational and socially constructive could be prohibited. Corporations no longer would be able safely to support—by contributions or public service advertising—educational, charitable, cultural, or even human rights causes. Similarly, informational advertising on such subjects of national interest as inflation and the worldwide energy problem could be prohibited. Many of these "causes" and subjects could be viewed as "social," "political," or "ideological." No prudent corporate management would incur the risk of criminal penalties, such as those in the Massachusetts Act, that would follow from a failure to prove the materiality to the corporation's "business, property or assets" of such contributions or advertisements. See n. 21, infra.
19
The suggestion in Mr. Justice WHITE's dissent, post, at 807, that the First Amendment affords less protection to ideas that are not the product of "individual choice" would seem to apply to newspaper editorials and every other form of speech created under the auspices of a corporate body. No decision of this Court lends support to such a restrictive notion.
20
It is somewhat ironic that appellee seeks to reconcile these decisions with the "materially affecting" concept by noting that the commercial speaker would "have a direct financial interest in the speech," Brief for Appellee 19, and n. 12. Until recently, the "purely commercial" nature of an advertisement was thought to undermine and even negate its entitlement to the sanctuary of the First Amendment. Valentine v. Chrestensen, 316 U.S. 52, 62 S.Ct. 920, 86 L.Ed. 1262 (1942); see Bigelow v. Virginia, 421 U.S. 809, 822, 95 S.Ct. 2222, 2232, 44 L.Ed.2d 600 (1975); Virginia State Bd. of Pharmacy v. Virginia Citizens Consumer Council, Inc., 425 U.S. 748, 96 S.Ct. 1817, 48 L.Ed.2d 346 (1976). Appellee would invert the debate by giving constitutional significance to a corporation's "hawking of wares" while approving criminal sanctions for a bank's expression of opinion on a tax law of general public interest.
In emphasizing the societal interest and the fact that this Court's decisions have not turned on the effect upon the speaker's business interests, we do not say that such interests may not be relevant or important in a different context.
21
Even assuming that the rationale behind the "materially affecting" requirement itself were unobjectionable, the limitation in § 8 would have an impermissibly restraining effect on protected speech. Much valuable information which a corporation might be able to provide would remain unpublished because corporate management would not be willing to risk the substantial criminal penalties—personal as well as corporate—provided for in § 8. New York Times Co. v. Sullivan, 376 U.S., at 279, 84 S.Ct., at 725; Smith v. California, 361 U.S. 147, 151, 80 S.Ct. 215, 217, 4 L.Ed.2d 205 (1959); Speiser v. Randall, 357 U.S. 513, 526, 78 S.Ct. 1332, 1342, 2 L.Ed.2d 1460 (1958). As the facts in this case illustrate, management never could be sure whether a court would disagree with its judgment as to the effect upon the corporation's business of a particular referendum issue. In addition, the burden and expense of litigating the issue especially when what must be established is a complex and amorphous economic relationship—would unduly impinge on the exercise of the constitutional right. "[T]he free dissemination of ideas [might] be the loser." Smith v. California, supra, 361 U.S., at 151, 80 S.Ct., at 218; see Freedman v. Maryland, 380 U.S. 51, 59-60, 85 S.Ct. 734, 739-740, 13 L.Ed.2d 649 (1965).
22
Cf. City of Madison, Joint School Dist. No. 8 v. Wisconsin Employment Relations Comm'n, 429 U.S. 167, 175-176, 97 S.Ct. 421, 426-427, 50 L.Ed.2d 376 (1976).
Our observation about the apparent purpose of the Massachusetts Legislature is not an endorsement of the legislature's factual assumptions about the views of corporations. We know of no documentation of the notion that corporations are likely to share a monolithic view on an issue such as the adoption of a graduated personal income tax. Corporations, like individuals or groups, are not homogeneous. They range from great multi-national enterprises whose stock is publicly held and traded to medium-size public companies and to those that are closely held and controlled by an individual or family. It is arguable that small or medium-size corporations might welcome imposition of a graduated personal income tax that might shift a greater share of the tax burden onto wealthy individuals. See Brief for New England Council as Amicus Curiae 23-24.
23
It is too late to suggest "that the dependence of a communication on the expenditure of money itself operates to introduce a nonspeech element or to reduce the exacting scrutiny required by the First Amend ent." Buckley v. Valeo, 424 U.S., at 16, 96 S.Ct., at 633; see New York Times Co. v. Sullivan, 376 U.S., at 266, 84 S.Ct., at 718. Furthermore, § 8 is an "attempt directly to control speech . . . rather [than] to protect, from an evil shown to be grave, some interest clearly within the sphere of governmental concern." Speiser v. Randall, 357 U.S., at 527, 78 S.Ct., at 1343. Cf. United States v. O'Brien, 391 U.S. 367, 88 S.Ct. 1673, 20 L.Ed.2d 672 (1968).
24
The court justified its deferential standard of review more explicitly in its discussion of appellants' equal protection claim:
"We think that the appropriate standard of review on this issue is not the strict scrutiny that the plaintiffs suggest is apposite but, rather, is the traditional scrutiny involving economic matters. While we agree with the plaintiffs that where free speech is involved strict scrutiny is required . . ., we have already concluded that the plaintiffs do not possess First Amendment rights on matters not shown to affect materially their business, property or assets." 371 Mass., at 793, 359 N.E.2d, at 1275 (citations omitted).
25
The court reasoned that the inclusion of business corporations in § 8, but not entities such as unincorporated associations, partnerships, labor unions, or nonprofit corporations, might be attributable to the fact that the latter entities do not have shareholders: "Section 8 could represent a legislative desire to protect such shareholders against ultra vires activities . . . ." Id., at 794, 359 N.E.2d, at 1275. The court found justification for the noninclusion of other entities that have shareholders, such as business trusts and real estate investment trusts, in the supposition that "the Legislature may justifiably have concluded that such trusts did not present the type of problem in this area presented by general business corporations." Ibid. The court did not specify which "type of problem" it meant.
26
In addition to prohibiting corporate contributions and expenditures for the purpose of influencing the vote on a ballot question submitted to the voters, § 8 also proscribes corporate contributions or expenditures "for the purpose of aiding, promoting or preventing the nomination or election of any person to public office, or aiding, promoting, or antagonizing the interests of any political party." See n. 2, supra. In this respect, the statute is not unlike many other state and federal laws regulating corporate participation in partisan candidate elections. Appellants do not challenge the constitutionality of laws prohibiting or limiting corporate contributions to political candidates or committees, or other means of influencing candidate elections. Cf. Pipefitters Local Union N . 562 v. United States, 407 U.S. 385, 92 S.Ct. 2247, 33 L.Ed.2d 11 (1972); United States v. United Automobile Workers, 352 U.S. 567, 77 S.Ct. 529, 1 L.Ed.2d 563 (1957); United States v. CIO, 335 U.S. 106, 68 S.Ct. 1349, 92 L.Ed. 1849 (1948). About half of these laws, including the federal law, 2 U.S.C. § 441b (1976 ed.) (originally enacted as the Federal Corrupt Practices Act, 34 Stat. 864), by their terms do not apply to referendum votes. Several of the others proscribe or limit spending for "political" purposes, which may or may not cover referenda. See Schwartz v. Romnes, 495 F.2d 844 (CA2 1974).
The overriding concern behind the enactment of statutes such as the Federal Corrupt Practices Act was the problem of corruption of elected representatives through the creation of political debts. See United States v. United Automobile Workers, supra, 352 U.S., at 570-575, 77 S.Ct., at 530-533; Schwartz v. Romnes, supra, at 849-851. The importance of the governmental interest in preventing this occurrence has never been doubted. The case before us presents no comparable problem, and our consideration of a corporation's right to speak on issues of general public interest implies no comparable right in the quite different context of participation in a political campaign for election to public office. Congress might well be able to demonstrate the existence of a danger of real or apparent corruption in independent expenditures by corporations to influence candidate elections. Cf. Buckley v. Valeo, supra, 424 U.S., at 46, 96 S.Ct., at 647; Comment, The Regulation of Union Political Activity: Majority and Minority Rights and Remedies, 126 U.Pa.L.Rev. 386, 408-410 (1977).
27
United States v. United Automobile Workers, supra, 352 U.S., at 575, 77 S.Ct., at 533.
28
In his dissenting opinion, Mr. Justice WHITE relies on incomplete facts with respect to expenditures in the 1972 referendum election, in support of his perception as to t e "domination of the electoral process by corporate wealth." Post, at 811; see post, at 810-811. The record shows only the extent of corporate and individual contributions to the two committees that were organized to support and oppose, respectively, the constitutional amendment. It does show that three of the appellants each contributed $3,000 to the "opposition" committee. The dissenting opinion makes no reference to the fact that amounts of money expended independently of organized committees need not be reported under Massachusetts law, and therefore remain unknown.
Even if viewed as material, any inference that corporate contributions "dominated" the electoral process on this issue is refuted by the 1976 election. There the voters again rejected the proposed constitutional amendment even in the absence of any corporate spending, which had been forbidden by the decision below.
29
See Schwartz v. Romnes, supra, 495 F.2d, at 851; C&C Plywood Corp. v. Hanson, 420 F.Supp. 1254 (Mont.1976), appeal docketed, No. 76-3118 (CA9, Sept. 21, 1976); Pacific Gas & Elec. Co. v. Berkeley, 60 Cal.App.3d 123, 131 Cal.Rptr. 350 (1976); Advisory Opinion on Constitutionality of 1975 Pub. Act 227, 396 Mich. 465, 491, 493-495, 242 N.W.2d 3, 13, 14-15 (1976).
Appellee contends that the State's interest in sustaining the active role of the individual citizen is especially great with respect to referenda because they involve the direct participation on the people in the lawmaking process. But far from inviting greater restriction of speech, the direct participation of the people in a referendum, if anything, increases the need for " 'the widest possible dissemination of information from diverse and antagonistic sources.' " New York Times Co. v. Sullivan, 376 U.S., at 266, 84 S.Ct., at 718 (quoting Associated Press v. United States, 326 U.S., at 20, 65 S.Ct., at 1424).
30
Mr. Justice WHITE argues, without support in the record, that because corporations are given certain privileges by law they are able to "amass wealth" and then to "dominate" debate on an issue. Post, at 809, 821. He concludes from this generalization that the State has a subordinating interest in denying corporations access o debate and, correspondingly, in denying the public access to corporate views. The potential impact of this argument, especially on the news media, is unsettling. One might argue with comparable logic that the State may control the volume of expression by the wealthier, more powerful corporate members of the press in order to "enhance the relative voices" of smaller and less influential members.
Except in the special context of limited access to the channels of communication, see Red Lion Broadcasting Co. v. FCC, 395 U.S. 367, 89 S.Ct. 1794, 23 L.Ed.2d 371 (1969), this concept contradicts basic tenets of First Amendment jurisprudence. We rejected a similar notion in Miami Herald Publishing Co. v. Tornillo, 418 U.S. 241, 94 S.Ct. 2831, 41 L.Ed.2d 730 (1974). There we held that the First Amendment prohibits a State from requiring a newspaper to make space available at no cost for a reply from a candidate whom the newspaper has criticized. The state court had held that "free speech was enhanced and not abridged by the Florida right-of-reply statute, which in that court's view, furthered the 'broad societal interest in the free flow of information to the public.' " Id., at 245, 94 S.Ct., at 2833. Far more than in the instant case, allegations were there made and substantiated of a concentration in the hands of a few of "the power to inform the American people and shape public opinion," and that "the public has lost any ability to respond or to contribute in a meaningful way to the debate on issues." Id., at 250, 94 S.Ct., at 2836.
31
Government is forbidden to assume the task of ultimate judgment, lest the people lose their ability to govern themselves. See Thornhill v. Alabama, 310 U.S. 88, 95, 60 S.Ct. 736, 740, 84 L.Ed. 1093 (1940); Meiklejohn, The First Amendment is an Absolute, 1961 S.Ct.Rev. 245, 263. The First Amendment rejects the "highly paternalistic" approach of statutes like § 8 which restrict what the people may hear. Virginia State Bd. of Pharmacy v. Virginia Citizens Consumer Council, Inc., 425 U.S., at 770, 96 S.Ct., at 1829; see Linmark Associates, Inc. v. Township of Willingboro, 431 U.S., at 97, 97 S.Ct., at 1620; Whitney v. California, 274 U.S. 357, 377, 47 S.Ct. 641, 648, 71 L.Ed. 1095 (1927) (Brandeis, J., concurring); Abrams v. United States, 250 U.S. 616, 630, 40 S.Ct. 17, 22, 63 L.Ed. 1173 (1919) (Holmes, J., dissenting).
The State's paternalism evidenced by this statute is illustrated by the fact that Massachusetts does not prohibit lobbying by corporations, which are free to exert as much influence on the people's representatives as their resources and inclinations permit. Presumably the legislature thought its members competent to resist the pressures and blandishments of lobbying, but had markedly less confidence in the electorate. If the First Amendment protects the right of corporations to petition legislative and administrative bodies, see California Motor Transp. Co. v. Trucking Unlimited, 404 U.S. 508, 510-511, 92 S.Ct. 609, 611-612, 30 L.Ed.2d 642 (1972); Eastern Railroad Presidents Conf. v. Noerr Motor Freight, Inc., 365 U.S. 127, 137-138, 81 S.Ct. 523, 529-530, 5 L.Ed.2d 464 (1961), there hardly can be less reason for allowing corporate views to be presented openly to the people when they are to take action in their sovereign capacity.
32
Corporate advertising, unlike some methods of participation in political campaigns, is likely to be highly visible. Identification of the source of advertising may be required as a means of disclosure, so that the people will be able to evaluate the arguments to which they are being subjected. See Buckley, 424 U.S., at 66-67, 96 S.Ct., at 657-658; United States v. Harriss, 347 U.S. 612, 625-626, 74 S.Ct. 808, 815-817, 98 L.Ed. 989 (1954). In addition, we emphasized in Buckley the prophylactic effect of requiring that the source of communication be disclosed. 424 U.S., at 67, 96 S.Ct., at 657.
33
Thomas v. Collins, 323 U.S. 516, 537, 65 S.Ct 315, 325, 89 L.Ed. 430 (1945).
34
Appellee does not explain why the dissenting shareholder's wishes are entitled to such greater solicitude in this context than in many others where equally important and controversial corporate decisions are made by management or by a predetermined percentage of the shareholders. Mr. Justice WHITE's repeatedly expressed concern for corporate shareholders who may be "coerced" into supporting "causes with which they disagree" apparently is not shared by appellants' shareholders. Not a single shareholder has joined appellee in defending the Massachusetts statute or, so far as the record shows, has interposed any obj ction to the right asserted by the corporations to make the proscribed expenditures.
The dissent of Mr. Justice WHITE relies heavily on Abood v. Detroit Board of Education, 431 U.S. 209, 97 S.Ct. 1782, 52 L.Ed.2d 261 (1977), and International Assn. of Machinists v. Street, 367 U.S. 740, 81 S.Ct. 1784, 6 L.Ed.2d 1141 (1961). These decisions involved the First Amendment rights of employees in closed or agency shops not to be compelled, as a condition of employment, to support with financial contributions the political activities of other union members with which the dissenters disagreed.
Street and Abood are irrelevant to the question presented in this case. In those cases employees were required, either by state law or by agreement between the employer and the union, to pay dues or a "service fee" to the exclusive bargaining representative. To the extent that these funds were used by the union in furtherance of political goals, unrelated to collective bargaining, they were held to be unconstitutional because they compelled the dissenting union member " 'to furnish contributions of money for the propagation of opinions which he disbelieves . . ..' " Abood, supra, 431 U.S., at 235 n. 31, 97 S.Ct., at 1799 (Thomas Jefferson as quoted in I. Brant, James Madison: The Nationalist 354 (1948)).
The critical distinction here is that no shareholder has been "compelled" to contribute anything. Apart from the fact, noted by the dissent, that compulsion by the State is wholly absent, the [shareholder] invests in a corporation of his own volition and is [free to withdraw his investment at any time and for any reason.] A more relevant analogy, therefore, is to the situation where an employee voluntarily joins a union, or an individual voluntarily joins an association, and later finds himself in disagreement with its stance on a political issue. The Street and Abood Courts did not address the question whether, in such a situation, the union or association must refund a portion of the dissenter's dues or, more drastically, refrain from expressing the majority's views. In addition, even apart from the substantive differences between compelled membership in a union and voluntary investment in a corporation or voluntary participation in any collective organization, it is by no means an automatic step from the remedy in Abood, which honored the interests of the minority without infringing the majority's rights to the position adopted by the dissent which would completely silence the majority because a hypothetical minority might object.
1
It may be that a nonmedia corporation, because of its nature, is subject to more limitations on political expression than a media corporation whose very existence is aimed at political expression. For example, the charter of a nonmedia corporation may be so framed as to render such activity or expression ultra vires; or its shareholders may be much less inclined to permit expenditure for corporate speech. Moreover, a nonmedia corporation may find it more difficult to characterize its expenditures as ordinary and necessary business expenses for tax purposes.
2
It is open to question whether limitations can be placed on the free expression rights of some without undermining the guarantees of all. Experience with statutory limitations on campaign expenditures on behalf of candidates or parties may shed some light on this issue. Cf. Buckley v. Valeo, 424 U.S. 1, 96 S.Ct. 612, 46 L.Ed.2d 659 (1976).
3
Language in some cases perhaps may be read as assuming or suggesting no independent scope to the Press Clause, see Pell v. Procunier, 417 U.S. 817, 834, 94 S.Ct. 2800, 2810, 41 L.Ed.2d 495 (1974), or the contrary, see Bigelow v. Virginia, 421 U.S. 809, 828, 95 S.Ct. 2222, 2235, 44 L.Ed.2d 600 (1975). The Court, however, has not yet focused on the issue. See Lange, The Speech and Press Clauses, 23 UCLA L.Rev. 77 (1975); Nimmer, Introduction Is Freedom of the Press a Redundancy: What Does It Add to Freedom of Speech?, 26 Hastings L.J. 639 (1975); cf. Bezanson, The New Free Press Guarantee, 63 Va.L.Rev. 731 (1977).
4
The simplest explanation of the Speech and Press Clauses might be that the former protects oral communications; the latter, written. But the historical evidence does not strongly support this explanation. The first draft of what became the free expression provisions of the First Amendment, one proposed by Madison on June 8, 1789, as an addition to Art. 1, § 9, read:
"The people shall not be deprived or abridged of their right to speak, to write, or to publish their sentiments; and the freedom of the press, as one of the great bulwarks of liberty, shall be inviolable." 1 Annals of Cong. 434 (1789).
The language was changed to its current form, "freedom of speech, or of the press," by the Committee of Eleven to which Madison's amendments were referred. (There is no explanation for the change and the language was not altered thereafter.) It seems likely that the Committee shortened Madison's language preceding the semicolon in his draft to "freedom of speech" without
intending to diminish the scope of protection contemplated by Madison's phrase; in short, it was a stylistic change.
Cf. Kilbourn v. Thompson, 103 U.S. 168, 26 L.Ed. 377 (1881); Doe v. McMillan, 412 U.S. 306, 93 S.Ct. 2018, 36 L.Ed.2d 912 (1973) (Speech or Debate Clause extends to both spoken and written expressions within the legislative function).
5
It is not strange that "press," the word for what was then the sole means of broad dissemination of ideas and news, would be used to describe the freedom to communicate with a large, unseen audience.
Changes wrought by 20th century technology, of course, have rendered the printing press as it existed in 1791 as obsolete as Watt's copying or letter press. It is the core meaning of "press" as used in the constitutional text which must govern.
6
Near v. Minnesota ex rel. Olson, 283 U.S. 697, 51 S.Ct. 625, 75 L.Ed. 1357 (1931), which examined the meaning of freedom of the press, did not involve a traditional institutionalized newspaper but rather an occasional publication (nine issues) more nearly approximating the product of a pamphleteer than the traditional newspaper.
1
Library of Congress, Analysis of Federal and State Campaign Finance Laws—Summaries, prepared for Federal Election Commission (1977). Some 18 of these States prohibit or limit corporate contributions in respect to ballot questions. Reply Brief for Appellants 9-11, n.6.
2
See generally Leventhal, Courts and Political Thickets, 77 Colum.L.Rev. 345 (1977).
3
See T. Emerson, Toward a General Theory of the First Amendment 4-7 (1966); West Virginia Board of Educa ion v. Barnette, 319 U.S. 624, 63 S.Ct. 1178, 87 L.Ed. 1628 (1943).
4
Emerson, supra, at 5.
5
See United States v. CIO, 335 U.S. 106, 122-123, 68 S.Ct. 1349, 1357-1358, 92 L.Ed. 1849 (1948).
6
This distinguishes the regulation of corporate speech from the limitations upon individual political campaign expenditures invalidated in Buckley v. Valeo, 424 U.S. 1, 96 S.Ct. 612, 46 L.Ed.2d 659 (1976). The Court there struck down the limitations upon individual expenditures because they impermissibly restricted the right of individuals to speak their minds and make their views known. Id., at 48, 52, 96 S.Ct. at 648, 651. At the same time, however, the Court sustained limitations upon political contributions on the ground that such provisions entail a much lesser restriction upon the individual's ability to engage in free communication than expenditure restrictions. Id., at 20-23, 96 S.Ct. at 635-637. In the case of corporate political activities, we are not at all concerned with the self-expression of the communicator.
7
This is in contrast to the limitations upon individual campaign expenditures in Buckley v. Valeo, supra, which the Court viewed as heavily burdening the exchange of ideas between individuals and the forming of associations for that purpose. 424 U.S., at 19-20, 47-48, 96 S.Ct., at 634-635, 648-649.
8
In addition, newspapers and other forms of literature obviously do not lose their First Amendment protection simply because they are produced or distributed by corporations. It is, of course, impermissible to restrict any communication, corporate or otherwise, because of displeasure with its content. I need not decide whether newspapers have a First Amendment right to operate in a corporate form. It may be that for a State which generally permits businesses to operate as corporations to prohibit those engaged in the dissemination of information and opinion from taking advantage of the corporate form would constitute a departure from neutrality prohibited by the free press guarantee of the First Amendment. See Stewart, "Or of the Press," 26 Hastings L.J. 631 (1975); Bezanson, The New Free Press Guarantee, 63 Va.L.Rev. 731 (1977). There can be no doubt, however, that the First Amendment does not immunize media corporations any more than other types of corporations from restrictions upon electoral contributions and expenditures.
9
Buckley v. Valeo, 424 U.S., at 48-49, 54, 56-57, 96 S.Ct., at 648-649, 651, 652-653.
10
Congress long ago recognized that the ability to communicate ideas without cost could create an unfair political advantage. See 54 Cong.Rec. 2039-2041 (1917); Association of the Bar of the City of New York, Special Committee on the Federal Conflict of Interest Laws, Conflicts of Interest and Federal Service 54-55 (1960) (franking privilege denied by Congress to part-time employees ("dollar-a-year men") of the Bureau of Education).
11
California had the same experience in connection with a 1976 referendum measure which would have required legislative approval of nuclear generating plant sites. Two hundred and three corporations contributed approximately $2,530,000 in opposition to the amendment, which was defeated. Supporters of the measure collected altogether only approximately $1,600,000. California Fair Political Practices Comm'n, Campaign Contribution and Spending Report—June 8, 1976, Primary Election 289-298. Later in the same year a similar initiative measure was placed on the ballot in Montana. Corporations contributed approximately $144,000 in opposition to the measure, while its supporters were able to collect only $451. This measure was also defeated. Brief for State of Montana as Amicus Curiae 10.
12
This, of course, is an interest that was not present in Buckley v. Valeo, supra, and would not justify limitations upon the activities of associations, corporate or otherwise, formed for the express purpose of advancing a political or social cause.
13
The Court's additional suggestion that the aggrieved shareholder pursue judicial remedies to challenge corporate referenda disbursements, ante, at 795, is untenable in light of its holding precluding Massachusetts from defining the powers of corporations active within its borders so as to prohibit the expenditure of funds in connection with referenda campaigns not material to their business functions.
The Court also asserts that Massachusetts' interest in protecting dissenting shareholders is "belied" by its failure to prohibit corporate activity with respect to the passage or defeat of legislation or to include business trusts, real estate investment trusts, and labor unions in its prohibition upon electoral expenditures. Ante, at 792-793. It strongly implies that what it views as "underinclusiveness" weakens the consideration to which the interest asserted by Massachusetts is entitled by this Court. Such a
conclusion, however, is without justification. No basis whatsoever is offered by the Court for rejecting the conclusion reached by the court below in dismissing appellants' equal protection challenge that the state legislature could permissibly find on the basis of experience, which this Court lacks, that other activities and forms of association do not present problems of the same type or the same dimension. 371 Mass. 773, 794, 359 N.E.2d 1262, 1275 (1977). Indeed, the Court declines to consider appellants' equal protection challenge. Ante, at 774 n. 8.
The Court's further claim that "[t]he fact that a particular kind of ballot question has been singled out for special treatment undermines the likelihood of a genuine state interest in protecting shareholders [and] suggests instead that the legislature may have been concerned with silencing corporations on a particular subject," ante, at 793, ignores the fact that, as earlier acknowledged by the majority, ante, at 769-770 n. 3, the statutory provision stating that the personal income tax does not materially affect the business of corporations was enacted in response to prior judicial decisions construing the "materially affecting" requirement as not prohibiting corporate expenditures in connection with income tax referenda. To find evidence of hostility toward corporations on the basis of a decision of a legislature to clarify its intent following judicial rulings interpreting the scope of a statute is to elevate corporations to a level of deference which has not been seen at least since the days when substantive due process was regularly used to invalidate regulatory legislation thought to unfairly impinge upon established economic interests.
14
See Note, Corporate Political Affairs Programs, 70 Yale L.J. 821, 852-853 (1961), and cases therein cited.
15
See Rule 14a-8(c) of the Securities and Exchange Commission, 17 CFR § 240.14a-8(c) (1977); SEC v. Medical Committee for Human Rights, 404 U.S. 403, 92 S.Ct. 577, 30 L.Ed.2d 560 (1972).
16
See Pipefitters Local Union No. 562 v. United States, 407 U.S. 385, 413-414, 92 S.Ct. 2247, 2263-2264, 33 L.Ed.2d 11 (1972); United States v. International Union United Automobile Workers, 352 U.S. 567, 572-573, 77 S.Ct. 529, 531-532, 1 L.Ed.2d 563 (1957); United States v. CIO, 335 U.S., at 113, 115, 68 S.Ct., at 1353, 1354.
17
The exemption provided by the Massachusetts statute for contributions and expenditures in connection with any referendum question "materially affecting any of the property, business or assets of the corporation" affords any First Amendment protection to which corporate electoral communications may be entitled. See Mass. Gen. Laws Ann., ch. 55, § 8 (West Supp. 1977).
1
Our prior cases, mostly of recent vintage, have discussed the boundaries of protected speech without distinguishing between artificial and natural persons. See, e. g., Linmark Associates, Inc. v. Township of Willingboro, 431 U.S. 85, 97 S.Ct. 1614, 52 L.Ed.2d 155 (1977); Buckley v. Valeo, 424 U.S. 1, 96 S.Ct. 612, 46 L.Ed.2d 659 (1976). Nevertheless, the Court today affirms that the failure of those cases to draw distinctions between artificial and natural persons does not mean that no such distinctions may be drawn. The Court explicitly states that corporations may not enjoy all the political liberties of natural persons, although it fails to articulate the basis of its suggested distinction. Ante, at 777-778 n. 13.
2
Appellants Wyman-Gordon Co. and Digital Equipment Corp. are incorporated in Massachusetts. The Gillette Co. is incorporated in Delaware, but does business in Massachusetts. It is absolutely clear that a State may impose the same restrictions upon foreign corporations doing business within its borders as it imposes upon its own corporations. Northwestern Nat. Life Ins. Co., 203 U.S. 243, 254-255, 27 S.Ct. 126, 129, 51 L.Ed. 168 (1906).
Appellants First National Bank of Boston and New England Merchants National Bank are organized under the laws of the United States. In providing for the chartering of national banks, Congress has not purported to empower them to take part in the political activities of the States in which they do business. Indeed, it has explicitly forbidden them to make any "contribution or expenditure in connection with any election to any political office." 2 U.S.C. § 441b(a) (1976 ed.). Thus, there is no occasion to consider whether Congress would have the power to require the States to permit national banks to participate in political affairs. Cf. McCulloch v. Maryland, 4 Wheat. 316, 4 L.Ed. 579 at 14-15 (1819).
3
The Court concedes, ante, at 781, that, for this reason, this statute poses no threat to the ordinary operations of corporations in the communications business.
4
It does not necessarily follow that such a corporation would be entitled to all the rights of free expression enjoyed by natural persons Although a newspaper corporation must necessarily have the liberty to endorse a political candidate in its editorial columns, it need have no greater right than any other corporation to contribute money to that candidate's campaign. Such a right is no more "incidental to its very existence" than it is to any other business corporation.
5
However, where a State permits the organization of a corporation for explicitly political purposes, this Court has held that its rights of political expression, which are necessarily incidental to its purposes, are entitled to constitutional protection. NAACP v. Button, 371 U.S. 415, 428-429, 83 S.Ct. 328, 335-336, 9 L.Ed.2d 405 (1963). The fact that the author of that opinion, my Brother BRENNAN, has joined my Brother WHITE's dissent in this case strengthens my conclusion that nothing in Button requires that similar protection be extended to ordinary business corporations.
It should not escape notice that the rule established in Button was only an alternative holding, since the Court also ruled that the National Association for the Advancement of Colored People had standing to assert the personal rights of its members. Ibid., citing NAACP v. Alabama ex rel. Patterson, 357 U.S. 449, 458-460, 78 S.Ct. 1163, 1169-1171, 2 L.Ed.2d 1488 (1958). The holding, which has never been repeated, was directly contrary to an earlier decision of this Court holding that another political corporation, the American Civil Liberties Union, did not enjoy freedom of speech and assembly. Hague v. CIO, 307 U.S. 496, 514, 59 S.Ct. 954, 963, 83 L.Ed. 1423 (1939) (opinion of Roberts, J.); id., at 527, 59 S.Ct., at 969 (opinion of Stone, J.).
6
My Brother WHITE raises substantially these same arguments in his dissent, ante, at 809-810. However, his heavy emphasis on the need to protect minority shareholders at least suggests that "[t]he governmental interest in regulating corporate political communications," ante, at 809, might not prove sufficiently weighty in the absence of such concerns. Because of my conclusion that the Fourteenth Amendment does not require a State to endow a business corporation with the power of political speech, I do not find it necessary to join his assessment of the interests of the Commonwealth supporting this legislation.
The question of whether such restrictions are politically desirable is exclusively for decision by the political branches of the Federal Government and by the States, and may not be reviewed here. My Brother WHITE, in his dissenting opinion, puts the legislative determination in its most appealing light when he says, ibid.:
"[T]he interest of Massachusetts and the many other States which have restricted corporate political activity . . . is not one of equalizing the resources of opposing candidates or opposing positions, but rather of preventing institutions which have been permitted to amass wealth as a result of special advantages extended by the State for certain economic purposes from using that wealth to acquire an unfair advantage in the political process . . . ."
As I indicate in the text, supra I agree that this is a rational basis for sustaining the legislation here in question. But I cannot agree with my Brother WHITE's intimation that this is in fact the reason that the Massachusetts General Court enacted this legislation. If inquiry into legislative
motives were to determine the outcome of cases such as this, I think a very persuasive argument could be made that the General Court, desiring to impose a personal income tax but more than once defeated in that desire by the combination of the Commonwealth's referendum provision and corporate expenditures in opposition to such a tax, simply decided to muzzle corporations on this sort of issue so that it could succeed in its desire.
If one believes, as my Brother WHITE apparently does, see ante, at 806, that a function of the First Amendment is to protect the interchange of ideas, he cannot readily subscribe to the idea that, if the desire to muzzle corporations played a part in the enactment of this legislation, the General Court was simply engaged in deciding which First Amendment values to promote. Thomas Jefferson in his First Inaugural Address made the now familiar observation:
"If there be any among us who would wish to dissolve this Union or change its republican form, let them stand undisturbed as monuments of the safety with which error of opinion may be tolerated where reason is left free to combat it." J. Richardson, A Compilation of the Messages and Papers of the Presidents 310 (1897).
One may entertain a healthy skepticism as to whether the General Court left reason free to combat error by their legislation; and it most assuredly did not leave undisturbed corporations which opposed its proposed personal income tax as "monuments of the safety with which error of opinion may be tolerated." But I think the Supreme Judicial Court was correct in concluding that, whatever may have been the motive of the General Court, the law thus challenged did not violate the United States Constitution.
| 23
|
436 U.S. 1
98 S.Ct. 1554
56 L.Ed.2d 30
MEMPHIS LIGHT, GAS AND WATER DIVISION, et al., Petitioners,v.Willie S. CRAFT et al.
No. 76-39.
Argued Nov. 2, 1977.
Decided May 1, 1978.
Syllabus
Because of two separate sets of gas and electric meters in their newly purchased house, respondents, for about a year after moving in, received separate monthly bills for each set of meters from a municipal utility. During this period respondents' utility service was terminated five times for nonpayment of bills. Despite respondent wife's good-faith efforts to determine the cause of the "double billing," she was unable to obtain a satisfactory explanation or any suggestion for further recourse from the utility's employees. Each bill contained a "final notice" stating that payment was overdue and that service would be discontinued if payment was not made by a certain date but did not apprise respondents of the availability of a procedure for discussing their dispute with designated personnel who were authorized to review disputed bills and to correct any errors. Respondents brought a class action in Federal District Court under 42 U.S.C. § 1983, seeking declaratory and injunctive relief and damages against the utility and several of its officers and employees for terminations of utility service allegedly without due process of law. After refusing to certify the action as a class action, the District Court determined that respondents' claim of entitlement to continued utility service did not implicate a "property" interest protected by the Fourteenth Amendment, and that, in any event, the utility's termination procedures comported with due process. While affirming the District Court's refusal to certify a class action, the Court of Appeals held that the procedures accorded to respondents did not comport with due process. Held:
1. Although respondents as the only remaining plaintiffs apparently no longer desire a hearing to resolve a continuing dispute over their bills, the double-billing problem having been clarified during this litigation, and do not aver that there i a present threat of termination of service, their claim for actual and punitive damages arising from the terminations of service saves their cause from the bar of mootness. Pp. 7-9.
2. Under applicable Tennessee decisional law, which draws a line between utility bills that are the subject of a bona fide dispute and those that are not, a utility may not terminate service "at will" but only "for cause," and hence respondents assert a "legitimate claim of entitlement" within the protection of the Due Process Clause of the Fourteenth Amendment. Pp. 9-12.
3. Petitioners deprived respondents of an interest in property without due process of law. Pp. 12-22.
(a) Notice in a case of this kind does not comport with constitutional requirements when it does not advise the customer of the availability of an administrative procedure for protesting a threatened termination of utility services as unjustified, and since no such notice was given respondents, despite "good faith efforts" on their part, they were not accorded due notice. Pp. 13-15.
(b) Due process requires, at a minimum, the provision of an opportunity for presenting to designated personnel empowered to rectify error a customer's complaint that he is being overcharged or charged for services not rendered, and here such a procedure was not made available to respondents. The customer's interest in not having services terminated is self-evident, the risk of erroneous deprivation of services is not insubstantial, and the utility's interests are not incompatible with affording the notice and procedure described above. Mathews v. Eldridge, 424 U.S. 319, 96 S.Ct. 893, 47 L.Ed.2d 18. Pp. 16-19.
(c) The available common-law remedies of a pretermination injunction, a post-termination suit for damages, and a post-payment action for a refund do not suffice to cure the inadequacy in petitioner utility's procedures. The cessation of essential utility services for any appreciable time works a uniquely final deprivation, and judicial remedies are particularly unsuited to resolve factual disputes typically involving sums too small to justify engaging counsel or bringing a lawsuit. Pp. 19-22.
534 F.2d 684, affirmed.
Frierson M. Graves, Jr., Memphis, Tenn., for petitioners.
Thomas M. Daniel, Nashville, Tenn., for respondents.
Mr. Justice POWELL delivered the opinion of the Court.
1
This is an action brought under 42 U.S.C. § 1983 by homeowners in Memphis, Tenn., seeking declaratory and injunctive relief and damages against a municipal utility and several of its officers and employees for termination of utility service allegedly without due process of law. The District Court determined that respondents' claim of entitlement to continued utility service did not implicate a "property" interest protected by the Fourteenth Amendment, and that, in any event, the utility's termination procedures comported with due process. The Court of Appeals reversed in part. We granted certiorari to consider this constitutional question of importance in the operation of municipal utilities throughout the Nation.
2
* Memphis Light, Gas and Water Division (MLG&W)1 is a division of the city of Memphis which provides utility service. It is directed by a Board of Commissioners appointed by the City Council, and is subject to the ultimate control of the municipal government. As a municipal utility, MLG&W enjoys a statutory exemption from regulation by the state public service commission. Tenn.Code Ann. §§ 6-1306, 6-1317 (1971).
3
Willie S. and Mary Craft, respondents here,2 reside at 1019 Alaska Street in Memphis. When the Crafts moved into their residence in October 1972, they noticed that there were two separate gas and electric meters and only one water meter serving the premises. The residence had been used previously as a duplex. The Crafts assumed, on the basis of information from the seller, that the second set of meters was inoperative.
4
In 1973, the Crafts began receiving two bills: their regular bill, and a second bill with an account number in the name of Willie C. Craft, as opposed to Willie S. Craft. Separate monthly bills were received for each set of meters, with a city service fee3 appearing on each bill. In October 1973, after learning from a MLG&W meter reader that both sets of meters were running in their home, the Crafts hired a private plumber and electrical contractor to combine the meters into one gas and one electric meter. Because the contractor did not consolidate the meters properly, a condition of which the Crafts were not aware, they continued to receive two bills until January 1974. During this period, the Crafts' utility service was terminated five times for nonpayment.
5
On several occasions, Mrs. Craft missed work and went to the MLG&W offices in order to resolve the "double billing" problem. As found by the District Court, Mrs. Craft sought in good faith to determine the cause of the "double billing," but was unable to obtain a satisfactory explanation or any suggestion for further recourse from MLG&W employees. The court noted:
6
"On one occasion when Mrs. Craft was attempting to avert a utilities termination, after final notice, she called the defendant's offices and explained that she had paid a bill, but was given no satisfaction. The procedure for an opportunity to talk with management was not adequately explained to Mrs. Craft, although she repeatedly tried to get some explanation for the problems of two bills and possible duplicate charges." Pet. for Cert. 38-39.
7
In February 1974, the Crafts and other MLG&W customers filed this action in the District Court for the Western District of Tennessee. After trial, the District Court refused to certify the plaintiffs' class and rendered judgment for the defendants. Although the court apparently was of the view that plaintiffs had no property interest in continued utility service while a disputed bill remained unpaid, it nevertheless addressed the procedural due process issue. It acknowledged that respondents had not been given adequate notice of a procedure for discussing the disputed bills with management, but concluded that "[n]one of the individual plaintiffs [was] deprived of [a] due process opportunity to be heard, nor did the circumstances indicate any substantial deprivation except in the possible instance of Mr. and Mrs. Craft." Id., at 45.4 The court expressed "hope," "whether on the principles of [pendent] jurisdiction, or on the basis of a very limited possible denial of due process to Mr. and Mrs. Craft," that credit in the amount of $35 be issued to reimburse the Crafts for "duplicate and unnecessary charges made and expenses incurred by [them] with respect to terminations which should have been unnecessary had effectual relief been afforded them as requested." The court also recommended "that MLG&W in the future sen a certified or registered mail notice of termination at least four days prior to termination," and that such notice "provide more specific information about customer service locations and personnel available to work out extended payment plans or adjustments of accounts in genuine hardships or appropriate situations." Id., at 46-47.5
8
On appeal, the Court of Appeals for the Sixth Circuit affirmed the District Court's refusal to certify a class action, but held that the procedures accorded to the Crafts did not comport with due process. 534 F.2d 684 (1976).
9
On July 12, 1976, petitioners sought a writ of certiorari in this Court to determine (i) whether the termination policies of a municipal utility constitute "state action" under the Fourteenth Amendment; (ii) if so, whether a municipal utility's termination of service for nonpayment deprives a customer of "property" within the meaning of the Due Process Clause; and (iii) assuming "state action" and a "property" interest, whether MLG&W's procedures afforded due process of law in this case.6 On February 22, 1977, we granted certiorar . 429 U.S. 1090, 97 S.Ct. 1098, 51 L.Ed.2d 535. We now affirm.
II
10
There is, at the outset, a question of mootness. Although the parties have not addressed this question in their briefs, "they may not by stipulation invoke the judicial power of the United States in litigation which does not present an actual 'case or controversy,' Richardson v. Ramirez, 418 U.S. 24, 94 S.Ct. 2655, 41 L.Ed.2d 551 (1974) . . . ." Sosna v. Iowa, 419 U.S. 393, 398, 95 S.Ct. 553, 556, 42 L.Ed.2d 532 (1975).
11
As the case comes to us, the only remaining plaintiffs are respondents Willie S. and Mary Craft. Since the Court of Appeals affirmed the District Court's refusal to certify a class, the existence of a continuing "case or controversy" depends entirely on the claims of respondents. Cf. Sosna v. Iowa, supra, at 399, 402, 95 S.Ct., at 558. It appears that respondents no longer desire a hearing to resolve a continuing dispute over their bills, as the double-meter problem has been clarified during this litigation.7 Nor do respondents aver that there is a present threat of termination of service. "An injunction can issue only after the plaintiff has established that the conduct sought to be enjoined is illegal and that the defendant, if not enjoined, will engage in such conduct." United Transportation Union v. Michigan Bar, 401 U.S. 576, 584, 91 S.Ct. 1076, 1081, 28 L.Ed.2d 339 (1971). Respondents insist, however, that the case is not moot because they seek damages and declaratory relief, and because the dispute that occasioned this suit is "capable of repetition, yet evading review." Tr. of Oral Arg. 45-46.
12
We need not decide whether this case falls within the special rule developed in Southern Pacific Terminal Co. v. ICC, 219 U.S. 498, 31 S.Ct. 279, 55 L.Ed. 310 (1911); see Moore v. Ogilvie, 394 U.S. 814, 816, 89 S.Ct. 1493, 1494, 23 L.Ed.2d 1 (1969); Roe v. Wade, 410 U.S. 113, 125, 93 S.Ct. 705, 712, 35 L.Ed.2d 147 (1973), to permit consideration of questions which, by their very nature, are not likely to survive the course of a normal litigation. Respondents' claim for actual and punitive damages arising from MLG&W's terminations of service saves this cause from the bar of mootness. Cf. Powell v. McCormack, 395 U.S. 486, 496-500, 89 S.Ct. 1944, 1950-1952, 23 L.Ed.2d 491 (1969). Although we express no opinion as to the validity of respondents' claim for damages,8 that claim is not so insubstantial or so clearly foreclosed by prior decisions that this case may not proceed.
III
13
The Fourteenth Amendment places procedural constraints on the actions of government that work a deprivation of interests enjoying the st ture of "property" within the meaning of the Due Process Clause. Although the underlying substantive interest is created by "an independent source such as state law," federal constitutional law determines whether that interest rises to the level of a "legitimate claim of entitlement" protected by the Due Process Clause. Board of Regents v. Roth, 408 U.S. 564, 577, 92 S.Ct. 2701, 2709, 33 L.Ed.2d 548 (1972); Perry v. Sindermann, 408 U.S. 593, 602, 92 S.Ct. 2694, 2700, 33 L.Ed.2d 570 (1972).
14
The outcome of that inquiry is clear in this case. In defining a public utility's privilege to terminate for nonpayment of proper charges, Tennessee decisional law draws a line between utility bills that are the subject of a bona fide dispute and those that are not.
15
"A company supplying electricity to the public has a right to cut off service to a customer for nonpayment of a just service bill and the company may adopt a rule to that effect. Annot., 112 A.L.R. 237 (1938). An exception to the general rule exists when the customer has a bona fide dispute concerning the correctness of the bill. Steele v. Clinton Electric Light & Power Co., 123 Conn. 180, 193 A. 613, 615 (1937); Annot., 112 A.L.R. 237, 241 (1938); see also 43 Am.Jur., Public Utilities and Services, Sec. 65; Annot., 28 A.L.R. 475 (1924). If the public utility discontinues service for nonpayment of a disputed amount it does so at its peril and if the public utility was wrong (e. g., customer overcharged), it is liable for damages. Sims v. Alabama Water Co., 205 Ala. 378, 87 So. 688, 690, 28 A.L.R. 461 (1920)." Trigg v. Middle Tennessee Electric Membership Corp., 533 S.W.2d 730, 733 (Tenn.App.1975), cert. denied (Tenn.Sup.Ct. Mar. 15, 1976).9
16
The Trigg court also rejected the utility's argument that plaintiffs had agreed to be bound by the utility's rules and regulations, which required payment whether or not a bill is received. "A public utility should not be able to coerce a customer to pay a disputed claim." Ibid.10
17
State law does not permit a public utility to terminate service "at will." Cf. Bishop v. Wood, 426 U.S. 341, 345-347, 96 S.Ct. 2074, 2078-2079, 48 L.Ed.2d 684 (1976). MLG&W and other public utilities in Tennessee are obligated to provide service "to all of the inhabitants of the city of its location alike, without discrimination, and without denial, except for good and sufficient cause," Farmer v. Nashville, 127 Tenn. 509, 515, 156 S.W. 189, 190 (1913), and may not terminate service except "for nonpayment of a just service bill," Trigg, 533 S.W.2d, at 733. An aggrieved customer may be able to enjoin a wrongful threat to terminate, or to bring a subsequent action for damages or a refund. Ibid. The availability of such local-law remedies is evidence of the State's recognition of a protected interest. Although the customer's right to continued service is conditioned upon payment of the charges properly due, "[t]he Fourteenth Amendment's protection of 'property' . . . has never been interpreted to safeguard only the rights of undisputed ownership." Fuentes v. Shevin, 407 U.S. 67, 86, 92 S.Ct. 1983, 1997, 32 L.Ed.2d 556 (1972). Because petitioners may terminate service only "for cause,"11 respondents assert a "legitimate claim of entitlement" within the protection of the Due Process Clause.
IV
18
In determining what process is "due" in this case, the extent of our inquiry is shaped by the ruling of the Court of Appeals. We need go no further in deciding this case than to ascertain whether the Court of Appeals properly read the Due Process Clause to require (i) notice informing the customer not only of the possibility of termination but also of a procedure for challenging a disputed bill, 534 F.2d, at 688, and (ii) " '[an] established [procedure] for resolution of disputes' " or some specified avenue of relief for customers who "dispute the existence of the liability," id., at 689.12
19
* "An elementary and fundamental requirement of due process in any proceeding which is to be accorded finality is notice reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections." Mullane v. Central Hanover Trust Co., 339 U.S. 306, 314, 70 S.Ct. 652, 657, 94 L.Ed. 865 (1950) (citations omitted). The issue here is whether due process requires that a municipal utility notify the customer of the availability of an avenue of redress within the organization should he wish to contest a particular charge.
20
The "final notice" contained in MLG&W's bills simply stated that payment was overdue and that service would be discontinued if payment was not made by a certain date. As the Court of Appeals determined, "the MLG&W notice only warn[ed] the customer to pay or face termination." 534 F.2d, at 688-689. MLG&W also enclosed a "flyer" with the "final notice." One "flyer" was distributed to about 40% of the utility's customers, who resided in areas serviced by "credit counseling stations." It stated in part: "If you are having difficulty paying your utility bill, bring your bill to our neighborhood credit counselors for assistance. Your utility bills may be paid here also." No mention was made of a procedure for the disposition of a disputed claim. A different "flyer" went to customers in the remaining areas. It stated: "If you are having difficulty paying your utility bill and would like to discuss a utility payment plan, or if there is any dispute concerning the amount due, BRING YOUR BILL TO THE OFFICE AT . . ., OR PHONE . . . ." id., at 688 n. 4.
21
The Court of Appeals noted that "there is no assurance that the Crafts were mailed the just mentioned flyer," ibid., and implicitly affirmed the District Court's finding that Mrs. Craft was never apprised of the availability of a procedure for discussing her dispute "with management."13 The District Court's description of Mrs. Craft's repeated efforts to obtain information about what appeared to be unjustified double billing—"good faith efforts to pay for [the Crafts'] utilities as well as to straighten out the problem"—makes clear that she was not adequately notified of the procedures asserted to have been available at the time.14
22
Petitioners' notification procedure, while adequate to apprise the Crafts of the threat of termination of service, was not "reasonably calculated" to inform them of the availability of "an opportunity to present their objections" to their bills. Mullane v. Central Hanover Trust Co., supra, at 314, 70 S.Ct., at 657. The purpose of notice under the Due Process Clause is to apprise the affected individual of, and permit adequate preparation for, an impending "hearing."15 Notice in a case of this kind does not comport with constitutional requirements when it does not advise the customer of the availability of a procedure for protesting a proposed termination of utility service as unjustified. As no such notice was given respondents—despite "good faith efforts" on their part—they were deprived of the notice which was their due.16
B
23
This Court consistently has held that "some kind of hearing is required at some time before a person is finally deprived of his property interests." Wolff v. McDonnell, 418 U.S. 539, 557-558, 94 S.Ct. 2963, 2975, 41 L.Ed.2d 935 (1974). We agree with the Court of Appeals that due process requires the provision of an opportunity for the presentation to a designated employee of a customer's complaint that he is being overcharged or charged for services not rendered.17 Whether or not such a procedure may be available to other MLG&W customers, both courts below found that it was not made available to Mrs. Craft.18 Petitioners have not made the requisite showing for overturning these "concurrent findings of fact by two courts below . . . ." Graver Tank & Mfg. Co. v. Linde Air Products Co., 336 U.S. 271, 275, 69 S.Ct. 535, 538, 93 L.Ed. 672 (1949).19
24
Our decision in Mathews v. Eldridge, 424 U.S. 319, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976), provides a framework of analysis for determining the "specific dictates of due process" in this case.
25
"[O]ur prior decisions indicate 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 the administrative burdens that the additional or substitute procedural requirement would entail." Id., at 334-335, 96 S.Ct., at 903.
26
Under the balancing approach outlined in Mathews, some administrative procedure for entertaining customer complaints prior to termination is required to afford reasonable assurance against erroneous or arbitrary withholding of essential services. The customer's interest is self-evident. Utility service is a necessity of modern life; indeed, the discontinuance of water or heating for even short periods of time may threaten health and safety. And the risk of an erroneous deprivation, given the necessary reliance on computers,20 is not insubstantial.21
27
The utility's interests are not incompatible with affording the notice and procedure described above. Quite apart from its duty as a public service company, a utility—in its own business interests—may be expected to make all reasonable efforts to minimize billing errors and the resulting customer dissatisfaction and possible injury. Cf. Goss v. Lopez, 419 U.S. 565, 583, 95 S.Ct. 729, 740, 42 L.Ed.2d 729 (1975). Nor should "some kind of hearing" prove burdensome. The opportunity for a meeting with a responsible employee empowered to resolve the dispute could be afforded well in advance of the scheduled date of termination.22 And petitioners would retain the option to terminate service after affording this opportunity and concluding that the amount billed was justly due.
C
28
Petitioners contend that the available common-law remedies of a pretermination injunction, a post-termination suit for damages, and post-payment action for a refund are sufficient to cure any perceived inadequacy in MLG&W's procedures.23
29
Ordinarily, due process of law requires an opportunity for "some kind of hearing" prior to the deprivation of a significant property interest. See Boddie v. Connecticut, 401 U.S. 371, 379, 91 S.Ct. 780, 786, 28 L.Ed.2d 113 (1971). On occasion, this Court has recognized that where the potential length or severity of the deprivation does not indicate a likelihood of serious loss and where the procedures underlying the decision to act are sufficiently reliable to minimize the risk of erroneous determination, government may act without providing additional "advance procedural safeguards," Ingraham v. Wright, 430 U.S. 651, 680, 97 S.Ct. 1401, 1417, 51 L.Ed.2d 711 (1977); see Mathews v. Eldridge, supra, 424 U.S., at 339-349, 96 S.Ct., at 904-909.24
30
The factors that have justified exceptions to the requirement of some prior process are not present here. Although utility service may be restored ultimately, the cessation of essential services for any appreciable time works a uniquely final deprivation. Cf. Stanley v. Illinois, 405 U.S. 645, 647-648, 92 S.Ct. 1208, 1210-1211, 31 L.Ed.2d 551 (1972). Moreover, the probability of error in utility cutoff decisions is not so insubstantial as to warrant dispensing with all process prior to termination.25
31
The injunction remedy referred to by petitioners would not be an adequate substitute for a pretermination review of the disputed bill with a designated employee. Many of the Court's decisions in this area have required additional procedures to further due process, notwithstanding the apparent availability of injunctive relief or recovery provisions. It was thought that such remedies were likely to be too bounded by procedural constraints and too susceptible of delay to provide an effective safeguard against an erroneous deprivation.26 These considerations are applicable in the utility termination context.
32
Equitable remedies are particularly unsuited to the resolution of factual disputes typically involving sums of money too small to justify engaging counsel or bringing a lawsuit.27 An action in equity to halt an improper termination, because it is less likely to be pursued28 and less likely to be effective, even if pursued, will not provide the same assurance of accurate decisionmaking as would an adequate administrative procedure. In these circumstances, an informal administrative remedy, along the lines suggested above, constitutes the process that is "due."
V
33
Because of the failure to provide notice reasonably calculated to apprise respondents of the availability of an administrative procedure to consider their complaint of erroneous billing, and the failure to afford them an opportunity to present their complaint to a designated employee empowered to review disputed bills and rectify error, petitioners deprived respondents of an interest in property without due process of law.
The judgment of the Court of Appeals is
34
Affirmed.
35
Mr. Justice STEVENS, with whom THE CHIEF JUSTICE and Mr. Justice REHNQUIST join, dissenting.
36
In my judgment, the Court's holding confuses and trivializes the principle that the State may not deprive any person of life, liberty, or property without due process of law. I have no quarrel with the Court's conclusion that as a matter of Tennessee law a customer has a legitimate claim of entitlement to continued utility services as long as the undisputed portions of his utility bills are paid. For that reason, municipality may not terminate utility service without giving the customer a fair opportunity to avoid termination either by paying the bill or questioning its accuracy. I do not agree, however, that this record discloses any constitutional defect in the termination procedures employed by the Light, Gas and Water Division of the city of Memphis (Division).
37
The Court focuses on two aspects of the Division's collection procedures. First, according to the Court, the Division's standard form of termination notice did not adequately inform the customer of the availability of a procedure for protesting a proposed termination of service as unjustified. Ante, at 15. Second, the Division did not afford its customers an adequate opportunity to meet with an employee who had the authority to settle billing disputes. Ante, at 18. Whether we consider the evidence describing the unusual dispute between the Crafts and the Division, or the evidence concerning the general operation of the Division's collection procedures, I find no basis for concluding that either of the Court's criticisms is justified; its conclusion that a constitutional violation has been proved is truly extraordinary.
38
Although the details of the dispute between the Crafts and the Division are obscure, the record describes the Division's customary practices in some detail. Each month the Division terminates the service of about 2,000 customers.1 Terminations are preceded by a written notice advising the customer of the date by which payment must be made to avoid a cutoff and requesting the customer to contact the credit and collections department if he is having difficulty paying the bill.2 The notices contain a prominent legend:3
"PHONE 523-0711 INFORMATION CENTER"
39
Calls to the listed phone number are answered by 30 or 40 Division employees, all of whom are empowered to delay cutoffs for three days based on representations made by customers over the phone. These employees also direct callers to credit counselors who are authorized to resolve disputes on a more permanent basis and who can set up extended payment plans for customers in financial difficulty.4
40
The District Court did not find that the Division's notice was defective in any respect or that its regular practices were not adequate to handle the Crafts' unusual problems. The Crafts' dispute with the Division stemmed from the use of two sets of meters to measure utility consumption in different parts of the Crafts' home. Ante, at 4. The Crafts, believing they were being billed twice for the same utilities, did not pay on the second account. In fact, the two accounts were independent; because the Crafts refused to pay the balance on the second account, the Division terminated their service on several occasions.5 The District Court expressly found that the Division sent a final notice before each termination.
41
The District Court did not find that Mrs. Craft was unable to meet with credit department personnel possessing adequate authority to make an adjustment in her bill.6 She was successful in working out a deferred-payment arrangement but apparently was unable to have the amount of the bills reduced. The record therefore indicates that Mrs. Craft did meet with Division employees having adequate authority but simply failed to persuade any of them that there was any error in her bills.7
42
* The Court's constitutional objection to the Division's notice rests entirely on the classic statement from Mullane v. Central Hanover Trust Co., 339 U.S. 306, 314, 70 S.Ct. 652, 657, 94 L.Ed. 865:
43
"An elementary and fundamental requirement of due process in any proceeding which is to be accorded finality is notice reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections."
44
That statement identifies the two essential characteristics of adequate notice: It must inform the recipient of the impending loss; and it must be given in time to afford the recipient an opportunity to defend. These essentials must, of course, be expressed in terms which the layman can understand. The Division's notice unquestionably satisfied these two basic requirements.8
45
No doubt there may be situations in which these two essentials would not be sufficient to constitute fair notice. For example, if the notice describes a threatened loss which can only follow a prescheduled hearing, it must also inform the recipient of the time and place of the hearing. But I do not understand the Court to require municipal utilities to schedule a hearing before each termination notice is mailed. The Court seems to assume, as I do, that no hearing of any kind is necessary unless the customer has reason to believe he has been overcharged. Such a customer may protest his bill in either of two ways: He may communicate directly with the utility, or he may seek relief in court. In this case the Court finds the Division's notice constitutional y defective because it does not describe the former alternative.
46
The Division must "advise the customer of the availability of a procedure for protesting a proposed termination of utility service as unjustified." Ante, at 15. That advice is much less valuable to the customer than an explanation of the legal remedies that are available if a wrongful termination should occur. Yet the Court wisely avoids holding that the customer must be given that sort of legal advice. The advice the Court does require is wholly unnecessary in all but the most unusual situations. For a homeowner surely need not be told how to complain about an error in a utility bill; it is, of course, helpful to include the telephone number and office address in the termination notice, but our democratic government would cease to function if, as the Court seems to assume, our citizenry were unable to find such information on their own initiative. The Court's holding that the Division's notice was constitutionally defective rests on a paternalistic predicate that I cannot accept.
47
Even accepting the Court's predicate, a notice which advises customers to call the "information center" should be adequate; if not, it seems clear that advising customers to call, during normal business hours, a "dispute resolution center" manned by the same personnel would cure the constitutional objection. Distinctions of this small magnitude are the appropriate concern of administrative rulemaking; they are too trivial to identify constitutional error.
II
48
The Court's pronouncement "that due process requires the provision of an opportunity for the presentation to a designated employee of a customer's complaint that he is being overcharged or charged for services not rendered," ante, at 16, is equally divorced from the facts of this case. The Division processes more than 30,000 complaints of excess charges each year, and it has designated scores of employees to hear and investigate those complaints. Except for the Crafts' troubles, there is nothing in the record to suggest that the Division's customers are denied access to these employees, or that the employees lack the power to deal appropriately with meritorious complaints. Indeed, as already noted, there is no finding by either of the courts below that the Crafts themselves did not meet with responsible officials empowered to resolve their dispute.9
49
Although the Court's pronouncement in this case is therefore gratuitous, it cannot be dismissed as harmless. For it warns municipal utilities that unless they provide "some kind of hearing," ibid., they may be acting unconstitutionally. Just what, or why, additional procedural safeguards are constitutionally required is most difficult to discern.10
50
In deciding that more process is due, the Court relies on two quite different hypothetical considerations. First, the Court stresses the fact that disconnection of water or heating "may threaten health and safety." Ante, at 18. Second, the Court discounts the value of the protection afforded by the available judicial remedies because the "factual disputes typically [involve] sums of money too small to justify engaging counsel or bringing a lawsuit." Ante, at 21. Neither of these examples is disclosed by this record. The Crafts' dispute involved only a relatively small amount, but they did obtain counsel and thereafter they encountered no billing problems.
51
Although the Division's terminations number about 2,000 each month, the record does not reveal any actual case of harm to health or safety. The District Court found that the Division does not discontinue service when there is illness in a home. Since a customer can always avoid termination by the simple expedient of paying the disputed bill and claiming a refund,11 it is not surprising that the real emergency case is rare, if indeed it exists at all.12 When a true emergency does present a serious threat to health or safety, the customer will have ample motivation to take the important step of consulting counsel or filing suit even if the amount of his disputed bill is small. A potential loss of utility service sufficiently grievous to qualify as a constitutional deprivation can hardly be too petty to justify invoking the aid of counsel or the judiciary. Conversely, routine billing disputes too petty for the bench or the bar can hardly merit extraordinary constitutional protection.
52
Even if the customer does not consult counsel in a specific case, the potential damages remedy nevertheless provides far more significant protection against an unjustified termination than does the vague requirement of "some kind of hearing." Without the threat of damages liability for mistakes, the informal procedures required today would neither qualify the utility's ultimate power to enforce collection by terminating service nor deter the exercise of that power. On the other hand, even without specific informal procedures, the danger of substantial liability will by itself nsure careful attention to genuine customer disputes. The utility's potential liability therefore provides customers with real pretermination protection even though damages may not be recovered until later.
53
The need for a procedural innovation is not demonstrated by the record in this judicial proceeding, but rather is justified on the basis of hypothetical examples, information gleaned from cases not before us, and legislative reports. See ante, at 18 nn. 20 and 21. These justifications suggest that the Court's new rule is the product of a policy determination rather than a traditional construction of the Constitution. As judges we have experience in appraising the fairness of legal remedies and judicial proceedings, but we have no similar ability to balance the cost of scheduling thousands of billing conferences against the benefit of providing additional protection to the occasional customer who may be unable to forestall an unjustified termination.
54
It is an unfortunate fact that when the State assesses taxes or operates a utility, it occasionally overcharges the citizen. It is also unfortunate that effective collection procedures sometimes require the citizen to pay an unjust charge in order to forestall a serious deprivation of property. But if the State has given the citizen fair notice and afforded him procedural redress which is entirely adequate when invoked by his lawyer, the demands of the Due Process Clause are satisfied. I do not believe the Constitution requires the State to employ procedures that are so simple that every lay person can always act effectively without the assistance of counsel.
55
I respectfully dissent.
1
Although MLG&W is listed as one of the petitioners, the District Court dismissed the action as to the utility itself because "a municipality or governmental unit standing in that capacity is not a 'person' within the meaning" of § 1983. Pet. for Cert. 43. The Court of Appeals did not disturb that determination, and respondents have not sought review of the point in this Court. The individual, petitioners, who are sued in both their official and personal capacities, are the utility's president and general manager, vice president, members of the Board of Commissioners, and two employees who have had responsibility for terminating utility services. They will be referred to throughout as either "MLG&W" or "petitioners."
2
Of those who brought the original action, only the Crafts remain. The parties have not sought review in this Court of the rulings made below with respect to the other plaintiffs.
3
The city service fee is a separate item on the regular utility bill, as required by municipal ordinance.
4
The District Court's conclusion was advanced with little explanation, other than a reference to MLG&W's credit extension program. In an earlier discussion, the opinion offered a description of the utility's pro-
cedures. First, the court listed the steps involved in a termination: (i) Approximately four days after a meter reading date, a bill is mailed to the service location or other address designated by the customer. The last day to pay the net amount would be approximately 20 days after the meter reading date. (ii) Approximately 24 days after the meters are read, a "final notice" is mailed stating that services will be disconnected within four days if no payment is received or other provision for payment is made. (iii) Electric service is then terminated by the meter reader, unless the customer assures him that payment is in the mail, shows a paid receipt, or explains that nonpayment was due to illness. If there is no communication prior to termination, the meter reader or serviceman is instructed to leave a cutoff notice giving information about restoration of service. (iv) Approximately five days after the electric service cutoff, the remaining services are terminated if the customer has not paid the bill or made other arrangements for payment. Pet. for Cert. 34-35.
The court also noted that on or about March 1, 1973, MLG&W instituted an "extended payment plan." This generous program allows customers able to demonstrate financial hardship to pay only one-half of a past due bill with the balance to be paid in equal installments over the next three bills. The plaintiffs in this action were participants in the plan. Id., at 36.
Finally, the court observed that MLG&W provided a procedure for resolution of disputed bills:
"Credit counselors assist customers who have difficulty with payments or disputes concerning their bills with MLG&W. If those counselors cannot satisfy the customer, then the customer is referred to management personnel; generally the chief clerk in the department; then the supervisor in credit and collection. In addition, a dissatisfied customer may appeal to the Board of Commissioners of MLG&W as to complaints regarding bills, service, termination of service or any other matter relating to the operation of the Division. A customer may, if he so desires, be accompanied by an appropriate representative. The billing of customers, the determination as to when a final notice is sent, and the termination of service [are] governed by policies, rules and regulations adopted and approved by the Board of Commissioners of MLG&W." Id., at 36-37.
5
In its order filed on December 30, 1974, the court acknowledged that defendants had issued the recommended credit and "instituted some new procedures which will give more definitive and adequate notice to customers of possible or impending cut-off of services." Id., at 49. See n. 16, infra.
6
Petitioners have abandoned their contention that "state action" is not present in this case. Brief for Petitioners 44.
7
"Not until after the action was filed were the Crafts able to discover that they continued to receive double computer billings because MLG&W failed to combine the two accounts properly (A. 146-150), or that, as a result of the double computer billings, MLG&W had overcharged them for gas service and city service fees." Brief for Respondents 5.
8
The District Court found that "[o]f the balance claimed by MLG&W in March, 1974, some involved possible gas overcharges and double or duplicate billings with respect to city service fees." Pet. for Cert. 39. Presumably, respondents also seek recovery for the loss of pay occasioned by Mrs. Craft's several visits to the offices of MLG&W "which should have been unnecessary had effectual relief been afforded them as requested." Id., at 46.
While not urging mootness, petitioners assert that their compliance with the District Court's recommendation that a $35 credit be issued to the Crafts removes any claim for damages from this case. We do not understand the District Court's suggestion to have been an award of damages. The validity of the damages claim is a matter for initial determination by the courts below.
9
Tennessee's formulation of a public utility's privilege to terminate service for nonpayment of an undisputed charge is in accord with the common-law rule. See generally 64 Am.Jur.2d, Public Utilities §§ 63-64 (1972); Annot., 112 A.L.R. 237, 241 (1938); Note, The Duty of a Public Utility to Render Adequate Service: Its Scope and Enforcement, 62 Colum. L.Rev. 312, 326 (1962).
10
Petitioners attempt to avoid the force of Trigg by referring to several Tennessee decisions which state the general rule that a utility may terminate service for nonpayment of undisputed charges or noncompliance with reasonable rules and regulations. These authorities, however, do not cast doubt upon the exception recognized in Trigg for a customer who tenders the undisputed amount, but withholds complete payment because of a bona fide dispute. See Patterson v. Chattanooga, 192 Tenn. 267, 241 S.W.2d 291 (1951); Farmer v. City of Nashville, 127 Tenn. 509, 156 S.W. 189 (1913); Jones v. Nashville, 109 Tenn. 550, 72 S.W. 985 (1903); Crumley v. Watauga Water Co., 99 Tenn. 420, 41 S.W. 1058 (1897); Watauga Water Co. v. Wolfe, 99 Tenn. 429, 41 S.W. 1060 (1897).
Petitioners also rely on Lindsey v. Normet, 405 U.S. 56, 92 S.Ct. 862, 31 L.Ed.2d 36 (1972). There, the Court upheld an Oregon statute that required a tenant seeking a continuance of an eviction hearing to post security for accruing rent during the continuance, and limited the issues triable in an eviction proceeding to the questions of physical possession, forcible withholding, and legal right to possession. This reliance is misplaced. First, the Court merely held that the Oregon procedures comported with due process, without intimating that a tenant's claim to continued possession during a rent dispute failed to implicate a "property" interest. Second, "[t]he tenant did not have to post security in order to remain in possession before a hearing; rather, he had to post security only in order to obtain a continuance of the hearing. . . . [T]he tenant was not deprived of his possessory interest even for one day without opportunity for a hearing." Fuentes v. Shevin, 407 U.S. 67, 85 n. 15, 92 S.Ct. 1983, 1996, 32 L.Ed.2d 556 (1972) (emphasis in original).
11
In Arnett v. Kennedy, 416 U.S. 134, 94 S.Ct. 1633, 39 L.Ed.2d 15 (1974), "the Court concluded that because the employee could only be discharged for cause, he had a property interest which was entitled to constitutional protection." Bishop v. Wood, 426 U.S. 341, 345 n. 8, 96 S.Ct. 2074, 2078, 48 L.Ed.2d 684 (1976). See Arnett v. Kennedy, supra, 416 U.S., at 166, 94 S.Ct., at 1650 (Powell, J., concurring in part); cf. Board of Regents v. Roth, 408 U.S. 564, 578, 92 S.Ct. 2701, 2709, 33 L.Ed.2d 548 (1972).
12
The Court of Appeals did refer to its earlier decision in Palmer v. Columbia Gas of Ohio, Inc., 479 F.2d 153 (CA 6 1973), which approved a comprehensive remedy for a due process violation, including investigation of every communicated protest by a management official, provision of a hearing before such an official, and an opportunity to stay the termination upon the posting of an appropriate bond. Id., at 159-160, 168-169. These procedures were fashioned in response to findings, based on uncontradicted evidence, of hostility and arrogance on the part of the collection-oriented clerical employees, id., at 168. No such findings were made here, and the Court of Appeals' ruling did not purport to require a similar remedy in this case.
Respondents do request certain additional procedures: "an impartial decision maker," who may be a responsible company official; "the opportunity to present information and rebut the records presented"; and "a written decision," which apparently can be rendered after termination or payment. Tr. of Oral Arg. 28, 31; Brief for Respondents 31. As respondents have not cross-petitioned, cf. Strunk v. United States, 41 U.S. 434, 437, 93 S.Ct. 2260, 2262, 37 L.Ed.2d 56 (1973), we do not decide whether—or under what circumstances—any of these additional procedures may be appropriate. We do note that the magnitude of the numbers of complaints of overcharges would be a relevant factor in determining the appropriateness of more formal procedures than we approve in this case. The resolution of a disputed bill normally presents a limited factual issue susceptible of informal resolution.
13
We do not understand the District Court's reference to "an opportunity to talk with management" as implying necessarily that Mrs. Craft should have been given an opportunity to discuss her bills with corporate officers of MLG&W. Rather, the point was that Mrs. Craft was not informed of the opportunity to meet with designated personnel who were duly authorized to review disputed bills with complaining customers and to correct any errors.
14
Pet. for Cert. 39. William T. Mullen, secretary-treasurer of MLG&W, testified that the utility processed 33,000 "high bill" complaints in 1973. App. 130. He conceded, however, that no description of a dispute resolution process was ever distributed to the utility's customers, id., at 162-163, 176, and there is no indication in the record that a written account of such a procedure was accessible to customers who had complaints about their bills. Mrs. Craft's case reveals that the opportunity to invoke that procedure, if it existed at all, depended on the vagaries of "word of mouth referral," id., at 163.
15
See, e. g., Wolff v. McDonnell, 418 U.S. 539, 564, 94 S.Ct. 2963, 2978, 41 L.Ed.2d 935 (1974); Morrissey v. Brewer, 408 U.S. 471, 486-487, 92 S.Ct. 2593, 2602-2603, 33 L.Ed.2d 484 (1972); In re Gault, 387 U.S. 1, 33, 87 S.Ct. 1428, 1446, 18 L.Ed.2d 527 (1967); Anti-Fascist Committee v. McGrath, 341 U.S. 123, 171-172, 71 S.Ct. 624, 648-649, 95 L.Ed. 817 (1951) (Frankfurter, J., concurring).
The dissenting opinion of Mr. Justice STEVENS asserts that the Court's decision "trivializes" procedural due process. Post, at 22. While recognizing that other information would be "helpful," the dissent would hold that "a homeowner surely need not be told how to complain about an error in a utility bill . . . ." Post, at 26. In a different context a person threatened with the deprivation of a protected interest need not be told "how to complain." But the prior decisions of this Court make clear that "[d]ue process is flexible and calls for such procedural protections as the particular situation demands." Morrissey v. Brewer, supra, 408 U.S., at 481, 92 S.Ct., at 2600; Mathews v. Eldridge, 424 U.S. 319, 334, 96 S.Ct. 893, 902, 47 L.Ed.2d 18 (1976). In the particular circumstances of a threat to discontinue utility service, the homeowner should not be left in the plight described by the District Court in this case. Indeed, the dissent's view identifies the constitutional flaw in petitioners' notice procedure. The Crafts were told that unless the double bills were paid by a certain date their electricity would be cut off. But—as the Court of Appeals held—this
skeletal notice did not advise them of a procedure for challenging the disputed bills. Such notice may well have been adequate under different circumstances. Here, however, the notice is given to thousands of customers of various levels of education, experience, and resources. Lay consumers of electric service, the uninterrupted continuity of which is essential to health and safety, should be informed clearly of the availability of an opportunity to present their complaint. In essence, recipients of a cutoff notice should be told where, during which hours of the day, and before whom disputed bills appropriately may be considered. The dissent's restrictive view of the process due in the contest of this case would erect an artificial barrier between the notice and hearing components of the constitutional guarantee of due process.
16
Petitioners have moved to clarify and regularize their notice procedure, and it is possible that the revised notice presently afforded may be entirely adequate. Developed in response to a suggestion made by the District Court, it lists "methods of contact" and states in part that trained "Credit Counselors are available to clear up any questions, discuss disputed bills or to make any needed adjustments. There are supervisors and other management personnel available if you are not satisfied with the answers or solutions given by the Credit Counselors." App. 193.
We also note that Tennessee law requires that the board of supervisors of each independent utility district, as opposed to a utility division of a municipality, "maintain a set of rules and regulations regarding the adjustme t of all complaints which may be made to the district concerning . . . the adjustment of bills," and that such rules "be posted or otherwise available for convenient inspection by customers and members of the public in the offices of the district . . . ." Tenn.Code Ann. § 6-2618(b) (Supp.1977).
17
"[A] hearing in its very essence, demands that he who is entitled to it shall have the right to support his allegations by argument however brief, and, if need be, by proof, however informal." Londoner v. Denver, 210 U.S. 373, 386, 28 S.Ct. 708, 714, 52 L.Ed. 1103 (1908). The opportunity for informal consultation with designated personnel empowered to correct a mistaken determination constitutes a "due process hearing" in appropriate circumstances. See, e. g., Goss v. Lopez, 419 U.S. 565, 581-584, 95 S.Ct. 729, 739-741, 42 L.Ed.2d 725 (1975). See generally Friendly, "Some Kind of Hearing," 123 U.Pa.L.Rev. 1267 (1975).
18
In Goss v. Lopez, supra, at 568 n. 2, and 583, 95 S.Ct., at 733, and 740, the Court noted that an informal disciplinary procedure obtaining at the particular high school "was not followed in this case."
19
The dissent advances its own reading of the record in this case, but offers no justification for sidestepping the determinations made below. There is no dispute that the District Court found "that the procedure for an opportunity to talk with management was not adequately explained to Mrs. Craft." See post, at 24 n. 6. The trial court also expressed a measure of disquietude over the treatment accorded Mrs. Craft when it sug-
gested a credit to reimburse respondents for "duplicate and unnecessary charges made and expenses incurred by [them] with respect to terminations which should have been unnecessary had effectual relief been afforded them as requested." The Court of Appeals was even more explicit in its criticism of MLG&W's procedures. The very notices relied upon by the dissent, post, at 23, were found inadequate: "[T]he MLG&W notice fails to mention 'that a dispute concerning the amount due might be resolved through discussion with representatives of the company,' " 534 F.2d 684, 688 (1976), and "only warns the customer to pay or face termination." Id., at 688-689, and n. 4. And that the Court of Appeals found an absence of a constitutional hearing is the only sound way to read its statement that the utility "provides no avenue for customers who . . . dispute the existence of the liability (Crafts)." Id., at 689.
These findings are not undermined, as the dissent suggests, by Mrs. Craft's ability ultimately to glean some understanding of her billing problem after several, time-consuming trips to MLG&W's office—in the District Court's words, after "she repeatedly tried to get some explanation for the problems of two bills and possible duplicate charges." Nor are they placed in question by the fact that an employee of uncertain authority told Mrs. Craft, apparently without explanation or attempt at investigation, "[w]ell, you have to pay on the other" bill. App. 91. Fundamental airness, not simply considerations of "courteous" treatment of customers, post, at 25 n. 7, informs the constitutional requirement of notice and the actual provision of a timely opportunity to meet with designated personnel who are duly authorized to review disputed bills and to correct any errors.
20
In recent years Congress has been concerned by the problems of computer error. See, e. g., S.Rep. No. 93-278, p. 5 (1973) (billing errors in consumer credit transactions); Senate Committee on Government Operations, Problems Associated with Computer Technology in Federal Programs and Private Industry: Computer Abuses, 94th Cong., 2d Sess. (Comm.Print 1976).
21
See, e. g., Palmer v. Columbia Gas of Ohio, Inc., 479 F.2d, at 158; Davis v. Weir, 497 F.2d 139, 142 (CA5 1974); Bronson v. Consolidated Edison Co. of New York, 350 F.Supp. 443, 448 n. 11 (SDNY 1972) (16% of the complaints investigated by New York Public Service Commission resulted in adjustments in favor of the customer).
22
Because petitioners provide for at least a 30-day period between the mailing of the bill and the actual termination of service, Brief for Petitioners 28, it is unlikely that the informal procedure required in this case will occasion material delay in payment. The public utility enjoys a broad discretion in the scheduling and structuring of this "hearing," provided that the customer is afforded adequate time for effective presentation of his complaint prior to termination.
23
This contention was advanced only obliquely i the Court of Appeals. Brief for Appellees in No. 75-1350(CA6), p. 27.
24
In Ingraham, the Court held that "advance procedural safeguards" were not constitutionally required in the context of disciplinary paddling in the schools because the ability of the teacher to observe directly the infraction in question, the openness of the school environment, the visibility of the confrontation to other students and faculty, and the likelihood of parental reaction to unreasonable punishment, gave assurance that "the risk that a child will be paddled without cause is typically insignificant." 430 U.S., at 677-678, 97 S.Ct., at 1416. Similarly, in Dixon v. Love, 431 U.S. 105, 113, 97 S.Ct. 1723, 1728, 52 L.Ed.2d 172 (1977), we held that an evidentiary hearing need not precede revocation of a driver's license based on repeated traffic offenses within the previous 10-year period, for "appellee had the opportunity for a full judicial hearing in connection with each of the traffic convictions on which the . . . decision was based."
25
Petitioners assert that they are under an obligation to provide nondiscriminatory service to their customers, and that continued provision of service to a delinquent customer pending an informal hearing would involve "discriminating against the ratepayer . . . ." Tr. of Oral Arg. 5.
It is far from clear that any material delay in payment will occur from an informal conference that can be scheduled well in advance of the date of termination, see n. 22, supra. In any event, as is demonstrated by MLG&W's credit plan, see n. 4, supra, delayed payment is not nonpayment, and there are means available to MLG&W to recover at least some of the costs of a hearing, see, e. g., App. 114, 117 (imposition of gross, rather than net, charges for late payment).
26
See, E. g., Goss v. Lopez, 419 U.S., at 581-582 n. 10, 95 S.Ct. at 739-740; North Georgia Finishing, Inc. v. Di-Chem, Inc., 419 U.S. 601, 603, 607, 95 S.Ct. 719, 721, 722, 42 L.Ed.2d 751 (1975); Fuentes v. Shevin, 407 U.S., at 85, and n. 15, 92 S.Ct. at 1996, and n. 15; Sniadach v. Family Finance Corp., 395 U.S. 337, 343, 89 S.Ct. 1820, 1823, 23 L.Ed.2d 249 (1969) (Harlan, J., concurring); Bell v. Burson, 402 U.S. 535, 536, 91 S.Ct. 1586, 1587, 29 L.Ed.2d 90 (1971).
The dissent intimates that due process was satisfied in this case because "a customer can always avoid termination by the simple expedient of paying the disputed bill and claiming a refund . . . ." Post, at 28. This point ignores the predicament confronting many individuals who lack the means to pay additional, unanticipated utility expenses. Even under MLG&W's admirable credit procedures, the customer must make immediate payment of one-half of a disputed past due bill, with the balance to be paid in three equal installments, in addition to current charges. Contrary to the dissent's suggestion, this Court's decision in Lindsey v. Normet, 405 U.S. 56, 92 S.Ct. 862, 31 L.Ed.2d 36 (1972), did not uphold a procedure that conditioned a tenant's continued possession on payment of "the back rent, an obligation which he disputed." Post, at 29 n. 11. Under the procedure upheld in Lindsey, certain tenant defenses were excluded, but the landlord still had to prove nonpayment of rent due or a holding contrary to some covenant in the lease before the tenant could be deprived of possession. See 405 U.S., at 65; n. 10, 92 S.Ct., at 869, supra.
27
This understanding informs the common-law privilege of the utility to terminate service for nonpayment of just charges. "An obvious reason [for the privilege] is that to limit the remedy of collection of compensation for the service to actions at law would be impracticable, as leading to an infinite number of actions to collect very small bills against scattered consumers, many of them mere renters and financially irresponsible." Steele v. Clinton Electric Light & Power Co., 123 Conn. 180, 184, 193 A. 613, 615 (1937); see Jones v. Nashville, 109 Tenn., at 560, 72 S.W., at 987.
28
As early as 1874, the Wisconsin Supreme Court held that the State Attorney General could obtain an injunction against a public utility threatening a wrongful termination because private persons would be unlikely to take action themselves to correct "the little wrongs which go so far to make up the measure of average prosperity of life." Attorney General v. Chicago & N. W. R. Co., 35 Wis. 425, 530-531.
1
During the six months from September 1973 through February 1974, there were 11,216 so-called delinquent cutoffs. App. 74.
2
The request to contact the credit department is contained in an enclosed "flyer" which also identifies the appropriate neighborhood location to be visited for credit assistance.
3
See 534 F.2d 684, 688 (CA6 1976).
4
App. 126 and 161. Information center employees may also refer customers who complain about a high bill to a special unit that sends investigators to check for possible leaks or defects in the meter. Id., at 178.
5
The trial judge evidently accepted the Division's claim that it was engaged in "split billing" rather than "double billing." The judge did express the "hope," as a matter of "simple equity," that the Division would issue a credit of $35 to cover duplicate and unnecessary charges and expenses incurred with respect to termination, but the amounts challenged by the Crafts as the result of "double billing" were considerably larger than $35. The reference to duplicate charges apparently concerns the $2. 0 per month city service fee which was charged on each set of meters in the duplex until after they were consolidated. The unnecessary expense reference apparently covers both the time lost from work while Mrs. Craft was trying to straighten out their billing and the cost attributable to the termination. The District Court appears to have been persuaded that those costs could have been avoided if the Crafts had been given more help in the early stages of their dispute.
6
The District Court stated that the "procedure for an opportunity to talk with the management was not adequately explained to Mrs. Craft." The District Court was evaluating the Division's explanation of its procedures; the court's statement does not mean that Mrs. Craft never met with a responsible official able to resolve her dispute.
7
It is worth remembering that the Crafts' double-billing problem was eventually solved, and that the solution could only have been effected by a Division employee empowered to do so. Moreover, Mrs. Craft testified on direct examination that after being cut off she went to the Division's office with the record of her payments on one account. She was told that she had to pay on the other account as well. Id., at 91. In other words, an official of the Division did resolve the Crafts' dispute, correctly as it turned out. See n. 5, supra. The Division's procedures would not be unconstitutional even if we assumed that Division employees, like federal judges, are occasionally discourteous and occasionally make mistakes. The Due Process Clause does not guarantee a correct or a courteous resolution of every dispute.
8
It tells the customer that a cutoff is imminent and it allows the customer enough time to avoid a cutoff by paying under protest, by contacting the information center, or by beginning a legal action.
9
See nn. 6 and 7, supra.
10
A careful reading of the decision below and this Court's decision indicates that the Court has modified as well as affirmed the Sixth Circuit's view of procedural due process in a utility context. The Court of Appeals thought that this case was controlled by its earlier decision in Palmer v. Columbia Gas of Ohio, Inc., 479 F.2d 153 (1973). Palmer ordered that cutoff notices be delivered personally by utility servicemen or sent by certified mail, return receipt requested. Id., at 159 and 166-167. The notice had to tell customers about available credit programs as well as possible dispute-resolving procedures. Ibid. The Palmer court also specified that the utility's hearing officer had to send—by certified mail—a written, individual response to every complaining customer before authorizing a cutoff. Id., at 159-160, n. 9, and 167-169. Although the Division's failure to observe these procedures was the foundation of the Court of Appeals' ruling below, the Court quite clearly does not approve the lower court's view that these procedures are constitutionally mandated.
11
If there is no constitutional objection to requiring a tenant to pay a disputed charge in order to retain possession of his home, I do not understand why there should be a more serious objection to requiring payment of a lesser charge in order to retain utility service. In Lindsey v. Normet, 405 U.S. 56, 92 S.Ct. 862, 31 L.Ed.2d 36, a tenant sought to defend a possessory action brought by his landlord for nonpayment of rent on the ground that the premises were uninhabitable and therefore there was no obligation to pay the rent. State law did not permit such a defense in a possessory action. In order to litigate that particular dispute, the tenant had to bring his own action against the landlord. If the tenant had not in fact paid the disputed rent, the landlord would prevail in the possessory action. Thus, in order to retain possession while litigating the dispute, the tenant not only had to pay the accruing rent (a requirement upheld in Lindsey, supra, at 65, 92 S.Ct., at 869), but also had to pay the back rent, an obligation which he disputed. If he did not pay the back rent, he would lose in the possessory action and therefore would lose possession while he was prosecuting his own suit against the landlord. Thus, the Court sustained a procedure which required the payment of a disputed charge in order to maintain the status quo while litigating the dispute.
12
Even the customer who is unable to pay his bill in full may forestall termination by a partial payment. Ante, at 5-6 n. 4. Perhaps this Court fashions its rule for the benefit of those customers who are unable to make even a partial payment. But if such persons cannot pay current, undisputed bills, their service may be terminated despite a bona fide dispute over a past bill; for no one has a constitutional right to free utility service.
| 34
|
436 U.S. 31
98 S.Ct. 1873
56 L.Ed.2d 53
UNITED STATES, petitioner,v.Estelle JACOBS aka "Mrs. Kramer." No.76-1193. Supreme Court of the United States May 1, 1978 On Writ of Certiorari to the United States Court of Appeals for the Second Circuit. PER CURIAM. The writ of certiorari is dismissed as improvidently granted. U.S. v. California [98SCt1662,436US32,56LEd2d94] 98 S.Ct. 1662 436 U.S. 32 56 L.Ed.2d 94 UNITED STATES, Plaintiff, v. State of CALIFORNIA.
No. 5, Orig.
Argued Feb. 27, 1978.
Decided May 15, 1978.
Syllabus
California, and not the United States, has dominion over the submerged lands and waters within the one-mile belts surrounding Santa Barbara and Anacapa Islands within the Channel Islands National Monument. When, by Presidential Proclamation in 1949, the Monument was enlarged to encompass areas within one nautical mile of the shorelines of these islands, the submerged lands and waters within the one-mile belts were under federal dominion as a result of this Court's decision two years earlier in United States v. California, 332 U.S. 19, 67 S.Ct. 1658, 91 L.Ed. 1889. But, assuming that the Proclamation intended to reserve such submerged lands and waters, dominion over them was subsequently transferred to California by the Submerged Lands Act, whose very purpose was to undo that decision. The § 5(a) "claim of right" exemption from the Act's broad grant, relied on by the Government, clearly does not apply to claims based on the 1947 California decision. The reservation for a national monument made by the 1949 Proclamation could not enhance the Government's claim to the submerged lands and waters in dispute since the statutory authority under which such monuments are created merely authorizes land to be shifted from one federal use to another. Pp. 36-41.
Allan A. Ryan, Jr., Dept. of Justice, Washington, D. C., for plaintiff.
Russell Iungerich, Los Angeles, Cal., for defendant.
Mr. Justice STEWART delivered the opinion of the Court.
1
The question in this case, arising under our original jurisdiction, is whether California or the United States has dominion over the submerged lands and waters within the Channel Islands National Monument, which is situated within the three-mile marginal sea off the southern California mainland.1 For the reasons that follow, we hold that dominion lies with California and not the United States.
2
The Antiquities Act of 1906 authorizes the President to reserve lands "owned or controlled by the Government of the United States" for use as national monuments.2 Pursuant to this Act, President Franklin Roosevelt in 1938 issued Presidential Proclamation No. 2281, 52 Stat. 1541. This Proclamation "reserved from all forms of appropriation under the public-land laws" most of Anacapa and Santa Barbara Islands, which were then federal lands,3 and set them aside as the Channel Islands National Monument.4 As the Proclamation recognized, these islands "contain fossils of Pleistocene elephants and ancient trees, and furnish noteworthy examples of ancient volcanism, deposition, and active sea erosion . . . ." Ibid.
3
The two large islands and the many smaller islets and rocks surrounding them also shelter a variety of marine life, some rare or endangered. Prompted by a desire to protect these species5 and other "objects of geological and scientific interest," President Truman issued a Proclamation in 1949 enlarging the Monument to encompass "the areas within one nautical mile of the shoreline of Anacapa and Santa Barbara Islands . . . ." Presidential Proclamation No. 2825, 63 Stat. 1258. It is undisputed that the islets and protruding rocks within these one-mile belts have long belonged to the United States and, as a result of President Truman's Proclamation, are now part of the Monument.6 It is equally clear that the tidelands of Anacapa and Santa Barbara Islands, as well as of the islets and rocks, belong to California.7 What is disputed in this litigation is dominion over the submerged lands and waters within the one-mile belts surrounding Anacapa and Santa Barbara Islands.8
4
When President Truman issued Proclamation No. 2825 in 1949, the submerged lands and waters within these belts were under federal dominion and control, as a result of this Court's decision two years earlier in United States v. California, 332 U.S. 19, 67 S.Ct. 1658, 91 L.Ed. 1889. That case had held that the United States was "possessed of paramount rights in, and full dominion and power over, the lands, minerals and other things underlying the Pacific Ocean lying seaward of the ordinary low-water mark on the coast of California, and outside of the inland waters, extending seaward three nautical miles . . . ." United States v. California, 332 U.S. 804, 805, 68 S.Ct. 20, 21, 92 L.Ed. 382.
5
There can be no serious question, therefore, that the President in 1949 had power under the Antiquities Act to reserve the submerged lands and waters within the one-mile belts as a national monument, since they were then "controlled by the Government of the United States."9 Thus, whether Proclamation No. 2825 did in fact reserve these submerged lands and waters, or only the islets and protruding rocks, could be, at the time of the Proclamation, a question only of Presidential intent, not of Presidential power.
6
In addressing the controversy now before us, the parties have devoted large parts of their briefs to canvassing this question of intent: What did the Proclamation mean by the use of the word "areas"?10 We find it unnecessary, however, to decide this question. For even assuming that President Truman intended to reserve the submerged lands and waters within the one-mile belts for Monument purposes, we have concluded that the Submerged Lands Act, 67 Stat. 29, 43 U.S.C. § 1301 et seq., subsequently transferred dominion over them to California.
7
The very purpose of the Submerged Lands Act was to undo the effect of this Court's 1947 decision in United States v. California, 332 U.S. 19, 67 S.Ct. 1658, 91 L.Ed. 1889. In enacting it, Congress "recognized, confirmed, established, and vested in and assigned to," § 6(a), 67 Stat. 32, 43 U.S.C. § 1314(a), the States "(1) title to and ownership of the lands beneath navigable waters within the boundaries of the respective States, and the natural resources within such lands and waters, and (2) the right and power to manage, administer, lease, develop, and use the said lands and natural resources . . . ." § 3(a), 67 Stat. 30, 43 U.S.C. § 1311(a). The submerged lands and waters within one mile of Anacapa and Santa Barbara Islands plainly fall within this general grant.11
8
The United States contends, however, that the Submerged Lands Act did not operate to relinquish these submerged lands and waters to California because of an exception to the broad statutory grant that Congress provided in § 5(a) of the Act.12 The final clause of § 5(a), upon which the United States relies, exempted from the grant "any rights the United States has in lands presently and actually occupied by the United States under claim of right."13 The legislative history shows that this "claim of right" clause was added to preserve unperfected claims of federal title from extinction under § 3's general "conveyance or quitclaim or assignment."14 In the words of the Acting Chairman of the Senate Committee on Interior and Insular Affairs, the clause "neither validates the claim nor prejudices it," but merely "leaves it where we found it" for eventual adjudication.15
9
The entire purpose of the Submerged Lands Act would have been nullified, however, if the "claim of right" exemption saved claims of the United States based solely upon this Court's 1947 decision in United States v. California. Not surprisingly, therefore, the legislative history unmistakably shows that the "claim of right" must be "other than the claim arising by virtue of the decision in [that case] . . . ."16 Thus, this exception applies to the submerged lands and waters in controversy here only if the United States' claim to them ultimately rests on some basis other than the "paramount rights" doctrine of this Court's 1947 California decision.
10
The United States has pointed to no other basis for believing that the submerged lands and waters in question were owned or controlled by the United States in 1949. The crucial question, then, is whether the 1949 reservation of the submerged lands and waters for Monument purposes (assuming that was the intent of the Proclamation) somehow changed the nature of the Government's claim. If it did not—if the ownership or control of these areas by the United States in 1953 existed solely by virtue of this Court's 1947 decision in United States v. California —then § 3(a) of the Submerged Lands Act transferred "title to and ownership of" the submerged lands and waters to California, along with "the right and power to manage, administer, lease, develop, and use" them. 67 Stat. 30, 43 U.S.C. § 1311(a).
11
We have concluded that the 1949 Proclamation did not and could not enhance the str ngth of the Government's basic claim to a property interest in the submerged lands and waters in controversy. Reservation of federally controlled public lands for national monument purposes has the effect of placing the area reserved under the "supervision, management, and control" of the Director of the National Park Service. 39 Stat. 535, 16 U.S.C. §§ 1-3 (1976 ed.). Without such reservation, the federal lands would remain subject to "private appropriation and disposal under the public land laws," 78 Stat. 985, 43 U.S.C. § 1400(c), or to continued federal management for other designated purposes, see, e. g., ibid.; 78 Stat. 986, 43 U.S.C. § 1411. The Antiquities Act of 1906 permits the President, "in his discretion," to create a national monument and reserve land for its use simply by issuing a proclamation with respect to land "owned or controlled by the Government of the United States." 34 Stat. 225, 16 U.S.C. § 431 (1976 ed.). A reservation under the Antiquities Act thus means no more than that the land is shifted from one federal use, and perhaps from one federal managing agency, to another.17 A reservation for a national monument purpose cannot operate to escalate the underlying claim of the United States to the land in question.
12
Congress was well aware of its power to transfer to the States as much or as little of the submerged lands in which the Government held "paramount rights" as it deemed wise. With that knowledge, Congress expressly "emphasize[d] that the exceptions spelled out in [§ 5] do not in anywise include any claim resting solely upon the doctrine of 'paramount rights' enunciated by the Supreme Court with respect to the Federal Government's status in the areas beyond inland waters and mean low tide." S.Rep.No.133, 83d Cong., 1st Sess., pt. 1, p. 20 (1953). A plainer statement of congressional intent would be hard to find.
13
Because the United States' claim to the submerged lands and waters within one mile of Anacapa and Santa Barbara Islands derives solely from the doctrine of "paramount rights" announced in this Court's 1947 California decision, we hold that, by operation of the Submerged Lands Act, the Government's proprietary and administrative interests in these areas passed to the State of California in 1953.18
14
The parties are requested to submit an appropriate decree within 90 days.
15
So ordered.
16
Mr. Justice MARSHALL took no part in the consideration or decision of the case.
17
Mr. Justice WHITE, with whom The Chief Justice and Mr. Justice BLACKMUN join, dissenting.
18
Although the majority lucidly states the issue in this case, it plainly errs in deciding it.
19
Section 5(a) of the Submerged Lands Act excepted from its general cession of land to the States those "rights the United States has in lands presently and actually occupied by the United States under claim of right."1 Actual title to the lands was not req ired; lands to which the United States held title were already excepted by the previous language in § 5(a). The reference to claims of right was critical for the United States' stake in submerged lands, since United States v. California, 332 U.S. 19, 67 S.Ct. 1658, 91 L.Ed. 1889 (1947), and 332 U.S. 804, 68 S.Ct. 20, 92 L.Ed. 382 (1947), did not actually vest the United States with title to the submerged lands. While specifically denying California title, the Court fell short of declaring title in the United States, recognizing instead the federal "paramount rights" in the lands. Id., at 805, 68 S.Ct., at 20.
20
Section 5(a) was added at the suggestion of the Attorney General. His purpose was to guarantee "that all installations and acquisitions of the Federal Government within such area [as was to be ceded] belonged to it."2 Senator Holland's original Joint Resolution No. 13 had provided:
21
"There is excepted from the operation of section 3 of this Act—
22
"(a) all specifically described tracts or parcels of land and resources therein or provements thereon title to which has been lawfully and expressly acquired by the United States from any State or from any person in whom title had vested under the decisions of the courts of such State, or their respective grantees, or successors in interest, by cession, grant, quitclaim, or condemnation or from any other owner or owners thereof by conveyance or by condemnation, provided such owner or owners had lawfully acquired the title to such lands and resources in accordance with the statutes or decisions of the courts of the State in which the lands are located . . . ." Hearings 14.
23
The Attorney General's substitute read as follows:
24
"There is excepted from the operation of section 3 of this Joint Resolution:
25
"(a) all tracts or parcels of land together with all accretions thereto, resources therein, or improvements thereon, title to which has been lawfully and expressly acquired by the United States from any State or from any person in whom title had vested under the law of the State or of the United States, and all lands which the United States lawfully holds under the law of the State; all lands expressly retained by the United States when the State entered the Union; all lands acquired by the United States by eminent domain proceedings; all lands filled in, built up, or otherwise reclaimed by the United States for its own use; and all lands presently occupied by the United States under claim of right . . . ." Id., at 935.
26
The clearest, most observable difference between the original draft and the language proposed by the Attorney General is this final statement about "lands presently occupied by the United States under claim of right."3 The conclusion is that some lands to which the United States did not possess outright title might be part of federal installations, and, if so, they were to be preserved in federal control. This inference is strongly supported in further legislative history.
27
The Acting Chairman of the Senate Committee on Interior and Insular Affairs explained to the Joint Resolution's author why the Committee had added the phrase concerning claim of right:
28
"I should like to add that the last language quoted, namely, 'any rights the United States has in lands presently and actually occupied by the United States under claim of right,' came into the bill at the request of the Department of Justice. It was pr sented to the committee and explained by the Department of Justice as being for the purpose of reserving to the Federal Government the area of any installation, or part of an installation—and I use the term 'installation' to distinguish a specific area, used for a specific purpose, from any vast area that might be claimed under the paramount right doctrine—actually occupied by the Government under a claim of right." 99 Cong.Rec. 2619 (1953) (Sen. Cordon).
29
The resolution's author, Senator Holland, asked the Acting Chairman:
30
"Am I correct in understanding that under that particular provision the mere fact that the Supreme Court might have held that the United States has paramount rights in submerged lands beyond mean low water, and within State boundaries, would not in any way give the United States the right to claim exceptions of such lands from the joint resolution, in view of the fact that such lands would not be 'presently and actually occupied by the United States' ? Am I correct in that understanding?
31
"Mr. CORDON: The Senator is correct in his understanding." Ibid. (emphasis added).
32
Hence, the test is whether the lands held under some claim of right are "actually occupied" by the Federal Government. If so, they are not relinquished.
33
The same issue arose in the hearings, with identical resolution. The Acting Chairman explained:
34
"[A]ny land occupied by the United States under claim by the United States that it has a right there, is excluded from this conveyance or quitclaim or assignment. . . . It is general language that . . . protects every installation of every kind." Hearings 1322.
35
Senator Long summarized, to the Acting Chairman's agreement:
36
"That, in effect, says that this act does not at all affect any land which the United States is actually occupying. And that means that a representative of the United States Government in one capacity or another is occupying that land." Ibid.
37
Senator Long was concerned that the definition of occupied lands might be stretched to include submerged lands over which the Federal Government had been given dominion in United States v. California, 332 U.S. 19, 67 S.Ct. 1658, 91 L.Ed. 1889 (1947), by reason of the fact that the United States Navy from time to time might sail across them. It was in response to that suggestion that the Acting Chairman made the statement quoted by the majority that " 'the claim of right' [is] 'other than the claim arising by virtue of the decision in [that case] . . . .' "4 Such a construction was, of course, barred, for it would eviscerate the purpose of returning any submerged lands. Ante, at 39. But this ignores the much narrower meaning of "submerged lands occupied by the United States under claim of right" which was intended: the submerged lands that were actually occupied as part of a federal "installation," meaning "a specific area, used for a specific purpose." The distinction is between a general claim under United States v. California to paramount rights, and a very specific claim associated with a federal installation actually occupied. Recalling the Acting Chairman's words: "Occupancy to me is some type of actual either continuous possession or possession in such way as to indicate that the individual claims some special right there different from a vast unoccupied area."5 "[The language is] for the purpose of reserving to the Federal Government the area of any installation, or part of an installation—and I use the term 'installation' to distinguish a specific area, used for a specific purpose, from any vast area that might be claimed under the paramount right doctrine . . . ."6
38
The Channel Islands National Monument includes the submerged lands within a one-mile radius of Anacapa and Santa Barbara Islands.7 The pa ties have stipulated that "the United States 'presently and actually occupied' the areas within one nautical mile of the shoreline of Anacapa and Santa Barbara Islands for purposes of Section 5 of the Submerged Lands Act of 1953, 43 U.S.C. § 1313."8 The federal occupation is to fulfill the specific purpose of providing for "the proper care, management, and protection of the objects of geological and scientific interest located on lands within the said monument." Presidential Proclamation No. 2825, 63 Stat. 1258: The federal occupation is under claim of right, since only federally "owned or controlled" property can be made into a national monument. 16 U.S.C. § 431 (1976 ed.).
39
The majority opinion stresses that the United States' occupation of the submerged lands within the Channel Islands National Monument9 was originally premised on federal control of those areas as granted in United States v. California, supra. This is true. The paramount rights of the United States to these submerged lands, and the absence of California title to them, were recognized in that 1947 decision. In 1949, President Truman allocated a small portion of all the submerged lands within the Federal Government's paramount rights to become part of the Channel Islands National Monument. And in 1953, all the submerged lands not actually occupied by the Federal Government were ceded to the States. But the Channel Islands National Monument remained.
40
Submerged lands for which the federal claim rested "solely upon the doctrine of 'paramount rights' "10 were given up by the Federal Government. The majority's quotation of that statement comes from that part of the Senate Report explaining why the Attorney General's language was accepted, the language that included for the first time "rights . . . in lands presently and actually occupied by the United States under claim of right . . . ." It says "any claim resting solely upon the doctrine of 'paramount rights' " (emphasis added) is lost to the Federal Government, but the majority holds that any claim originating in the doctrine of paramount rights is lost. The majority does not recognize that some rights can originate in the paramount-rights doctrine, yet rest on actual occupation under claim of right as part of a federal installation, annexed before the doctrine of paramount rights was waived in 1953.
41
That, I respectfully submit, is an erroneous interpretation of even that one bit of legislative history.11 It is also contrary to the dominant theme in the legislative history that general, amorphous paramount rights claims were lost, but specific claims coupled with actual occupation of an installation were not. And most critically, the majority view is without support in the statute's plain language that "all lands presently occupied by the United States under claim of right" were p eserved. It is stipulated that the lands were occupied, and a claim of right certainly arises when a President treats property in a manner to which only United States property is subject.12
42
I respectfully dissent.
1
This case is part of ongoing litigation stemming from an action brought in this Court more than three decades ago. United States v. California, 332 U.S. 19, 67 S.Ct. 1658, 91 L.Ed. 1889. The first decree was entered in 1947, 332 U.S. 804, 68 S.Ct. 20, 92 L.Ed. 382; a supplemental decree was entered in 1966, 382 U.S. 448, 86 S.Ct. 607, 15 L.Ed.2d 517; and a second supplemental decree in 1977, 432 U.S. 40, 97 S.Ct. 2915, 53 L.Ed.2d 94. In each instance, jurisdiction was reserved to enter further orders necessary to effectuate the decrees. California initiated the present suit under the 1966 reservation of jurisdiction:
"As to any portion of such boundary line or of any areas claimed to have been reserved under § 5 of the Submerged Lands Act as to which the parties may be unable to agree, either party may apply to the Court at any time for entry of a further supplemental decree." 382 U.S., at 453, 6 S.Ct., at 609.
2
Section 2 of the Act, 34 Stat. 225, 16 U.S.C. § 431 (1976 ed.), provides in pertinent part as follows:
"The President of the United States is authorized, in his discretion, to declare by public proclamation historic landmarks, historic and prehistoric structures, and other objects of historic or scientific interest that are situated upon the lands owned or controlled by the Government of the United States to be national monuments, and may reserve as a part thereof parcels of land, the limits in which in all cases shall be confined to the smallest area compatible with the proper care and management of the objects to be protected."
3
Federal title to the islands can be traced to the 1848 Treaty of Guadalupe Hidalgo, 9 Stat. 922, by which Mexico ceded to the United States the islands lying off the coast of California, along with the adjacent mainland. See Bowman, The Question of Sovereignty over California's Off-Shore Islands, 31 Pac.Hist.Rev. 291 (1962). While the Treaty obligated the United States to respect private property rights derived from Mexican land grants, all nongranted lands previously held by the Government of Mexico passed into the federal public domain. When California was admitted to the Union in 1850, the United States retained ownership of these public lands. See An Act for the Admission of the State of California into the Union, 9 Stat. 452.
4
The 1938 Proclamation did not reserve as a national monument the entire land area of these two islands. Portions were exempted for continued lighthouse purposes, for which the entire islands had previously been reserved. 52 Stat. 1541.
5
As early as 1940, Government officials recognized that enlargement of the Monument would be desirable to protect the birds, sea otters, elephant seals, and fur seals that inhabit the rocks and islets encircling the two large islands, and early drafts of the 1949 Proclamation acknowledged an intent to protect marine life. But after a representative of the Department of Justice expressed the view that the Antiquities Act did not permit establishment or enlargement of a national monument to protect plant and animal life, all references to marine life were dropped from the Proclamation.
6
As noted previousl , the Antiquities Act authorizes the President to set aside only "lands owned or controlled by the Government of the United States . . . ." 34 Stat. 225, 16 U.S.C. § 431 (1976 ed.). Like Anacapa and Santa Barbara Islands, the islets and rocks protruding above the water within the boundaries of the extended Monument were in 1949 public lands owned by the Federal Government. See n. 3, supra.
7
The term "tidelands" is "defined as the shore of the mainland and of islands, between the line of mean high water and the line of mean lower low water . . . ." United States v. California, 382 U.S., at 452, 86 S.Ct. at 609. Those tidelands in California that had not been subject to Mexican land grants entered the federal public domain in 1848, where they remained in trust until California gained statehood in 1850. At that time, they passed to the State under the "equal footing" doctrine. See Borax, Ltd. v. Los Angeles, 296 U.S. 10, 56 S.Ct. 23, 80 L.Ed. 9; United States v. California, 382 U.S. 448, 86 S.Ct. 607, 15 L.Ed.2d 517. Because the tidelands within the Monument were not "owned or controlled" by the United States in 1938 or in 1949, Presidents Roosevelt and Truman could not have reserved them by simply issuing proclamations pursuant to the Antiquities Act.
8
The present controversy apparently arose when California was frustrated in carrying out its program of leases for the harvesting of kelp in these waters. Giant kelp known as Macrocystis grows in the water along portions of the California coast and is harvested to obtain various substances, including algin, a chemical with many commercial uses. See North, Giant Kelp, Sequoias of the Sea, National Geographic (Aug. 1972), and Zahl, Algae: the Life-givers, National Geographic (Mar. 1974).
9
Although the Antiquities Act refers to "lands," this Court has recognized that it also authorizes the reservation of waters located on or over federal lands. See Cappaert v. United States, 426 U.S. 128, 138-142, 96 S.Ct. 2062, 2069, 2071, 48 L.Ed. 523; United States v. Oregon, 295 U.S. 1, 14, 55 S.Ct. 610, 615, 79 L.Ed. 1267.
10
In preparation for the Proclamation, memoranda were circul ted within and among Government agencies, many of which proposed adding to the Monument "all islets, rocks, and waters" within one nautical mile of Anacapa and Santa Barbara Islands. The final version of the 1949 Proclamation, however, was not so clear. It began: "WHEREAS it appears that certain islets and rocks situated near Anacapa and Santa Barbara Islands . . . are required for the proper care, management, and protection of the objects of geological and scientific interest located on lands within [the Channel Islands National Monument] . . ." (emphasis added). The Proclamation then went on to reserve "the areas within one nautical mile" of each of the two large islands, "as indicated on the diagram hereto attached . . . ." The diagram showed Anacapa and Santa Barbara Islands, each encircled by a broken line at a distance of one mile from the island's shoreline. At the bottom of the two maps appeared acreage figures that, according to stipulations filed by the parties, described approximately the entire surface area circumscribed by the broken lines.
11
Section 2(a)(2) of the Act, 67 Stat. 29, 43 U.S.C. § 1301(a)(2), defines "lands beneath navigable waters" as "all lands permanently or periodically covered by tidal waters up to but not above the line of mean high tide and seaward to a line three geographical miles distant from the coast line of each such State and to the boundary line of each such State where in any case such boundary as it existed at the time such State became a member of the Union, or as heretofore approved by Congress, extends seaward (or into the Gulf of Mexico) beyond three geographical miles . . . ." The term "natural resources" is defined in § 2(e), 43 U.S.C. § 1301(e), to "includ[e], without limiting the generality thereof, oil, gas, and all other minerals, and fish, shrimp, oysters, clams, crabs, lobsters, sponges, kelp, and other marine animal and plant life" but not "water power, or the use of water for the production of power . . . ."
12
Section 5(a) of the Act, 67 Stat. 32, 43 U.S.C. § 1313(a), provides:
"There is excepted from the operation of section 3 of this Act—
"(a) all tracts or parcels of land together with all accretions thereto, resources therein, or improvements thereon title to which has been lawfully and expressly acquired by the United States from any State or from any person in whom title had vested under the law of the State or of the United States, and all lands which the United States lawfully holds under the law of the State; all lands expressly retained by or ceded to the United States when the State entered the Union (otherwise than by a general retention or cession of lands underlying the marginal sea); all lands acquired by the United States by eminent domain proceedings, purchase, cession, gift, or otherwise in a proprietary capacity; all lands filled in, built up, or otherwise reclaimed by the United States for its own use; and any rights the United States has in lands presently and actually occupied by the United States under claim of right."
13
The parties have stipulated that "the United States 'presently and actually occupied' the areas within one nautical mile of the shoreline of Anacapa and Santa Barbara Islands for purposes of Section 5 of the Submerged Lands Act of 1953, 43 U.S.C. § 1313." Thus, the question is simply what "rights" the United States had in these submerged lands and waters in 1953.
14
Remarks of Senator Cordon, Hearings on S.J.Res.13 et al. before the Senate Committee on Interior and Insular Affairs, 83d Cong., 1st Sess., 1322 (1953). During Committee hearings on the bill, the following exchange occurred between Senator Kuchel and Senator Cordon, who was Acting Chairman of the Committee:
"Senator KUCHEL. What does 'claim of right' mean?
"Senator CORDON. Well, it means that the United States is in actual occupancy and claims it has a right to the occupancy.
"Senator KUCHEL. And it permits the United States to keep the property in the absence of a title?
"Senator CORDON. No; it does not. It leaves the question of whether it is a good claim or not a good claim exactly where it was before. This is simply an exception by the United States of a voluntary release of its claim, whatever it is. It does not, in anywise, validate the claim or prejudice it.
"Senator KUCHEL. Why should we recognize it, Senator, any more than any other so-called color or title of claim . . . ?
"Senator CORDON. For the reason that in my opinion, Senator, this land now is not land to which the State has title and we are conveying title. We may except what we will." Id., at 1321.
15
Id., at 1321, 1322.
16
Id., at 1322.
17
This view is reflected in a memorandum written by the Director of the Bureau of Land Management to the Director of the National Park Service in 1947, in response to the latter's proposal that the Channel Islands National Monument be enlarged:
"If you wish to have these islands added to the Channel Islands National Monument, the bureau will be glad to prepare an appropriate proclamation. In the event you desire at this time to have the islands withdrawn for national monument classification, a public land order to accomplish this purpose will be prepared."
18
With the exception, of course, of any interests retained by the United States via provisions other than the last clause of § 5(a) of the Submerged Lands Act. For example, § 6(a) provides for the retention by the United States of its navigational servitude and its "rights in and powers of regulation and control of said lands and navigable waters for the constitutional purposes of commerce, navigation, national defense, and international affairs . . . ." 67 Stat. 32, 43 U.S.C. § 1314(a).
1
43 U.S.C. § 1313(a).
2
Letter of Attorney General Brownell, Hearings on S.J.Res.13 et al. before the Senate Committee on Interior and Insular Affairs, 83d Cong., 1st Sess., 935 (1953) (hereafter Hearings).
3
There is no quarrel that the use of the word "lands" in this context extends to submerged lands. The Act concerns submerged lands in its section ceding the area to the States, 43 U.S.C. § 1311, and similarly in this section concerning exceptions to that cession.
4
Ante, at 39, quoting Hearings 1322.
5
Ibid.
6
99 Cong.Rec. 2619 (1953).
7
Although the point is contested, there is little left to decide upon reading in President Truman's Presidential Proclamation No. 2825 of February 9, 1949, 63 Stat. 1258, that "the areas within one nautical mile of the shoreline of Anacapa and Santa Barbara Islands" were added to the National Monument. The parties have stipulated that "the acreage figures shown on the diagram accompanying Presidential Proclamation No. 2825 are figures which approximate the total surface area of Anacapa and Santa Barbara Islands and one nautical mile of waters surrounding those islands." App. 2. This leaves no force at all to defendant's reliance on the Proclamation's preamble which refers to "certain islets and rocks" but not specifically to submerged lands or water.
8
Id., at 1. The stipulation was made contingent upon a finding that the submerged lands and waters within the one-mile radius were found to be part of the National Monument.
9
The majority does not reach whether the submerged lands are actually within the Monument.
10
S.Rep.No.133, 83d Cong., 1st Sess., pt. 1, p. 20 (1953).
11
The purpose of the Attorney General's proposed amendment was to preserve federal control over "all installations and acquisitions of the Federal Government within such area." Hearings 935. The submerged lands within a one-nautical-mile radius became an "acquisition" of the Channel Islands National Monument "installation" in 1949.
12
On the face of the statute, it might be asked how any claim of right could arise more clearly than for a President to incorporate the property within a national monument. If President Truman did not act under claim of right, it is hard to surmise how he did act.
| 89
|
435 U.S. 850
98 S.Ct. 1547
56 L.Ed.2d 18
UNITED STATES, Petitioner,v.Jeffrey R. MacDONALD.
No. 75-1892.
Argued Jan. 9, 1978.
Decided May 1, 1978.
Syllabus
A defendant may not, before trial, appeal a federal district court's order denying his motion to dismiss an indictment because of an alleged violation of his Sixth Amendment right to a speedy trial. Pp. 853-863.
4th Cir., 531 F.2d 196, reversed and remanded.
Kenneth S. Geller, Washington, D. C., for petitioner.
Bernard L. Segal, San Francisco, Cal., for respondent.
Mr. Justice BLACKMUN delivered the opinion of the Court.
1
This case presents the issue whether a defendant, before trial, may appeal a federal district court's order denying his motion to dismiss an indictment because of an alleged violation of his Sixth Amendment right to a speedy trial.1
2
* In February 1970, respondent Jeffrey R. MacDonald was a physician in military service stationed at Fort Bragg in North Carolina. He held the rank of captain in the Army Medical Corps.
3
Captain MacDonald's wife and their two daughters were murdered on February 17 at respondent's quarters. Respondent also sustained injury on that occasion. The military police, the Army's Criminal Investigation Division (CID), the Federal Bureau of Investigation, and the Fayetteville, N. C., Police Department all immediately began investigations of the crime. On April 6 the CID informed respondent that he was under suspicion and, that same day, he was relieved of his duties and restricted to quarters. On May 1, pursuant to Art. 30 of the Uniform Code of Military Justice (UCMJ), 10 U.S.C. § 830, the Army charged respondent with the murders. As required by Art. 32 of the UCMJ, 10 U.S.C. § 832, an investigating officer was appointed to investigate the crimes and to recommend whether the charges (three specifications of murder, in violation of Art. 118 of the UCMJ, 10 U.S.C. § 918) should be referred by the general court-martial convening authority (the post commander) to a general court-martial for trial. App. 131.
4
At the conclusion of the Art. 32 proceeding, the investigating officer filed a report in which he recommended that the charges against respondent be dismissed, and that the civilian authorities investigate a named female suspect. App. 136. On October 23, after review of this report, the commanding general of respondent's unit accepted the recommendation and dismissed the charges. In December 1970, the Army granted respondent an honorable discharge for reasons of hardship.2
5
Following respondent's release from the military, and at the request of the epartment of Justice, the CID continued its investigation. This was extensive and wide ranging. In June 1972, the CID submitted to the Department of Justice a 13-volume report recommending still further investigation. Supplemental reports were transmitted in November 1972 and August 1973. It was not until August 1974, however, that the Government began the presentation of the case to a grand jury of the United States District Court for the Eastern District of North Carolina.3 On January 24, 1975, the grand jury indicted respondent on three counts of first-degree murder, in violation of 18 U.S.C. § 1111. App. 22-23. He was promptly arrested and then released on bail a week later.
6
On July 29, the District Court denied a number of pretrial motions submitted by respondent. Among these were a motion to dismiss the indictment on double jeopardy grounds and another to dismiss because of the denial of his Sixth Amendment right to a speedy trial. App. to Pet. for Cert. 44a, 46a, 49a. Relying on United States v. Marion, 404 U.S. 307, 92 S.Ct. 455, 30 L.Ed.2d 468 (1971), the District Court concluded: "The right to a speedy trial under the Sixth Amendment does not arise until a person has been 'accused' of a crime, and in this case this did not occur until the indictment had been returned." App. to Pet. for Cert. 49a. Trial was scheduled to begin in August.
7
The United States Court of Appeals for the Fourth Circuit stayed the trial and allowed an interlocutory appeal on the authority of its decision in United States v. Lansdown, 460 F.2d 164 (1972). App. to Pet. for Cert. 42a. The Court of Appeals, by a divided vote, reversed the District Court's denial of respondent's motion to dismiss on speedy trial grounds and remanded the case with instructions to dismiss the indictment. 531 F.2d 196 (1976). The Government's petition for rehearing, with suggestion for rehearing en banc, was denied by an evenly divided vote. App. to Pet. for Cert. 2a.
8
The Court of Appeals panel majority recognized that the denial of a pretrial motion in a criminal case generally is not appealable. The court, however, offered two grounds for its assumption of jurisdiction in this particular case. It stated, first, that it considered respondent's speedy trial claim to be pendent to his double jeopardy claim, the denial of which Lansdown had held to be appealable before trial. Alternatively, although conceding that "[n]ot every speedy trial claim . . . merits an interlocutory appeal," and that "[g]enerally, this defense should be reviewed after final judgment," the court stated that it was "the extraordinary nature of MacDonald's case that persuaded us to allow an interlocutory appeal." 531 F.2d, at 199.
9
On the merits, the majority concluded that respondent had been deprived of his Sixth Amendment right to a speedy trial. The dissenting judge without addressing the jurisdictional issue, concluded that respondent's right to a speedy trial had not been violated. Id., at 209.
10
Because of the importance of the jurisdictional question to the criminal law, we granted certiorari. 432 U.S. 905, 97 S.Ct. 2948, 53 L.Ed.2d 1076 (1977).
II
11
This Court frequently has considered the appealability of pretrial orders in criminal cases. See, e. g., Abney v. United States, 431 U.S. 651, 97 S.Ct. 2034, 52 L.Ed.2d 651 (1977); Di Bella v. United States, 369 U.S. 121, 82 S.Ct. 654, 7 L.Ed.2d 614 (1962); Parr v. United States, 351 U.S. 513, 76 S.Ct. 912, 100 L.Ed. 1377 (1956); Cobbledick v. United States, 309 U.S. 323, 60 S.Ct. 540, 84 L.Ed. 783 (1940). Just last Term the Court reiterated that interlocutory or "piecemeal" appeals are disfavored. "Finality of judgment has been required as a predicate for federal appellate jurisdiction." Abney v. United States, 431 U.S., at 656, 97 S.Ct., a 2039. See also Di Bella v. United States, 369 U.S., at 124, 82 S.Ct., at 656.
12
This traditional and basic 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.4 The rule of finality has particular force in criminal prosecutions because "encouragement of delay is fatal to the vindication of the criminal law." Cobbledick v. United States, 309 U.S., at 325, 60 S.Ct., at 541. See also Di Bella v. United States, 369 U.S., at 126, 82 S.Ct., at 657.
13
This Court in criminal cases has twice departed from the general prohibition against piecemeal appellate review. Abney v. United States, supra; Stack v. Boyle, 342 U.S. 1, 72 S.Ct. 1, 96 L.Ed. 3 (1951). In each instance, the Court relied on the final-judgment rule's "collateral order" exception articulated in Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541, 545-547, 69 S.Ct. 1221, 1225-1226, 93 L.Ed. 1528 (1949).
14
Cohen was a stockholder's derivative action in which federal jurisdiction was based on diversity of citizenship. Before final judgment was entered, the question arose whether a newly enacted state statute requiring a derivative-suit plaintiff to post security applied in federal court. The District Court held that it did not, and the defendants immediately appealed. The Court of Appeals reversed and ordered the posting of security. This Court concluded that the Court of Appeals had properly assumed jurisdiction to review the trial judge's ruling, and affirmed.
15
The Court's opinion began by emphasizing the principle—well established even then—that there can be no appeal before final judgment "even from fully consummated decisions, where they are but steps towards final judgment in which they will merge. The purpose is to combine in one review all stages of the proceeding that effectively may be reviewed and corrected if and when final judgment results." Id., at 546, 69 S.Ct., at 1225. The Court's conclusion that the order appealed from qualified as a "final decision," within the language of 28 U.S.C. § 1291, however, rested on several grounds. Those grounds were summarized in Abney v. United States, 431 U.S., at 658, 97 S.Ct., at 2040:
16
"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' [337 U.S., at 546, 69 S.Ct. 1221]. 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."
17
Two years after the decision in Cohen, the Court applied the "collateral order" doctrine in a criminal proceeding, holding that an order denying a motion to reduce bail could be reviewed before trial. Stack v. Boyle, supra. Writing separately in that case, Mr. Justice Jackson (the author of Cohen ) explained that, like the question of posting security in Cohen, "an order fixing bail can be reviewed without halting the main trial—its issues are entirely independent of the issues to be tried—and unless it can be reviewed before sentence, it never can be reviewed a all." 342 U.S., at 12, 72 S.Ct., at 7.
18
In Abney, the Court returned to this theme, holding that the collateral-order doctrine permits interlocutory appeal of an order denying a pretrial motion to dismiss an indictment on double jeopardy grounds. In so holding, the Court emphasized the special features of a motion to dismiss based on double jeopardy. It pointed out, first, that such an order constitutes "a complete, formal and, in the trial court, a 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." 431 U.S., at 659, 97 S.Ct., at 2040. Secondly, it noted that "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." Ibid. Finally, and perhaps most importantly, "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." Id., at 660, 97 S.Ct., at 2041.
III
19
The application to the instant case of the principles enunciated in the above precedents is straightforward.5 Like the denial of a motion to dismiss an indictment on double jeopardy grounds, a pretrial order rejecting a defendant's speedy trial claim plainly "lacks the finality traditionally considered indispensable to appellate review," Abney v. United States, 431 U.S., at 659, 97 S.Ct., at 2040, that is, such an order obviously is not final in the sense of terminating the criminal proceedings in the trial court. Thus, if such an order may be appealed before trial, it is because it satisfies the criteria identified in Cohen and Abney as sufficient to warrant suspension of the established rules against piecemeal review before final judgment.
20
We believe it clear that an order denying a motion to dismiss an indictment on speedy trial grounds does not satisfy those criteria. The considerations that militated in favor of appealability in Stock v. Boyle, supra, and in Abney v. United States are absent or markedly attenuated in the present case. In keeping with wha appear to be the only two other federal cases in which a defendant has sought pretrial review of an order denying his motion to dismiss an indictment on speedy trial grounds, we hold that the Court of Appeals lacked jurisdiction to entertain respondent's speedy trial appeal. United States v. Bailey, 512 F.2d 833 (CA5), cert. dism'd, 423 U.S. 1039, 96 S.Ct. 578, 46 L.Ed.2d 415 (1975); Kyle v. United States, 211 F.2d 912 (CA9 1954).6
21
In sharp distinction to a denial of a motion to dismiss on double jeopardy grounds, a denial of a motion to dismiss on speedy trial grounds does not represent "a complete, formal and, in the trial court, a final rejection" of the defendant's claim. Abney v. United States, 431 U.S., at 659, 97 S.Ct., at 2040. The resolution of a speedy trial claim necessitates a careful assessment of the particular facts of the case. As is reflected in the decisions of this Court, most speedy trial claims, therefore, are best considered only after the relevant facts have been developed at trial.
22
In Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972), the Court listed four factors that are to be weighed in determining whether an accused has been deprived of his Sixth Amendment right to a speedy trial. They are the length of the delay, the reason for the delay, whether the defendant has asserted his right, and prejudice to the defendant from the delay. Id., at 530, 92 S.Ct., at 2191. The Court noted that prejudice to the defendant must be considered in the light of the interests the speedy trial right was designed to protect: "(i) to prevent concern of the accused; and (iii) to limit the possibility that the defense will be impaired. Of these, the most serious is the last, because the inability of a defendant adequately to prepare his case skews the fairness of the entire system." Id., at 532, 92 S.Ct., at 2193 (footnote omitted).
23
Before trial, of course, an estimate of the degree to which delay has impaired an adequate defense tends to be speculative. The denial of a pretrial motion to dismiss an indictment on speedy trial grounds does not indicate that a like motion made after trial—when prejudice can be better gauged—would also be denied. Hence, pretrial denial of a speedy trial claim can never be considered a complete, formal, and final rejection by the trial court of the defendant's con ention; rather, the question at stake in the motion to dismiss necessarily "remains open, unfinished [and] inconclusive" until the trial court has pronounced judgment. Cohen, 337 U.S., at 546, 69 S.Ct., at 1225.
24
Closely related to the "threshold requirement of a fully consummated decision," Abney v. United States, 431 U.S., at 659, 97 S.Ct., at 2040, is the requirement that the order sought to be appealed be "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." Ibid. In each of the two cases where this Court has upheld a pretrial appeal by a criminal defendant, the order sought to be reviewed clearly fit this description. Abney v. United States, (double jeopardy); Stack v. Boyle, (bail reduction). As already noted, however, there exists no such divorce between the question of prejudice to the conduct of the defense (which so often is central to an assessment of a speedy trial claim) and the events at trial. Quite the contrary, in the usual case, they are intertwined.
25
Even if the degree of prejudice could be accurately measured before trial, a speedy trial claim nonetheless would not be sufficiently independent of the outcome of the trial to warrant pretrial appellate review. The claim would be largely satisfied by an acquittal resulting from the prosecution's failure to carry its burden of proof. The double jeopardy motion in Abney was separable from the issues at trial because "[t]he elements of that claim are completely independent of [the accused's] guilt or innocence," 431 U.S., at 660, 97 S.Ct., at 2040, since an acquittal would not have eliminated the defendant's grievance at having been put twice in jeopardy. In contrast, a central interest served by the Speedy Trial Clause is the protection of the factfinding process at trial. The essence of a defendant's Sixth Amendment claim in the usual case is that the passage of time has frustrated his ability to establish his innocence of the crime charged. Normally, it is only after trial that that claim may fairly be assessed.
26
Relatedly, the order sought to be appealed in this case may not accurately be described, in the sense that the description has been employed, as involving "an important right which would be 'lost, probably irreparably,' if review had to await final judgment." Id., at 658, 97 S.Ct., at 2040, quoting Cohen, 337 U.S., at 546, 69 S.Ct., at 1225. The double jeopardy claim in Abney, the demand for reduced bail in Stack v. Boyle, and the posting of security at issue in Cohen each involved an asserted right the legal and practical value of which would be destroyed if it were not vindicated before trial.7 There perhaps is some superficial attraction in the argument that the right to a speedy trial—by analogy to these other rights—must be vindicated before trial in order to insure that no nonspeedy trial is ever held. Both doctrinally and pragmatically, however, this argument fails. Unlike the protection afforded by the Double Jeopardy Clause, the Speedy Trial Clause does not, either on its face or according to the decisions of this Court, encompass a "right not to be tried" which must be upheld prior to trial if it is to be enjoyed at all. It is the delay before trial, not the trial itself, that offends against the constitutional guarantee of a speedy trial. If the factors outlined in Barker v. Wingo, supra, combine to deprive an accused of his right to a speedy trial, that loss, by definition, occurs before trial. Proceeding with the trial does not cause or compound the deprivation already suffered.
27
Furthermore, in most cases, as noted above, it is difficult to make the careful examination of the constituent elements of the speedy trial claim before trial.8 Appellate courts would be in no better position than trial courts to vindicate a right that had not yet been shown to have been infringed.
IV
28
As the preceding discussion demonstrates, application of the principles articulated in Cohen and Abney to speedy trial claims compels the conclusion that such claims are not appealable before trial. This in itself is dispositive. Our conclusion, however, is reinforced by the important policy considerations that underlie both the Speedy Trial Clause and 28 U.S.C. § 1291.
29
Significantly, this Court has emphasized that one of the principal reasons for its strict adherence to the doctrine of finality in criminal cases is that "[t]he Sixth Amendment guarantees a speedy trial." Di Bella v. United States, 369 U.S., at 126, 82 S.Ct., at 658. Fulfillment of this guarantee would be impossible if every pretrial order were appealable.
30
Many defendants, of course, would be willing to tolerate the delay in a trial that is attendant upon a pretrial appeal in the hope of winning that appeal. The right to a speedy trial, however, "is generically different from any of the other rights enshrined in the Constitution for the protection of the accused" because "there is a societal interest in providing a speedy trial which exists separate from, and at times in opposition to, the interests of the accused." Barker v. Wingo, 407 U.S., at 519, 92 S.Ct., at 2186. See also United States v. Avalos, 541 F.2d 1100, 1110 (CA5 1976), cert. denied, 430 U.S. 970, 97 S.Ct. 1656, 52 L.Ed.2d 363 (1977). Among other things, delay may prejudice the prosecution's ability to prove its case, increase the cost to society of maintaining those defendants subject to pretrial detention, and prolong the period during which defendants released on bail may commit other crimes. Dickey v. Florida, 398 U.S. 30, 42, 90 S.Ct. 1564, 1571, 26 L.Ed.2d 26 (1970) (Brennan, J., concurring).
31
Allowing an exception to the rule against pretrial appeals in criminal cases for speedy trial claims would threaten precisely the values manifested in the Speedy Trial Clause. And some assertions of delay-caused prejudice would become self-fulfilling prophecies during the period necessary for appeal.
32
There is one final argument for disallowing pretrial appeals on speedy trial grounds. As the Court previously has observed, there is nothing about the circumstances that will support a speedy trial claim which inherently limits the availability of the claim. See Barker v. Wingo, 407 U.S., at 521-522, 530, 92 S.Ct., at 2187-2191. Unlike a double jeopardy claim, which equires at least a colorable showing that the defendant once before has been in jeopardy of federal conviction on the same or a related offense, in every case there will be some period between arrest or indictment and trial during which time "every defendant will either be incarcerated . . . or on bail subject to substantial restrictions on his liberty." Id., at 537, 92 S.Ct., at 2195 (White, J., concurring). Thus, any defendant can make a pretrial motion for dismissal on speedy trial grounds and, if § 1291 is not honored, could immediately appeal its denial.
V
33
In sum, we decline to exacerbate pretrial delay by intruding upon accepted principles of finality to allow a defendant whose speedy trial motion has been denied before trial to obtain interlocutory appellate review.9 The judgment of the Court of Appeals is therefore reversed, and the case is remanded for further proceedings consistent with this opinion.
34
It is so ordered.
35
Mr. Justice BRENNAN took no part in the consideration or decision of this case.
1
The Sixth Amendment reads in pertinent part:
"In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed . . . ."
2
Respondent's discharge barred any further military proceeding against him. United States ex rel. Toth v. Quarles, 350 U.S. 11, 76 S.Ct. 1, 100 L.Ed. 8 (1955).
3
There was federal-court jurisdiction because the crimes were committed on a military reservation. 18 U.S.C. §§ 7(3), 1111, and 3231.
4
Title 28 U.S.C. § 1291 reads:
"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."
5
Respondent would rely on United States v. Marion, 404 U.S. 307, 92 S.Ct. 455, 30 L.Ed.2d 468 (1971), to demonstrate that a defendant has a right to appeal before trial the denial of a motion to dismiss an indictment on speedy trial grounds. That case, however, is clearly distinguishable. In Marion, the District Court granted the defendants' motion to dismiss the indictment on speedy trial grounds, and the Government appealed the dismissal to this Court. The appeal was predicated on the Criminal Appeals Act, 18 U.S.C. § 3731 (1964 ed., Supp. V), which, at the time, provided in relevant part:
"An appeal may be taken by and on behalf of the United States from the district courts direct to the Supreme Court of the United States in all criminal cases in the following instances:
* * * * *
"From the decision or judgment sustaining a motion in bar, when the defendant has not been put in jeopardy."
Currently, 18 U.S.C. § 3731 (1976 ed.) provides:
"In a criminal case, an appeal by the United States shall lie to a court of appeals from a decision, judgment, or order of a district court dismissing an indictment or information as to any one or more counts, except that no appeal shall lie where the double jeopardy clause of the United States Constitution prohibits further prosecution."
Obviously, neither the former version of the statute nor the current one has anything whatsoever to do with a defendant's right to appeal the denial of a motion to dismiss an indictment on speedy trial grounds.
6
The justifications proffered by the Court of Appeals for its exercise of jurisdiction (see supra, at 852-853) are not persuasive for us. The argument that respondent's Sixth Amendment claim was "pendent" to his double jeopardy claim is vitiated by Abney v. United States, 431 U.S. 651, 662-663, 97 S.Ct. 2034, 2041-2042, 52 L.Ed.2d 651 (1977) (decided after the Court of Appeals filed its opinion), where this Court concluded that a federal court of appeals is without pendent jurisdiction over otherwise nonappealable claims even though they are joined with a double jeopardy claim over which the appellate court does have interlocutory appellate jurisdiction. See also United States v. Cerilli, 558 F.2d 697, 699-700 (CA3), cert. denied, 434 U.S. 966, 98 S.Ct. 507, 54 L.Ed.2d 452 (1977).
The Court of Appeals' alternative rationale—that it was the "extraordinary nature" of respondent's claim that merited interlocutory appeal, even though not all speedy trial claims would be so meritorious—is also unpersuasive. "Appeal rights cannot depend on the facts of a particular case." Carroll v. United States, 354 U.S. 394, 405, 77 S.Ct. 1332, 1339, 1 L.Ed.2d 1442 (1957). The factual circumstances that underlie a speedy trial claim, however "extraordinary," cannot establish its independent appealability prior to trial. Under the controlling jurisdictional statute, 28 U.S.C. § 1291, the federal courts of appeals have power to review only "final decisions," a concept that Congress defined "in terms of categories." Carroll v. United States, 354 U.S., at 405, 77 S.Ct., at 1339.
7
Admittedly, there is value—to all but the most unusual litigant—in triumphing before trial, rather than after it, regardless of the substance of the winning claim. But this truism is not to be confused with the quite distinct proposition that certain claims (because of the substance of the rights ntailed, rather than the advantage to a litigant in winning his claim sooner) should be resolved before trial. Double jeopardy claims are paradigmatic.
Certainly, the fact that this Court has held dismissal of the indictment to be the proper remedy when the Sixth Amendment right to a speedy trial has been violated, see Strunk v. United States, 412 U.S. 434, 93 S.Ct. 2260, 37 L.Ed.2d 56 (1973), does not mean that a defendant enjoys a "right not to be tried" which must be safeguarded by interlocutory appellate review. Dismissal of the indictment is the proper sanction when a defendant has been granted immunity from prosecution, when his indictment is defective, or, usually, when the only evidence against him was seized in violation of the Fourth Amendment. Obviously, however, this has not led the Court to conclude that such defendants can pursue interlocutory appeals. Abney v. United States, 431 U.S., at 663, 97 S.Ct., at 2042; Cogen v. United States, 278 U.S. 221, 227, 49 S.Ct. 118, 120, 73 L.Ed. 275 (1929); Heike v. United States, 217 U.S. 423, 430, 30 S.Ct. 539, 541, 54 L.Ed. 821 (1910).
8
Of course, an accused who does successfully establish a speedy trial claim before trial will not be tried.
9
In view of our resolution of the appealability issue, we do not reach the merits of respondent's motion to dismiss the indictment on speedy trial grounds. Similarly, we express no opinion on the District Court's denial of respondent's motion to have the indictment dismissed on double jeopardy grounds. The Court of Appeals stated that it had jurisdiction to review the latter claim, 531 F.2d 196, 199 (1976), but declined to address its merits because of the court's disposition of respondent's speedy trial motion. Id., at 209.
| 01
|
435 U.S. 829
98 S.Ct. 1535
56 L.Ed.2d 1
LANDMARK COMMUNICATIONS, INC., Appellant,v.Commonwealth of VIRGINIA.
No. 76-1450.
Argued Jan. 11, 1978.
Decided May 1, 1978.
Syllabus
A Virginia statute makes it a crime to divulge information regarding proceedings before a state judicial review commission that is authorized to hear complaints about judges' disability or misconduct. For printing in its newspaper an article accurately reporting on a pending inquiry by the commission and identifying the judge whose conduct was being investigated, appellant publisher was convicted of violating the statute. Rejecting appellant's contention that the statute violated the First Amendment as made applicable to the States by the Fourteenth, the Virginia Supreme Court affirmed. Held: The First Amendment does not permit the criminal punishment of third persons who are strangers to proceedings before such a commission for divulging or publishing truthful information regarding confidential proceedings of the commission. Pp. 837-845.
(a) A major purpose of the First Amendment is to protect the free discussion of governmental affairs, which includes discussion of the operations of the courts and judicial conduct, and the article published by appellant's newspaper served the interests of public scrutiny of such matters. Pp. 838-839.
(b) The question is not whether the confidentiality of commission proceedings serves legitimate state interests, but whether those interests are sufficient to justify encroaching on First Amendment guarantees that the imposition of criminal sanctions entails. Injury to the reputation of judges or the institutional reputation of courts is not sufficient to justify "repressing speech that would otherwise be free." New York Times Co. v. Sullivan, 376 U.S. 254, 272-273, 84 S.Ct. 710, 721-722, 11 L.Ed.2d 686. Pp. 839-842.
(c) The mere fact that the legislature found a clear and present danger to the orderly administration of justice justifying enactment of the challenged statute did not preclude the necessity of proof that such danger existed. This Court has consistently rejected the argument that out-of-court comments on pending cases or grand jury investigations constituted a clear and present danger to the administration of justice. See Bridges v. California, 314 U.S. 252, 62 S.Ct. 190, 86 L.Ed. 192; Pennekamp v. Florida, 328 U.S. 331, 66 S.Ct. 1029, 90 L.Ed. 1295; Craig v. Harney, 331 U.S. 367, 67 S.Ct. 1249, 91 L.Ed. 1546; Wood v. Georgia, 370 U.S. 375, 82 S.Ct. 1364, 8 L.Ed.2d 569. If the clear-and-present-danger test could not be satisfied in those cases, a fortiori it could not be satisfied here. Pp. 842-845. (d) Much of the risk to the orderly administration of justice can be eliminated through careful internal procedures to protect the confidentiality of commission proceedings. P. 845.
217 Va. 699, 233 S.E.2d 120, reversed and remanded.
Floyd Abrams, New York City, for appellant.
James E. Kulp, Richmond, Va., for appellee.
Mr. Chief Justice BURGER delivered the opinion of the Court.
1
The question presented on this appeal is whether the Commonwealth of Virginia may subject persons, including newspapers, to criminal sanctions for divulging information regarding proceedings before a state judicial review commission which is authorized to hear complaints as to judges' disability or misconduct, when such proceedings are declared confidential by the State Constitution and statutes.1
2
* On October 4, 1975, the Virginian Pilot, a Landmark newspaper, published an article which accurately reported on a pending inquiry by the Virginia Judicial Inquiry and Review Commission and identified the state judge whose conduct was being investigated. The article reported that "[n]o formal complaint has been filed by the commission against [the judge], indicating either that the five-man panel found insufficient cause for action or that the case is still under review." App. 47a. A month later, on November 5, a grand jury indicted Landmark for violating Va.Code § 2.1-37.13 (1973) by "unlawfully divulg[ing] the identification of a Judge of a Court not of record, which said Judge was the subject of an investigation and hearing" by the Commission.
3
The trial commenced on December 16, 1975, after the court had denied Landmark's motion to quash or dismiss the indictment on the grounds that the statutory provision did not in terms apply to the article in question and that it could not be so applied consistently with the First and Fourteenth Amendments. The essential facts were stipulated, and revealed that at the time the article was published the Commission had not filed a formal complaint with the Supreme Court of Virginia concerning the judge under investigation.2 The only witness at the trial, Joseph W. Dunn, Jr., Managing Editor of the Virginian Pilot, testified that he decided to print the information about the Commission proceedings because he felt that the subject was a matter of public importance which should be brought to the attention of the Pilot's readers. Mr. Dunn acknowledged he was aware that it was a misdemeanor for anyone participating i Commission proceedings to divulge information about those proceedings, but testified that he did not understand the statute to apply to newspaper reports about the proceedings. He further testified that no reporter, employee, or representative of Landmark had been subpoenaed by or had appeared before the Commission in connection with the proceedings described in the October 4 article.
4
The case was tried without a jury, and Landmark was found guilty and fined $500 plus the costs of prosecution. The Supreme Court of Virginia affirmed the conviction, with one dissent. That court characterized the case as involving "a confrontation between the First Amendment guaranty of freedom of the press and a Virginia statute which imposes criminal sanctions for breach of the confidentiality of proceedings before the Judicial Inquiry and Review Commission." At the outset it rejected Landmark's claim that Va.Code § 2.1-37.13 (1973) applied only to the participants in a Commission proceeding or to the initial disclosure of confidential information. "Clearly, Landmark's actions violated [the statute] and rendered it liable to imposition of the sanctions prescribed . . . ." 217 Va. 699, 703, 233 S.E.2d 120, 123.
5
Turning then to the constitutional question, the court noted that it was one of first impression and of broad significance because of the large number of other States in addition to Virginia which have comparable statutes requiring confidentiality with respect to judicial inquiry commissions. The court emphasized that the issue was not one of prior restraint but instead involved a sanction subsequent to publication. Accordingly, it concluded that the "clear and present danger test" was the appropriate constitutional benchmark. It identified three functions served by the requirement of confidentiality in Commission proceedings: (a) protection of a judge's reputation from the adverse publicity which might flow from frivolous complaints, (b) maintenance of confidence in the judicial system by preventing the premature disclosure of a complaint before the Commission has determined that the charge is well founded, and (c) protection of complainants and witnesses from possible recrimination by prohibiting disclosure until the validity of the complaint has been ascertained. The court concluded:
6
"Considering these matters, we believe it can be said safely, without need of hard in-court evidence, that, absent a requirement of confidentiality, the Judicial Inquiry and Review Commission could not function properly or discharge effectively its intended purpose. Thus, sanctions are indispensable to the suppression of a clear and present danger posed by the premature disclosure of the Commission's sensitive proceedings—the imminent impairment of the effectiveness of the Commission and the accompanying immediate threat to the orderly administration of justice." Id., at 712, 233 S.E.2d, at 129.
7
In dissent, Justice Poff took the position that as applied to Landmark the statute violated the First Amendment. We noted probable jurisdiction, 431 U.S. 964, 97 S.Ct. 2919, 53 L.Ed.2d 1059 and we now reverse.3
II
8
At the present time it appears that 47 States, the District of Columbia, and Puerto Rico, have established by constitution, statute, or court rule, some type of judicial inquiry and disciplinary procedures.4 All of these jurisdictions, with the apparent exception of Puerto Rico, provide for the confidentiality of judicial disciplinary proceedings, although in most the guarantee of confidentiality extends only to the point when a formal complaint is filed with the State Supreme Court or equivalent body.5 Cf. ABA Project on Standards for Criminal Justice, The Function of the Trial Judge § 9.1 (App.Draft 1972).
9
The substantial uniformity of the existing state plans suggests that confidentiality is perceived as tending to insure the ultimate effectiveness of the judicial review commissions. First, confidentiality is thought to encourage the filing of complaints and the willing participation of relevant witnesses by providing protection against possible retaliation or recrimination.6 Second, at least until the time when the meritorious can be separated from the frivolous complaints, the confidentiality of the proceedings protects judges from the injury which might result from publication of unexamined and unwarranted complaints. And finally, it is argued, confidence in the judiciary as an institution is maintained by avoiding premature announcement of groundless claims of judicial misconduct or disability since it can be assumed that some frivolous complaints will be made against judicial officers who rarely can satisfy all contending litigants. See generally W. Braithwaite, Who Judges the Judges? 161-162 (1971); Buckley, The Commission on Judicial Qualifications: An Attempt to Deal with Judicial Misconduct, 3 U.San Fran.L.Rev. 244, 255-256 (1969).
10
In addition to advancing these general interests, the confidentiality requirement can be said to facilitate the work of the commissions in several practical respects. When removal or retirement is justified by the charges, judges are more likely to resign voluntarily or retire without the necessity of a formal proceeding if the publicity that would accompany such a proceeding can thereby be avoided.7 Of course, if the cha ges become public at an early stage of the investigation, little would be lost—at least from the judge's perspective—by the commencement of formal proceedings. In the more common situation, where the alleged misconduct is not of the magnitude to warrant removal or even censure, the confidentiality of the proceedings allows the judge to be made aware of minor complaints which may appropriately be called to his attention without public notice. See Braithwaite, supra, at 162-163.
11
Acceptance of the collective judgment that confidentiality promotes the effectiveness of this mode of scrutinizing judicial conduct and integrity, however, marks only the beginning of the inquiry. Indeed, Landmark does not challenge the requirement of confidentiality, but instead focuses its attack on the determination of the Virginia Legislature, as construed by the Supreme Court, that the "divulging" or "publishing" of information concerning the work of the Commission by third parties, not themselves involved in the proceedings, should be criminally punishable. Unlike the generalized mandate of confidentiality, the imposition of criminal sanctions for its breach is not a common characteristic of the state plans; indeed only Virginia and Hawaii appear to provide criminal sanctions for disclosure.8
III
12
The narrow and limited question presented, then, is whether the First Amendment permits the criminal punishment of third persons who are strangers to the inquiry, including the news media, for divulging or publishing truthful information regarding confidential proceedings of the Judicial Inquiry and Review Commission.9 We are not here concerned with the possible applicability of the statute to one who secures the information by illegal means and thereafter divulges it. We do not have before us any constitutional challenge to a State's power to keep the Commission's proceedings confidential or to punish participants for breach of this mandate.10 Cf. Nebraska Press Assn. v. Stuart, 427 U.S. 539, 564, 96 S.Ct. 2791, 2805, 49 L.Ed.2d 683 (1976); id., at 601 n.27, 96 S.Ct., at 2823 n.27 (Brennan, J., concurring in judgment); Wood v. Georgia, 370 U.S. 375, 393-394, 82 S.Ct. 1364, 8 L.Ed.2d 569 (1962). Nor does Landmark argue for any constitutionally compelled right of access for the press to those proceedings. Cf. Saxbe v. Washington Post Co., 417 U.S. 843, 94 S.Ct. 2811, 41 L.Ed.2d 514 (1974); Pell v. Procunier, 417 U.S. 817, 94 S.Ct. 2800, 41 L.Ed.2d 495 (1974). Finally, as the Supreme Court of Virginia held, and appellant does not dispute, the challenged statute does not constitute a prior restraint or attempt by the State to censor the news media.
13
Landmark urges as the dispositive answer to the question presented that truthful reporting about public officials in connection with their public duties is always insulated from the imposition of criminal sanctions by the First Amendment. It points to the solicitude accorded even untruthful speech when public officials are its subjects, see, e. g., New York Times Co. v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964), and the extension of First Amendment protection to the dissemination of truthful commercial information, see, e. g., Virginia State Board of Pharmacy v. Virginia Citizens Consumer Council, 425 U.S. 748, 96 S.Ct. 1817, 48 L.Ed.2d 346 (1976); Linmark Associates, Inc. v. Township of Willingboro, 431 U.S. 85, 97 S.Ct. 1614, 52 L.Ed.2d 155 (1977), to support its contention. We find it unnecessary to adopt this categorical approach to resolve the issue before us. We conclude that the publication Virginia seeks to punish under its statute lies near the core of the First Amendment, and the Commonwealth's interests advanced by the imposition of criminal sanctions are insufficient to justify the actual and potential encroachments on freedom of speech and of the press which follow therefrom. See, e. g., Buckley v. Valeo, 424 U.S. 1, 64-65, 96 S.Ct. 612, 656, 46 L.Ed.2d 659 (1976).
A.
14
In Mills v. Alabama, 384 U.S. 214, 218, 86 S.Ct. 1434, 1437, 16 L.Ed.2d 484 (1966), this Court observed: "Whatever differences may exist about interpretations of the First Amendment, there is practically universal agreement that a major purpose of that Amendment was to protect the free discussion of governmental affairs."11 Although it is assumed that judges will ignore the public clamor or media reports and editorials in reaching their decisions and by tradition will not respond to public commentary, the law gives "[j]udges as persons, or courts as institutions . . . no greater immunity from criticism than other persons or institutions." Bridges v. California, 314 U.S. 252, 289, 62 S.Ct. 190, 206, 86 L.Ed. 192 (1941) (Frankfurter, J., dissenting). The operations of the courts and the judicial conduct of judges are matters of utmost public concern.
15
"A responsible press has always been regarded as the handmaiden of effective judicial administration . . . . Its function in this regard is documented by an impressive record of service over several centuries. The press does not simply publish information about trials but guards against the miscarriage of justice by subjecting the police, prosecutors, and judicial processes to extensive public scrutiny and criticism." Sheppard v. Maxwell, 384 U.S. 333, 350, 86 S.Ct. 1507, 1515, 16 L.Ed.2d 600 (1966).
16
Cf. Cox Broadcasting Corp. v. Cohn, 420 U.S. 469, 492, 95 S.Ct 1029, 1044 43 L.Ed.2d 328 (1975).
17
The operation of the Virginia Commission, no less than the operation of the judicial system itself, is a matter of public interest, necessarily engaging the attention of the news media. The article published by Landmark provided accurate factual information about a legislatively authorized inquiry pending before the Judicial Inquiry and Review Commission, and in so doing clearly served those interests in public scrutiny and discussion of governmental affairs which the First Amendment was adopted to protect. See New York Times Co. v. Sullivan, supra, 376 U.S., at 269-270, 84 S.Ct., at 720.
B
18
The Commonwealth concedes that "[w]ithout question the First Amendment seeks to protect the freedom of the press to report and to criticize judicial conduct," Brief for Appellee 17, but it argues that such protection does not extend to the publication of information "which by Constitutional mandate is to be confidential." Ibid. Our recent decision in Cox Broadcasting Corp. v. Cohn, supra, is relied upon to support this interpretation of the scope of the freedom of speech and press guarantees. As we read Cox, it does not provide the answer to the question now confronting us. Our holding there was that a civil action against a television station for breach of privacy could not be maintained consistently with the First Amendment when the station had broadcast only information which was already in the public domain. "At the very least, the First and Fourteenth Amendments will not allow exposing the press to liability for truthfully publishing information released to the public in official court records." 420 U.S., at 496, 95 S.Ct., at 1047. The broader question—whether the publication of truthful information withheld by law from the public domain is similarly privileged—was not reached and indeed was explicitly reserved in Cox. Id., at 497 n.27, 95 S.Ct., at 1047 n.27. We need not address all the implications of that question here, but only whether in the circumstances of this case Landmark's publication is protected by the First Amendment.
19
The Commonwealth also focuses on what it perceives to be the pernicious effects of public discussion of Commission proceedings to support its argument. It contends that the public interest is not served by discussion of unfounded allegations of misconduct which defames honest judges and serves only to demean the administration of justice. The functioning of the Commission itself is also claimed to be impeded by premature disclosure of the complainant, witnesses, and the judge under investigation. Criminal sanctions minimize these harmful consequences, according to the Commonwealth, by ensuring that the guarantee of confidentiality is more than an empty promise.
20
It can be assumed for purposes of decision that confidentiality of Commission proceedings serves legitimate state interests. The question, however, is whether these interests are sufficient to justify the encroachment on First Amendment guarantees which the imposition of criminal sanctions entails with respect to nonparticipants such as Landmark. The Commonwealth has offered little more than assertion and conjecture to support its claim that without criminal sanctions the objectives of the statutory scheme would be seriously undermined. While not dispositive, we note that more than 40 States having similar commissions have not found it necessary to enforce confidentiality by use of criminal sanctions against nonparticipants.12
21
Moreover, neither the Commonwealth's interest in protecting the reputation of its judges, nor its interest in maintaining the institutional integrity of its courts is sufficient to justify the subsequent punishment of speech at issue here, even on the assumption that criminal sanctions do in fact enhance the guarantee of confidentiality. Admittedly, the Commonwealth has an interest in protecting the good repute of its judges, like that of all other public officials. Our prior cases have firmly established, however, that injury to official reputation is an insufficient reason "for repressing speech that would otherwise be free." New York Times Co. v. Sullivan, 376 U.S., at 272-273, 84 S.Ct., at 722. See also Garrison v. Louisiana, 379 U.S. 64, 67, 85 S.Ct. 209, 212, 13 L.Ed.2d 125 (1964). The remaining interest sought to be protected, the institutional reputation of the courts, is entitled to no greater weight in the constitutional scales. See New York Times Co. v. Sullivan, supra. As Mr. Justice Black observed in Bridges v. California, 314 U.S., at 270-271, 62 S.Ct., at 197:
22
"The assumption that respect for the judiciary can be won by shielding judges from published criticism wrongly appraises the character of American public opinion. . . . [A]n enforced silence, however limited, solely in the name of preserving the dignity of the bench, would probably engender resentment, suspicion, and contempt much more than it would enhance respect."
23
Mr. Justice Frankfurter, in his dissent in Bridges, agreed that speech cannot be punished when the purpose is simply "to protect the court as a mystical entity or the judges as individuals or as annointed priests set apart from the community and spared the criticism to which in a democracy other public servants are exposed." Id., at 291-292, 62 S.Ct., at 208.
24
The Commonwealth has provided no sufficient reason for disregarding these well-established principles. We find them controlling and, on this record, dispositive.
IV
25
The Supreme Court of Virginia relied on the clear-and-present-danger test in rejecting Landmark's claim. We question the relevance of that standard here; moreover we cannot accept the mechanical application of the test which led that court to its conclusion. Mr. Justice Holmes' test was never intended "to express a technical legal doctrine or to convey a formula for adjudicating cases." Pennekamp v. Florida, 328 U.S. 331, 353, 66 S.Ct. 1029, 1040, 90 L.Ed. 1295 (1946) (Frankfurter, J., concurring). Properly applied, the test requires a court to make its own inquiry into the imminence and magnitude of the danger said to flow from the particular utterance and then to balance the character of the evil, as well as its likelihood, against the need for free and unfettered expression. The possibility that other measures will serve the State's interests should also be weighed.
26
Landmark argued in the Supreme Court of Virginia that "before a state may punish expression, it must prove by 'actual facts' the existence of a clear and present danger to the orderly administration of justice." 217 Va., at 706, 233 S.E.2d, at 125. The court acknowledged that the record before it was devoid of such "actual facts," but went on to hold that such proof was not required when the legislature itself had made the requisite finding "that a clear and present danger to the orderly administration of justice would be created by divulgence of the confidential proceedings of the Commis ion." Id., at 708, 233 S.E.2d, at 126. This legislative declaration coupled with the stipulated fact that Landmark published the disputed article was regarded by the court as sufficient to justify imposition of criminal sanctions.
27
Deference to a legislative finding cannot limit judicial inquiry when First Amendment rights are at stake. In Pennekamp v. Florida, supra, 328 U.S. 331, at 335, 66 S.Ct. 1029, at 1031, 90 L.Ed.2d 1295, Mr. Justice Reed observed that this Court is
28
"compelled to examine for [itself] the statements in issue and the circumstances under which they were made to see whether or not they do carry a threat of clear and present danger to the impartiality and good order of the courts or whether they are of a character which the principles of the First Amendment, as adopted by the Due Process Clause of the Fourteenth Amendment, protect."
29
Mr. Justice Brandeis was even more pointed in his concurrence in Whitney v. California, 274 U.S. 357, 378-379, 47 S.Ct. 641, 649, 71 L.Ed. 1095 (1927):
30
"[A legislative declaration] does not preclude enquiry into the question whether, at the time and under the circumstances, the conditions existed which are essential to validity under the Federal Constitution. . . . Whenever the fundamental rights of free speech and assembly are alleged to have been invaded, it must remain open to a defendant to present the issue whether there actually did exist at the time a clear danger; whether the danger, if any, was imminent; and whether the evil apprehended was one so substantial as to justify the stringent restriction interposed by the legislature."
31
A legislature appropriately inquires into and may declare the reasons impelling legislative action but the judicial function commands analysis of whether the specific conduct charged falls within the reach of the statute and if so whether the legislation is consonant with the Constitution. Were it otherwise, the scope of freedom of speech and of the press would be subject to legislative definition and the function of the First Amendment as a check on legislative power would be nullified.
32
It was thus incumbent upon the Supreme Court of Virginia to go behind the legislative determination and examine for itself "the particular utteranc[e] here in question and the circumstances of [its] publication to determine to what extent the substantive evil of unfair administration of justice was a likely consequence, and whether the degree of likelihood was sufficient to justify [subsequent] punishment." Bridges v. California, 314 U.S., at 271, 62 S.Ct., at 198. Our precedents leave little doubt as to the proper outcome of such an inquiry.
33
In a series of cases raising the question of whether the contempt power could be used to punish out-of-court comments concerning pending cases or grand jury investigations, this Court has consistently rejected the argument that such commentary constituted a clear and present danger to the administration of justice. See Bridges v. California, supra; Penne- kamp v. Florida, supra; Craig v. Harney, 331 U.S. 367, 67 S.Ct. 1249, 91 L.Ed. 1546 (1947); Wood v. Georgia, 370 U.S. 375, 82 S.Ct. 1364, 8 L.Ed.2d 569 (1962). What emerges from these cases is the "working principle that the substantive evil must be extremely serious and the degree of imminence extremely high before utterances can be punished," Bridges v. California, supra, at 263, 62 S.Ct., at 194, and that a "solidity of evidence," Pennekamp v. Florida, supra, at 347, 66 S.Ct., at 1038 is necessary to make the requisite showing of imminence. "The danger must not be remote or even probable; it must immediately imperil." Craig v. Harney, supra, at 376, 67 S.Ct., at 1255.
34
The efforts of the Supreme Court of Virginia to distinguish those cases from this case are unpersuasive. The threat to the administration of justice posed by the speech and publications in Bridges, Pennekamp, Craig, and Wood was, if an thing, more direct and substantial than the threat posed by Landmark's article. If the clear-and-present-danger test could not be satisfied in the more extreme circumstances of those cases, it would seem to follow that the test cannot be met here. It is true that some risk of injury to the judge under inquiry, to the system of justice, or to the operation of the Judicial Inquiry and Review Commission may be posed by premature disclosure, but the test requires that the danger be "clear and present" and in our view the risk here falls far short of that requirement. Moreover, much of the risk can be eliminated through careful internal procedures to protect the confidentiality of Commission proceedings.13 Cf. Nebraska Press Assn. v. Stuart, 427 U.S., at 564, 96 S.Ct., at 2805; id., at 601 n.27, 96 S.Ct., at 2823 n.27 (Brennan, J., concurring in judgment). In any event, we must conclude as we did in Wood v. Georgia, that "[t]he type of 'danger' evidenced by the record is precisely one of the types of activity envisioned by the Founders in presenting the First Amendment for ratification." 370 U.S., at 388, 82 S.Ct., at 1372.
35
Accordingly, the judgment of the Supreme Court of Virginia is reversed, and the case remanded for further proceedings not inconsistent with this opinion.14
36
Reversed and remanded.
37
Mr. Justice BRENNAN and Mr. Justice POWELL took no part in the consideration or decision of this case.
APPENDIX TO OPINION OF THE COURT
38
A total of 49 jurisdictions now have some mechanism for inquiring into judicial disability and conduct. With the one exception of Puerto Rico, all of the remaining jurisdictions impose some requirement of confidentiality through constitutional, statutory, or administrative provisions. The relevant provisions are listed below:
39
Alabama: Const. Amdt. No. 328, § 6.17 (1977), Rule 5 of Rules of Procedure of the Judicial Inquiry Commission; Alaska: Stat.Ann. § 22.30.060 (1977), Rule 2 of the Commission on Judicial Qualifications; Arizona: Const., Art. 6.1, § 5, Rule 10 of the Rules of Procedure for the Commission on Judicial Qualifications; Arkansas: Stat.Ann. §§ 22-145(f) and 22-1004(b) (Supp. 1977); California: Const., Art. 6, § 18(f), Rule 902 of Title III (Miscellaneous Rules) Div. I (Rules for Censure, Removal, Retirement or Private Admonishment of Judges); Colorado: Const., Art. 6, § 23(3)(d), Rule 3 of Rules of Procedure of the Commission on Judicial Qualifications; Connecticut: Gen.Stat. §§ 51c, 51d (1977), and § 6 of 1977 Pub.Act 77-494; Delaware: Const., Art. 4, § 37, Rule 10(d) of Rules of Procedure of the Court on the Judiciary; District of Columbia: Code § 11-1528 (1973), Rule 1.4(b) of the Rules and Regulations of the Commission on Judicial Disabilities and Tenure; Florida: Const., Art. 5, § 12(d), Rule 25 of the Judicial Qualifications Commission; Georgia: Const., Art. 6, § 13, ¶ 3, Rule 18 of Rules of the Judicial Qualifications Commission; Hawaii: Rev.Stat. §§ 610-3(a), 610-12(b) (1976), Rule 15 of the Rules of Practice and Procedure of the Commission for Judicial Qualification; Idaho: Code § 1-2103 (Supp. 1977), Rule 24 of the Judicial Council; Illinois: Const., Art. 6, § 15(c), Rule 5 of the Rules of Procedure of the Judicial Inquiry Board; Indiana: Const., Art. 7, § 11, Code § 33-2.1-5-3 (1976), Rule 5 of the Rules of the Judicial Qualifications Commission; Iowa: Code § 605.28 (1977); Kansas: Stat.Ann. § 20-175 (1974), Rule No. 607 of the Rules of the Supreme Court Relating to Judicial Conduct; Kentucky: Rule 4.130 of the Rules of Court; Louisiana: Const., Art. 5, § 25(C), Rule 10 of the Judiciary Commission; Maryland: Const., Art. 4, § 4B(a), Rule 1227 §§ e, r, of the Rules of Procedure; Massachusetts: Rule 3 of the Committe on Judicial Responsibility; Michigan: Const., Art. 6, § 30(2), Rule 932.22 of the Supreme Court Administrative Rules; Minnesota: Stat. § 490.16(5) (1976); Rule § of the Commission on Judicial Standards; Missouri: Rule 12.23 of the Commission on Retirement, Removal and Discipline; Montana: Rev.Codes Ann. § 93-723 (Supp. 1977), Rule 7 of the Judicial Standards Commission; Nebraska: Const., Art. 5, § 30(3), Rev.Stat. § 24.726 (1975), Rule 2 of the Commission on Judicial Qualifications; Nevada: Const., Art. 6, § 21(3), Rule 4 of the Revised Interim Procedural Rules of the Commission on Judicial Discipline; New Hampshire: Rev.Stat.Ann. § 490:4 (Supp. 1975), Rule 28 of the Supreme Court Rules; New Jersey: Rule 2:15-11(e) of the Rules Governing Appellate Practice in the Supreme Court and the Appellate Division of the Superior Court; New Mexico: Const., Art. 6, § 32, Rule 7 of Procedural Rules and Regulations of the Judicial Standards Commission; New York: Jud.Law § 44 (McKinney Supp. 1977); North Carolina: Gen.Stat. § 7A-377(a) (Supp. 1977), Rule 4 of the Judicial Standards Commission; North Dakota: Cent.Code § 27-23-03(5) (Supp. 1977), Rule 4 of the Judicial Qualifications Commissions Ohio: Rule 5(21) of the Supreme Court Rules of Practice; Oklahoma: Stat., Tit. 20, § 1658 (Supp. 1976), Rule 5(C) of the Council on Judicial Complaints; Oregon: Rev.Stat. §§ 1.420(2), 1.440 (1977), Rule 7 of the Rules of Procedure of the Commission on Judicial Fitness; Pennsylvania: Const., Art. 5, § 18(h), Rules 1, 20 of the Rules of Procedure of the Judicial Inquiry and Review Board; Rhode Island: Rule 21 of the Commission on Judicial Tenure and Discipline; South Carolina: Rule 34, Items 11 and 33, of the Rules of the Supreme Court; South Dakota: Const., Art. 5, § 9, Comp.Laws Ann. § 16-1A-4 (Supp. 1977), Rule 4 of the Judicial Qualifications Commission; Tennessee: Code Ann. §§ 17-811(2), 17-813(2) (Supp. 1977); Texas: Const., Art. 5, § 1-a(10), Rule 19 of Rules for the Removal or Retirement of Judges; Utah: Code Ann. § 78-7-30(3) (1977); Vermont: Rule 3 of the Rules of the Supreme Court for Disciplinary Control; Virginia: Const., Art. 6, § 10, Code § 2.1-37.13 (1973), Rule 10 of the Judicial Inquiry and Review Commission; West Virginia: Rules 3 and 5 of the Rules of Procedure for the Handling of Complaints Against Justices, Judges, and Magistrates; Wisconsin: Item 21 of the Code of Judicial Ethics, Rules 2 and 3(4) of the Rules of Procedure of the Judicial Commission; Wyoming: Rule 7 of the Judicial Supervisory Commission.
40
Mr. Justice STEWART, concurring in the judgment.
41
Virginia has enacted a law making it a criminal offense for "any person" to divulge confidential information about proceedings before its Judicial Inquiry and Review Commission. I cannot agree with the Court that this Virginia law violates the Constitution.
42
There could hardly be a higher governmental interest than a State's interest in the quality of its judiciary. Virginia's derivative interest in maintaining the confidentiality of the proceedings of its Judicial Inquiry and Review Commission seems equally clear. Only such confidentiality, the State has determined, will protect upright judges from unjustified harm and at the same time insure the full and fearless airing in Commission proceedings of every complaint of judicial misconduct. I find nothing in the Constitution to prevent Virginia from punishing those who violate this confidentiality. Cf. In re Sawyer, 360 U.S. 622, 646, 79 S.Ct. 1376, 1388, 3 L.Ed.2d 1473 (opinion concurring in result).
43
But in this case Virginia has extended its law to punish a newspaper, and that it cannot constitutionally do. If the constitutional protection of a free press means anything, it means that government cannot take it upon itself to decide what a newspaper may and may not publish. Though government may deny access to information and punish its theft, government may not prohibit or punish the publication o that information once it falls into the hands of the press, unless the need for secrecy is manifestly overwhelming.*
44
It is on this ground that I concur in the judgment of the Court.
1
Article 6, § 10, of the Constitution of Virginia provides in relevant part:
"The General Assembly shall create a Judicial Inquiry and Review Commission consisting of members of the judiciary, the bar, and the public and vested with the power to investigate charges which would be the basis for retirement, censure, or removal of a judge. The Commission shall be authorized to conduct hearings and to subpoena witnesses and documents. Proceedings before the Commission shall be confidential."
Virginia Code § 2.1-37.13 (1973) implements the constitutional mandate of confidentiality. It provides in relevant part:
"All papers filed with and proceedings before the Commission, and under the two preceding sections (§§ 2.1-37.11, 2.1-37.12), including the identification of the subject judge as well as all testimony and other evidence and any transcript thereof made by a reporter, shall be confidential and shall not be divulged by any person to anyone except the Commission, except that the record of any proceeding filed with the Supreme Court shall lose its confidential character.
* * * * *
"Any person who shall divulge information in violation of the provisions of this section shall be guilty of a misdemeanor."
Rule 10 of the Rules of the Commission is to the same effect:
"All papers filed with and all proceedings before the Commission are confidential pursuant to § 2.1-37.13, Code of Virginia (1950), that the same shall not be divulged, and a violation thereof is a misdemeanor and punishable as provided by law."
2
Upon the filing of a complaint with the Supreme Court of Virginia, the records of the proceedings before the Commission lose their confidential character. Va.Code § 2.1-37.13 (1973).
3
Eight days after the decision of the Supreme Court of Virginia, the United States District Court for the Eastern District of Virginia issued a temporary injunction restraining prosecution of Richmond television station WXEX for violation of the same Virginia law under which Landmark was prosecuted. Nationwide Communications, Inc. v. Backus, No. 77-0139-R (Mar. 15, 1977). Thereafter, Richmond Newspapers, Inc., the publisher of two Richmond, Va., newspapers, was also charged under § 2.1-37.13. On April 5, 1977, the District Court denied the publisher's motion to enjoin the pending prosecution and a conviction for two violations of the statute resul ed. Upon conclusion of the case, the District Court enjoined further prosecution of the publisher under the statute. Appellant then secured a temporary restraining order against further prosecution under the statute for the limited purpose of allowing it to publish an Associated Press story about a current Commission investigation which the Richmond newspapers were free to publish because of the court order shielding them from prosecution. Landmark Communications, Inc. v. Campbell, No. 77-404-N (ED Va., June 17, 1977). The temporary restraining order expired on June 20, 1977.
4
Several bills are also pending in Congress providing for somewhat similar inquiry into the conduct of federal judges. See, e. g., H.R. 1850, 95th Cong., 1st Sess. (1977); H.R. 9042, 95th Cong., 1st Sess. (1977); S. 1423, 95th Cong., 1st Sess. (1977).
5
The relevant state constitutional provisions, statutes, and court rules are listed as an appendix to this opinion. Confidentiality of proceedings is also an integral aspect of the proposals currently pending in Congress. See H.R. 1850, supra, § 382; H.R. 9042, supra, § 382; S. 1423, supra, § 381. None of these bills impose criminal sanctions for a breach of the confidentiality requirement.
6
According to appellee, under the Virginia plan, the name of the complainant as such is never revealed to the judge under investigation even when a complaint is filed with the Supreme Court. All complaints other than the original are filed in the name of the Commission; the original complaint is not made a part of any public record. The identity of the witnesses heard by the Commission, however, would presumably be a part of the Commission's records which are made public if a complaint is filed with the Supreme Court.
7
"The experience in California has been that not less than two or three judges a year have either retired or resigned voluntarily, rather than to confront the particular charges that are made. . . . The important thing is that [these cases] are closed without any public furor, or without any harm done to the judiciary, because the existence and the procedures of the commission has caused the judge himself to recognize the situation that exists and to avail himself of retirement." Hearings on S. 1110 before the Subcommittee on Improvements in Judicial Machinery of the Senate Committee on the Judiciary, 94th Cong., 2d Sess., 120 (1976) (testimony of Jack E. Frankel, Executive Officer of the California Commission on Judicial Qualifications).
8
Hawaii Rev.Stat. § 610-3(b) (1976), provides in relevant part:
"Any commission member or individual . . . who divulges information concerning the charge prior to the certification of the charge by the commission . . . shall be guilty of a felony which shall be punishable by a fine of not more than $5000 or imprisonment of not more than five years, or both."
9
Landmark argued below that the statute was unclear with regard to whether the proscription against divulging information concerning a Commission proceeding ap lied to third parties as well as those who actually participated in the proceedings. The Supreme Court of Virginia, over the dissent of Justice Poff, construed the statutory language so as to encompass appellant. Although a contrary construction might well save the statute from constitutional invalidity, "it is not our function to construe a state statute contrary to the construction given it by the highest court of a State." O'Brien v. Skinner, 414 U.S. 524, 531, 94 S.Ct. 740, 744, 38 L.Ed. 2d 702 (1974).
10
At least two categories of "participants" come to mind: Commission members and staff employees, and witnesses or putative witnesses not officers or employees of the Commonwealth. No issue as to either of these categories is presented by this case.
11
The interdependence of the press and the judiciary has frequently been acknowledged. "The freedom of the press in itself presupposes an independent judiciary through which that freedom may, if necessary, be vindicated. And one of the potent means for assuring judges their independence is a free press." Pennekamp v. Florida, 328 U.S. 331, 355, 66 S.Ct. 1029, 1041, 90 L.Ed. 1295 (1946) (Frankfurter, J., concurring).
12
A number of States provide that a breach of the confidentiality requirement by commission members or staff is punishable as contempt. E. g., Rule 4.130(2) of the Kentucky Supreme Court; Rule 3(g) of the Massachusetts Committee on Judicial Responsibility. Other States require witnesses as well as staff and commission members to take an oath of secrecy, violation of which is treated as contempt. E. g., Rule 25(c) of the Florida Judicial Qualifications Commission; Rule S(2) of the Minnesota Board on Judicial Standards (witnesses only); Rule 7(c) of the Procedural Rules and Regulations of the New Mexico Judicial Standards Commission; Rule 1(c) of the Rules of Procedure Governing the Pennsylvania Judicial Inquiry and Review Board (witnesses only). No similar provision relating to the conduct of participants in Commission proceedings is contained in the Rules of the Virginia Judicial Inquiry and Review Commission.
13
See n.12, supra.
14
Appellant also attacks the Virginia statute generally on vagueness and overbreadth grounds. Our resolution of the question presented makes it unnecessary to address these issues.
*
National defense is the most obvious justification for government restrictions on publication. Even then, distinctions must be drawn between prior restraints and subsequent penalties. See, e. g., New York Times Co. v. United States, 403 U.S. 713, 733-737, 91 S.Ct. 2140, 2151-2153, 29 L.Ed.2d 822 (White, J., concurring); Near v. Minnesota ex rel. Olson, 283 U.S. 697, 716, 51 S.Ct. 625, 631, 75 L.Ed. 1357.
| 23
|
436 U.S. 180
98 S.Ct. 1745
56 L.Ed.2d 209
SEARS, ROEBUCK AND CO., Petitioner,v.SAN DIEGO COUNTY DISTRICT COUNCIL OF CARPENTERS.
No. 76-750.
Argued Nov. 7, 1977.
Decided May 15, 1978.
Syllabus
Upon determining that certain carpentry work in petitioner's department store was being done by men who had not been dispatched from its hiring hall, respondent Union established picket lines on petitioner's property. When the Union refused petitioner's demand to remove the pickets, petitioner filed suit in the California Superior Court and obtained a preliminary injunction against the continuing trespass, and the Court of Appeal affirmed. The California Supreme Court reversed, holding that because the picketing was both arguably protected by § 7 of the National Labor Relations Act and arguably prohibited by § 8, state jurisdiction was pre-empted under the guidelines of San Diego Building Trades Council v. Garmon, 359 U.S. 236, 79 S.Ct. 773, 3 L.Ed.2d 775. Held:
1. The reasons why pre-emption of state jurisdiction is normally appropriate when union activity is arguably prohibited by federal law do not apply to this case, and therefore they are insufficient to preclude the State from exercising jurisdiction limited to the trespassory aspects of the Union's picketing. Pp. 190-198.
(a) The critical inquiry is not whether the State is enforcing a law relating specifically to labor relations or one of general application but whether the controversy presented to the state court is identical to or different from that which could have been, but was not, presented to the National Labor Relations Board, for it is only in the former situation that a state court's exercise of jurisdiction necessarily involves a risk of interference with the NLRB's unfair labor practice jurisdiction that the arguably prohibited branch of the Garmon doctrine was designed to avoid. Pp. 190-197.
(b) Here the controversy that petitioner might have presented to the NLRB is not the same as the controversy presented to the state court. Had petitioner filed an unfair labor practice charge with the NLRB, the issue would have been whether the picketing had a recognitional or work-reassignment objective, whereas in the state court petitioner only challenged the location of the picketing. Accordingly, permitting the state court to adjudicate petitioner's trespass claim creates no realistic risk of interference with the NLRB's primary jurisdiction to enforce the statutory prohibition against unfair labor practices. P. 198.
2. Nor does the arguably protected character of the Union's picketing provide a sufficient justification for pre-emption of the state court's jurisdiction over petitioner's trespass claim. Pp. 199-207.
(a) The "primary jurisdiction" rationale of Garmon, requiring that when the same controversy may be presented to the state court or the NLRB, it must be presented to the NLRB, does not provide a sufficient justification for pre-empting state jurisdiction over arguably protected conduct when, as in this case, the party who could have presented the protection issue to the NLRB has not done so and the other party to the dispute has no acceptable means of doing so. Pp. 202-203.
(b) While it cannot be said with certainty that, if the Union had filed an unfair labor practice charge against petitioner, the NLRB would have fixed the locus of the accommodation of petitioner's property rights and the Union's § 7 rights at the unprotected end of the spectrum, it is "arguable" that the Union's peaceful picketing, though trespassory, was protected, but, neverthel ss, permitting state courts to evaluate the merits of an argument that certain trespassory activity is protected does not create an unacceptable risk of interference with conduct that the NLRB, and a court reviewing the NLRB's decision, would find protected. Pp. 203-207.
17 Cal.3d 893, 132 Cal.Rptr. 443, 553 P.2d 603, reversed and remanded.
H. Warren Siegel, Alhambra, Cal., for petitioner.
Jerry J. Williams, Los Angeles, Cal., for respondent.
Mr. Justice STEVENS delivered the opinion of the Court.
1
The question in this case is whether the National Labor Relations Act, as amended,1 deprives a state court of the power to entertain an action by an employer to enforce state trespass laws against picketing which is arguably—but not definitely—prohibited or protected by federal law.
2
* On October 24, 1973, two business representatives of respondent Union visited the department store operated by petitioner (Sears) in Chula Vista, Cal., and determined that certain carpentry work was being performed by men who had not been dispatched from the Union hiring hall. Later that day, the Union agents met with the store manager and requested that Sears either arrange to have the work performed by a contractor who employed dispatched carpenters or agree in writing to abide by the terms of the Union's master labor agreement with respect to the dispatch and use of carpenters. The Sears manager stated that he would consider the request, but he never accepted or rejected it.
3
Two days later the Union established picket lines on Sears' property. The store is located in the center of a large rectangular lot. The building is surrounded by walkways and a large parking area. A concrete wall at one end separates the lot from residential property; the other three sides adjoin public sidewalks which are adjacent to the public streets. The pickets patrolled either on the privately owned walkways next to the building or in the parking area a few feet away. They carried signs indicating that they were sanctioned by the "Carpenters Trade Union." The picketing was peaceful and orderly.
4
Sears' security manager demanded that the Union remove the pickets from Sears' property. The Union refused, stating that the pickets would not leave unless forced to do so by legal action. On October 29, Sears filed a verified complaint in the Superior Court of California seeking an injunction against the continuing trespass; the court entered a temporary restraining order enjoining the Union from picketing on Sears' property. The Union promptly removed the pickets to the public sidewalks.2 On November 21, 1973, after hearing argument on the question whether the Union's picketing on Sears' property was protected by state or federal law, the court entered a preliminary injunction.3 The California Court of Appeal affirmed. While acknowledging the pre-emption guidelines set forth in San Diego Building Trades Council v. Garmon, 359 U.S. 236, 79 S.Ct. 773, 3 L.Ed.2d 775,4 the court held that the Union's continuing trespass fell within the longstanding exception for conduct which touched interests so deeply rooted in local feeling and responsibility that pre-emption could not be inferred in the absence of clear evidence of congressional intent.5
5
The Supreme Court of California reversed. 17 Cal.3d 893, 132 Cal.Rptr. 443, 553 P.2d 603. It concluded that the picketing was arguably protected by § 7 of the Act, 29 U.S.C. § 157, because it was intended to secure work for Union members and to publicize Sears' undercutting of the prevailing area standards for the employment of carpenters. The court reasoned that the trespassory character of the picketing did not disqualify it from arguable protection, but was merely a factor which the National Labor Relations Board would consider in determining whether or not it was in fact protected. The court also considered it "arguable" that the Union had engaged in recognitional picketing subject to § 8(b)(7)(C) of the Act, 29 U.S.C. § 158(b)(7)(C), which could not continue for more than 30 days without petitioning for a representation election. Because the picketing was both arguably protected by § 7 and arguably prohibited by § 8, the court held that state jurisdiction was pre-empted under the Garmon guidelines.
6
Since the Wagner Act was passed in 1935, this Court has not decided whether, or under what circumstances, a state court has power to enforce local trespass laws against a union's peaceful picketing.6 The obvious importance of this problem led us to grant certiorari in this case. 430 U.S. 905, 97 S.Ct. 1172, 51 L.Ed.2d 580.7
II
7
We start from the premise that the Union's picketing on Sears' property after the request to leave was a continuing trespass in violation of state law.8 We note, however, that the scope of the controversy in the state court was limited. Sears asserted no claim that the picketing itself violated any state or federal law. It sought simply to remove the pickets from its property to the public walkways, and the injunction issued by the state court was strictly confined to the relief sought. Thus, as a matter of state law, the location of the picketing was illegal but the picketing itself was unobjectionable.
8
As a matter of federal law, the legality of the picketing was unclear. Two separate theories would support an argument by Sears that the picketing was prohibited by § 8 of the NLRA, and a third theory would support an argument by the Union that the picketing was protected by § 7. Under each of these theories the Union's purpose would be of critical importance.
9
If an object of the picketing was to force Sears into assigning the carpentry work away from its employees to Union members dispatched from the hiring hall, the picketing may have been prohibited by § 8(b)(4)(D).9 Alternatively, if an object of the picketing was to coerce Sears into signing a prehire or members-only type agreement with the Union, the picketing was at least arguably subject to the prohibition on recognitional picketing contained in § 8(b)(7)(C).10 Hence, if Sears had filed an unfair labor practice charge against the Union, the Board's concern would have been limited to the question whether the Union's picketing had an objective proscribed by the Act; the location of the picketing would have been irrelevant.
10
On the other hand, the Union contends that the sole objective of its action was to secure compliance by Sears with area standards, and therefore the picketing was protected by § 7. Longshoremen v. Ariadne Shipping Co., 397 U.S. 195, 90 S.Ct. 872, 25 L.Ed.2d 218. Thus, if the Union had filed an unfair labor practice charge under § 8(a)(1) when Sears made a demand that the pickets leave its property it is at least arguable that the Board would have found Sears guilty of an unfair labor practice.
11
Our second premise, therefore, is that the picketing was both arguably prohibited and arguably protected by federal law. The case is not, however, one in which "it is clear or may fairly be assumed" that the subject matter which the state court sought to regulate—that is, the location of the picketing—is either prohibited or protected by the Federal Act.
III
12
In San Diego Building Trades Council v. Garmon, 359 U.S. 236, 79 S.Ct. 773, 3 L.Ed.2d 775, the Court made two statements which have come to be accepted as the general guidelines for deciphering the unexpressed intent of Congress regarding the permissible scope of state regulation of activity touching upon labor-management relations. The first related to activity which is clearly protected or prohibited by the federal statute.11 The second articulated a more sweeping prophylactic rule:
13
"When an activity is arguably subject to § 7 or § 8 of the Act, the States as well as the federal courts must defer to the exclusive competence of the National Labor Relations Board if the danger of state interference with national policy is to be averted." Id., at 245, 79 S.Ct., at 780.
14
While the Garmon formulation accurately reflects the basic federal concern with potential state interference with national labor policy, the history of the labor pre-emption doctrine in this Court does not support an approach which sweeps away state-court jurisdiction over conduct traditionally subject to state regulation without careful consideration of the relative impact of such a jurisdictional bar on the various interests affected.12 As the Court noted last Term:
15
"Our cases indicate . . . that inflexible application of the doctrine is to be avoided, especially where the State has a substantial interest in regulation of the conduct at issue and the State's interest is one that does not threaten undue interference with the federal regulatory scheme." Farmer v. Carpenters, 430 U.S. 290, 302, 97 S.Ct. 1056, 1064, 51 L.Ed.2d 338.
16
Thus the Court has refused to apply the Garmon guidelines in a literal, mec anical fashion.13 This refusal demonstrates that "the decision to pre-empt . . . state court jurisdiction over a given class of cases must depend upon the nature of the particular interests being asserted and the effect upon the administration of national labor policies" of permitting the state court to proceed. Vaca v. Sipes, 386 U.S. 171, 180, 87 S.Ct. 903, 911, 17 L.Ed.2d 842.14
17
With this limitation in mind, we turn to the question whether pre-emption is justified in a case of this kind under either the arguably protected or the arguably prohibited branch of the Garmon doctrine. While the considerations underlying the two categories overlap, they differ in significant respects and therefore it is useful to review them separately. We therefore first consider whether the arguable illegality of the picketing as a matter of federal law should oust the state court of jurisdiction to enjoin its trespassory aspects. Thereafter, we consider whether the arguably protected character of the picketing should have that effect.
IV
18
The enactment of the NLRA in 1935 marked a fundamental change in the Nation's labor policies. Congress expressly recognized that collective organization of segments of the labor force into bargaining units capable of exercising economic power comparable to that possessed by employers may produce benefits for the entire economy in the form of higher wages, job security, and improved working conditions. Congress decided that in the long run those benefits would outweigh the occasional costs of industrial strife associated with the organization of unions and the negotiation and enforcement of collective-bargaining agreements. The earlier notion that union activity was a species of "conspiracy" and that strikes and picketing were examples of unreasonable restraints of trade was replaced by an unequivocal national declaration of policy establishing the legitimacy of labor unionization and encouraging the practice of collective bargaining.15
19
The new federal statute protected the collective-bargaining activities of employees and their representatives and created a regulatory scheme to be administered by an independent agency which would develop experience and expertise in the labor relations area. The Court promptly decided that the federal agency's power to implement the policies of the new legislation was exclusive and the States were without power to enforce overlapping rules.16 Accordingly, attempts to apply provisions of the "Little Wagner Acts" enacted by New York17 and Wisconsin18 were held to be pre-empted by the potential conflict with the federal regulatory scheme. Consistently with these holdings, the Court also decided that a State's employment relations board had no power to grant relief for violation of the federal statute.19 The interest in uniform development of the new national labor policy required that matters which fell squarely within the regulatory jurisdiction of the federal Board be evaluated in the first instance by that agency.
20
The leading case holding that when an employer grievance against a union may be presented to the National Labor Relations Board it is not subject to litigation in a state tribunal is Garner v. Teamsters, 346 U.S. 485, 74 S.Ct. 161, 98 L.Ed. 228. Garner involved peaceful organizational picketing which arguably violated § 8(b)(2) of the federal Act.20 A Pennsylvania equity court held that the picketing violated the Pennsylvania Labor Relations Act and therefore shou d be enjoined. The State Supreme Court reversed because the union conduct fell within the jurisdiction of the National Labor Relations Board to prevent unfair labor practices.
21
This Court affirmed because Congress had "taken in hand this particular type of controversy . . . [i]n language almost identical to parts of the Pennsylvania statute," 346 U.S., at 488, 74 S.Ct., at 165. Accordingly, the State, through its courts, was without power to "adjudge the same controversy and extend its own form of relief." Id., at 489, 74 S.Ct. at 165. This conclusion did not depend on any surmise as to "how the National Labor Relations Board might have decided this controversy had petitioners presented it to that body." Ibid. The precise conduct in controversy was arguably prohibited by federal law and therefore state jurisdiction was pre-empted. The reason for pre-emption was clearly articulated:
22
"Congress evidently considered that centralized administration of specially designed procedures was necessary to obtain uniform application of its substantive rules and to avoid these diversities and conflicts likely to result from a variety of local procedures and attitudes toward labor controversies. Indeed, Pennsylvania passed a statute the same year as its labor relations Act reciting abuses of the injunction in labor litigations attributable more to procedure and usage than to substantive rules. A multiplicity of tribunals and a diversity of procedures are quite as apt to produce incompatible or conflicting adjudications as are different rules of substantive law. The same reasoning which prohibits federal courts from intervening in such cases, except by way of review or on application of the federal Board, precludes state courts from doing so. Cf. Myers v. Bethlehem Shipbuilding Corp., 303 U.S. 41, 58 S.Ct. 459, 82 L.Ed. 638; Amalgamated Utility Workers v. Consolidated Edison Co., 309 U.S. 261, 60 S.Ct. 561, 84 L.Ed. 738." Id., at 490-491, 74 S.Ct., at 166 (footnote omitted). "The conflict lies in remedies . . . . [W]hen two separate remedies are brought to bear on the same activity, a conflict is imminent." Id., at 498-499, 74 S.Ct., at 170.
23
This reasoning has its greatest force when applied to state laws regulating the relations between employees, their union, and their employer.21 It may also apply to certain laws of general applicability which are occasionally invoked in connection with a labor dispute.22 Thus, a State's antitrust law may not be invoked to enjoin collective activity which is also arguably prohibited by the federal Act. Capital Service, Inc. v. NLRB, 347 U.S. 501, 74 S.Ct. 699, 98 L.Ed. 887; Weber v. Anheuser-Busch, Inc., 348 U.S. 468, 75 S.Ct. 480, 99 L.Ed. 546.23 In each case, the pertinent inquiry is whether the two potentially conflicting statutes were "brought to bear on precisely the same conduct." Id., at 479, 75 S.Ct., at 487.24
24
On the other hand, the Court has allowed a State to enforce certain laws of general applicability even though aspects of the challenged conduct were arguably prohibited by § 8 of the NLRA. Thus, for example, the Court has upheld state-court jurisdiction over conduct that touches "interests so deeply rooted in local feeling and responsibility that, in the absence of compelling congressional direction, we could not infer that Congress had deprived the States of the power to act." San Diego Building Trades Council v. Garmon, 359 U.S., at 244, 79 S.Ct., at 779. See Construction Workers v. Laburnum Constr. Corp., 347 U.S. 656, 74 S.Ct. 833, 98 L.Ed. 1025 (threats of violence); Youngdahl v. Rainfair, Inc., 355 U.S. 131, 78 S.Ct. 206, 2 L.Ed.2d 151 (violence); Automobile Workers v. Russell, 356 U.S. 634, 78 S.Ct. 932, 2 L.Ed.2d 1030 (violence); Linn v. Plant Guard Workers, 383 U.S. 53, 86 S.Ct. 657, 15 L.Ed.2d 582 (libel); Farmer v. Carpenters, 430 U.S. 290, 97 S.Ct. 1056, 51 L.Ed.2d 338 (intentional infliction of mental distress).
25
In Farmer, the Court held that a union member, who alleged that his union had engaged in a campaign of personal abuse and harassment against him, could maintain an action for damages against the union and its officers for the intentional infliction of emotional distress. One aspect of the alleged campaign was discrimination by the union in hiring hall referrals. Although such discrimination was arguably prohibited by §§ 8(b)(1)(A) and 8(b)(2) of the NLRA and therefore an unfair labor practice charge could have been filed with the Board, the Court permitted the state action to proceed.
26
The Court identified those factors which warranted a departure from the general pre-emption guidelines in the "local interest" cases. Two are relevant to the arguably prohibited branch of the Garmon doctrine.25 First, there existed a significant state interest in protecting the citizen from the challenged conduct. Second, although the challenged conduct occurred in the course of a labor dispute and an unfair labor practice charge could have been filed, the exercise of state jurisdiction over the tort claim entailed little risk of interference with the regulatory jurisdiction of the Labor Board. Although the arguable federal violation and the state tort arose in the same factual setting, the respective controversies presented to the state and federal forums would not have been the same.26
27
The critical inquiry, therefore, is not whether the State is enforcing a law relating specifically to labor relations or one of general application but whether the controversy presented to the state court is identical to (as in Garner ) or different from (as in Farmer ) that which could have been, but was not, presented to the Labor Board. For it is only in the former situation that a state court's exercise of jurisdiction necessarily involves a risk of interference with the unfair labor practice jurisdiction of the Board which the arguably prohibited branch of the Garmon doctrine was designed to avoid.27
28
In the present case, the controversy which Sears might have presented to the Labor Board is not the same as the controversy presented to the state court. If Sears had filed a charge, the federal issue would have been whether the picketing had a recognitional or work-reassignment objective; decision of that issue would have entailed relatively complex factual and legal determinations completely unrelated to the simple question whether a trespass had occurred.28 Conversely, in the state action, Sears only challenged the location of the picketing; whether the picketing had an objective proscribed by federal law was irrelevant to the state claim. Accordingly, permitting the state court to adjudicate Sears' trespass claim would create no realistic risk of interference with the Labor Board's primary jurisdiction to enforce the statutory prohibition against unfair labor practices.
29
The reasons why pre-emption of state jurisdiction is normally appropriate when union activity is arguably prohibited by federal law plainly do not apply to this situation; they therefore are insufficient to preclude a State from exercising jurisdiction limited to the trespassory aspects of that activity.
V
30
The question whether the arguably protected character of the Union's trespassory picketing provides a sufficient justification for pre-emption of the state court's jurisdiction over Sears' trespass claim involves somewhat different considerations.
31
Apart from notions of "primary jurisdiction,"29 there would be no objection to state courts' and the NLRB's exercising concurrent jurisdiction over conduct prohibited by the federal Act. But there is a constitutional objection to state-court interference with conduct actually protected by the Act.30 Considerations of federal supremacy, therefore, are implicated to a greater extent when labor-related activity is protected than when it is prohibited. Nevertheless, several considerations persuade us that the mere fact that the Union's trespass was arguably protected is insufficient to deprive the state court of jurisdiction in this case.
32
The first is the relative unimportance in this context of the "primary jurisdiction" rationale articulated in Garmon. In theory, of course, that rationale supports pre-emption regardless of which section of the NLRA is critical to resolving a controversy which may be subject to the regulatory jurisdiction of the NLRB. Indeed, at first blush, the primary-jurisdiction rationale provides stronger support for pre-emption in this case when the analysis is focused upon the arguably protected, rather than the arguably prohibited, character of the Union's conduct. For to the extent that the Union's picketing was arguably protected, there existed a potential overlap between the controversy presented to the state court and that which the Union might have brought before the NLRB.31 Prior to granting any relief from the Union's continuing trespass, the state court was obligated to decide that the trespass was not actually protected by federal law, a determination which might entail an accommodation of Sears' property rights and the Union's § 7 rights. In an unfair labor practice proceeding initiated by the Union, the Board might have been required to make the same accommodation.32
33
Although it was theoretically possible for the accommodation issue to be decided either by the state court or by the Labor Board, there was in fact no risk of overlapping jurisdiction in this case. The primary-jurisdiction rationale justifies pre-emption only in situations in which an aggrieved party has a reasonable opportunity either to invoke the Board's jurisdiction himself or else to induce his adversary to do so. In this case, Sears could not directly obtain a Board ruling on the question whether the Union's trespass was federally protected. Such a Board determination could have been obtained only if the Union had filed an unfair labor practice charge alleging that Sears had interfered with the Union's § 7 right to engage in peaceful picketing on Sears' property. By demanding that the Union remove its pickets from the store's property, Sears in fact pursued a course of action which gave the Union the opportunity to file such a charge. But the Union's response to Sears' demand foreclosed the possi ility of having the accommodation of § 7 and property rights made by the Labor Board; instead of filing a charge with the Board, the Union advised Sears that the pickets would only depart under compulsion of legal process.
34
In the face of the Union's intransigence, Sears had only three options: permit the pickets to remain on its property; forcefully evict the pickets; or seek the protection of the State's trespass laws. Since the Union's conduct violated state law, Sears legitimately rejected the first option. Since the second option involved a risk of violence, Sears surely had the right—perhaps even the duty—to reject it. Only by proceeding in state court, therefore, could Sears obtain an orderly resolution of the question whether the Union had a federal right to remain on its property.
35
The primary-jurisdiction rationale unquestionably requires that when the same controversy may be presented to the state court or the NLRB, it must be presented to the Board. But that rationale does not extend to cases in which an employer has no acceptable method of invoking, or inducing the Union to invoke, the jurisdiction of the Board.33 We are therefore persuaded that the primary-jurisdiction rationale does not provide a sufficient justification for pre-empting state jurisdiction over arguably protected conduct when the party who could have presented the protection issue to the Board has not done so and the other party to the dispute has no acceptable means of doing so.34
36
This conclusion does not, however, necessarily foreclose the possibility that pre-emption may be appropriate. The danger of state interference with federally protected conduct is the principal concern of the second branch of the Garmon doctrine. To allow the exercise of state jurisdiction in c rtain contexts might create a significant risk of misinterpretation of federal law and the consequent prohibition of protected conduct. In those circumstances, it might be reasonable to infer that Congress preferred the costs inherent in a jurisdictional hiatus to the frustration of national labor policy which might accompany the exercise of state jurisdiction. Thus, the acceptability of "arguable protection" as a justification for pre-emption in a given class of cases is, at least in part, a function of the strength of the argument that § 7 does in fact protect the disputed conduct.
37
The Court has held that state jurisdiction to enforce its laws prohibiting violence,35 defamation,36 the intentional infliction of emotional distress,37 or obstruction of access to property38 is not pre-empted by the NLRA. But none of those violations of state law involves protected conduct. In contrast, some violations of state trespass laws may be actually protected by § 7 of the federal Act.
38
In NLRB v. Babcock & Wilcox Co., 351 U.S. 105, 76 S.Ct. 679, 100 L.Ed. 975, for example, the Court recognized that in certain circumstances nonemployee union organizers may have a limited right of access to an employer's premises for the purpose of engaging in organization solicitation.39 And the Court has indicated that Babcock extends to § 7 rights other than organizational activity, though the "locus" of the "accommodation of § 7 rights and private property rights . . . may fall at differing points along the spectrum depending on the nature and strength of the respective § 7 rights and private property rights asserted in any given context." Hudgens v. NLRB, 424 U.S. 507, 522, 96 S.Ct. 1029, 1037, 47 L.Ed.2d 196.
39
For purpose of analysis we must assume that the Union could have proved that its picketing was, at least in the absence of a trespass, protected by § 7. The remaining question is whether under Babcock the trespassory nature of the picketing caused it to forfeit its protected status. Since it cannot be said with certainty that, if the Union had filed an unfair labor practice charge against Sears, the Board would have fixed the locus of the accommodation at the unprotected end of the spectrum, it is indeed "arguable" that the Union's peaceful picketing, though trespassory, was protected. Nevertheless, permitting state courts to evaluate the merits of an argument that certain trespassory activity is protected does not create an unacceptable risk of interference with conduct which the Board, and a court reviewing the Board's decision, would find protected. For while there are unquestionably examples of trespassory union activity in which the question whether it is protected is fairly debatable, experience under the Act teaches that such situations are rare and that a trespass is far more likely to be unprotected than protected.
40
Experience with trespassory organizational solicitation by nonemployees is instructive in this regar . While Babcock indicates that an employer may not always bar nonemployee union organizers from his property, his right to do so remains the general rule. To gain access, the union has the burden of showing that no other reasonable means of communicating its organizational message to the employees exists or that the employer's access rules discriminate against union solicitation.40 That the burden imposed on the union is a heavy one is evidenced by the fact that the balance struck by the Board and the courts under the Babcock accommodation principle has rarely been in favor of trespassory organizational activity.41
41
Even on the assumption that picketing to enforce area standards is entitled to the same deference in the Babcock accommodation analysis as organizational solicitation,42 it would be unprotected in most instances. While there does exist some risk that state courts will on occasion enjoin a trespass that the Board would have protected, the significance of this risk is minimized by the fact that in the cases in which the argument in favor of protection is the strongest, the union is likely to invoke the Board's jurisdiction and thereby avoid the state forum. Whatever risk of an erroneous state-court adjudication does exist is outweighed by the anomalous consequence of a rule which would deny the employer access to any forum in which to litigate either the trespass issue or the protection issue in those cases in which the disputed conduct is least likely to be protected by § 7.
42
If there is a strong argument that the trespass is protected in a particular case, a union can be expected to respond to an employer demand to depart by filing an unfair labor practice charge; the pr tection question would then be decided by the agency experienced in accommodating the § 7 rights of unions and the property rights of employers in the context of a labor dispute. But if the argument for protection is so weak that it has virtually no chance of prevailing, a trespassing union would be well advised to avoid the jurisdiction of the Board and to argue that the protected character of its conduct deprives the state court of jurisdiction.
43
As long as the union has a fair opportunity to present the protection issue to the Labor Board, it retains meaningful protection against the risk of error in a state tribunal. In this case the Union failed to invoke the jurisdiction of the Labor Board,43 and Sears had no right to invoke that jurisdiction and could not even precipitate its exercise without resort to self-help. Because the assertion of state jurisdiction in a case of this kind does not create a significant risk of prohibition of protected conduct, we are unwilling to presume that Congress intended the arguably protected character of the Union's conduct to deprive the California courts of jurisdiction to entertain Sears' trespass action.44
44
The judgment of the Supreme Court of California is therefore reversed, and the case is remanded to that court for further proceedings not inconsistent with this opinion.
45
It is so ordered.
46
Mr. Justice BLACKMUN, concurring.
47
I join the Court's opinion, but add three observations:
48
1. The problem of a no-man's land in regard to trespassory picketing has been a troubling one in the past because employers have been unable to secure a Labor Board adjudication whether the picketing was "actually protected" under § 7 of the National Labor Relations Act except by resorting to self-help to expel the pickets and thereby inducing the union to file an unfair labor practice charge. The unacceptable possibility of precipitating violence in such a situation called into serious question the practicability there of the Garmon pre-emption test, see Longshoremen v. Ariadne Shipping Co., 397 U.S. 195, 202, 90 S.Ct. 872, 875, 25 L.Ed.2d 218 (1970) (White, J., concurring), despite the virtues of the Garmon test in ensuring uniform application of the standards of the NLRA.
49
In this case, however, the NLRB as amicus curiae has taken a position that narrows the no-man's land in regard to trespassory picketing, nam ly, that an employer's mere act of informing nonemployee pickets that they are not permitted on his property "would constitute a sufficient interference with rights arguably protected by Section 7 to warrant the General Counsel, had a charge been filed by the Union, in issuing a Section 8(a)(1) complaint" against the employer. Brief for NLRB as Amicus Curiae 18. Hence, if the union, once asked to leave the property, files a § 8(a)(1) charge, there is a practicable means of getting the issue of trespassory picketing before the Board in a timely fashion without danger of violence.
50
In this case, as the Court notes, the Union failed to file an unfair labor practice charge after being asked to leave. In such a situation pre-emption cannot sensibly obtain because the "risk of an erroneous state-court adjudication . . . is outweighed by the anomalous consequence of a rule which would deny the employer access to any forum in which to litigate either the trespass issue or the protection issue." Ante, at 206-207. It should be made clear, however, that the logical corollary of the Court's reasoning is that if the union does file a charge upon being asked by the employer to leave the employer's property and continues to process the charge expeditiously, state-court jurisdiction is pre-empted until such time as the General Counsel declines to issue a complaint or the Board, applying the standards of NLRB v. Babcock & Wilcox Co., 351 U.S. 105, 76 S.Ct. 679, 100 L.Ed. 975 (1956), rules against the union and holds the picketing to be unprotected. Similarly, if a union timely files a § 8(a)(1) charge, a state court would be bound to stay any pending injunctive or damages suit brought by the employer until the Board has concluded, or the General Counsel by refusal to issue a complaint has indicated, that the picketing is not protected by § 7. As the Court also notes, ante, at 202, the primary-jurisdiction rationale articulated in Garmon "unquestionably requires that when the same controversy may be presented to the state court or the NLRB, it must be presented to the Board." Once the no-man's land has been bridged, as it is once a union files a charge, the importance of deferring to the Labor Board's case-by-case accommodation of employers' property rights and employees' § 7 rights mandates pre-emption of state-court jurisdiction.*
51
2. The opinion correctly observes, ante, at 205, that in implementing this Court's decision in Babcock the NLRB only occasionally has found trespassory picketing to be protected under § 7. That observation is important, as is noted, ante, at 203, in that even the existence of a no-man's land may not justify departure from Garmon' § pre-emption standard if the exercise of state-court jurisdiction portends frequent interference with actually protected conduct. But in its conclusion that trespassory picketing has been found in "experience under the Act" to be only "rare[ly]" protected and "far more likely to be unprotected than protected," ante, at 205, I take the opinion merely to be observing what the Board's past experience has been, not as glossing how the Board must treat the Babcock test in the future, either in regard to organizational picketing or other sorts of protected picketing. The Babcock test provides that "when the inaccessibility of employees makes ineffective the reasonable attempts by nonemployees to communicate with them through the usual channels, the right to exclude from property [is] required to yield to the extent needed to permit communication of information on the right to organize." 351 U.S. at 112, 76 S.Ct., at 684. A variant of that test has been applied by the Board when communication with consumers is at stake. SeeScott Hudgens, 230 N.L.R.B. 414 (1977). The problem of applying the test in the first instance is delegated to the Board, as part of its "responsibility to adapt the Act to changing patterns of industrial life." NLRB v. Weingarten, Inc., 420 U.S. 251, 266, 95 S.Ct. 959, 968, 43 L.Ed.2d 171 (1975); Hudgens v. NLRB, 424 U.S. 507, 523, 96 S.Ct. 1029, 1038, 47 L.Ed.2d 196 (1976). When, for a number of years, the First Amendment holding of Food Employees v. Logan Valley Plaza, 391 U.S. 308, 88 S.Ct. 1601, 20 L.Ed.2d 603 (1968), overruled in Hudgens v. NLRB, diverted the Board from any need to consider trespassory picketing under the statutory test of Babcock, it would be unwise to hold the Board confined to its earliest experience in administering the test.
52
3. The acceptability of permitting state-court jurisdiction over "arguably protected" activities where there is a jurisdictional no-man's land depends, as the Court notes, on whether the exercise of state-court jurisdiction is likely to interfere frequently with actually protected conduct. The likelihood of such interference will depend in large part on whether the state courts take care to provide an adversary hearing before issuing any restraint against union picketing activities. In this case, Sears filed a verified complaint seeking an injunction against the picketing on October 29, 1973. The Superior Court of California entered a temporary restraining order that day. So far as the record reveals, the Union was not accorded a hearing until November 16, on the order to show cause why a preliminary injunction should not be entered. The issue of a prompt hearing was apparently not raised before the Superior Court and was not raised on appeal, and hence does not enter into our judgment h re approving the exercise of state-court jurisdiction. But it may be remiss not to observe that in labor-management relations, where ex parte proceedings historically were abused, see F. Frankfurter & N. Greene, The Labor Injunction 60, 64-66 (1930), it is critical that the state courts provide a prompt adversary hearing, preferably before any restraint issues and in all events within a few days thereafter, on the merits of the § 7 protection question. Labor disputes are frequently short lived, and a temporary restraining order issued upon ex parte application may, if in error, render the eventual finding of § 7 protection a hollow vindication.
53
Mr. Justice POWELL, concurring.
54
Although I join the Court's opinion, Mr. Justice BLACKMUN's concurrence prompts me to add a word as to the "no-man's land" discussion with respect to trespassory picketing. Mr. Justice BLACKMUN, relying on the amicus brief of the National Labor Relations Board, observes that "there is a practicable means of getting the issue of trespassory picketing before the Board in a timely fashion without danger of violence," ante, at 209, if the union—having been requested to leave the property—files a § 8(a)(1) charge.
55
With all respect, this optimistic view overlooks the realities of the situation. Trespass upon private property by pickets, to a greater degree than isolated trespass, is usually organized, sustained, and sometimes obstructive—without initial violence—of the target business and annoying to members of the public who wish to patronize that business. The "danger of violence" is inherent in many—though certainly not all—situations of sustained trespassory picketing. One cannot predict whether or when it may occur, or its degree. It is because of these factors that, absent the availability of an equivalent remedy under the National Labor Relations Act, a state court should have the authority to protect the public and private interests by granting preliminary relief.
56
In the context of trespassory picketing not otherwise violative of the Act, the Board has no comparable authority. If a § 8(a)(1) charge is filed, nothing is likely to happen "in a timely fashion." The Board cannot issue, or obtain from the federal courts, a restraining order directed at the picketing. And it may take weeks for the General Counsel to decide whether to issue a complaint. Meanwhile, the "no-man's land" prevents all recourse to the courts, and is an open invitation to self-help. I am unwilling to believe that Congress intended, by its silence in the Act, to create a situation where there is no forum to which the parties may turn for orderly interim relief in the face of a potentially explosive situation.*
57
I do not minimize the possibilit that the Board may find that trespassory activity under certain circumstances is necessary to facilitate the exercise of § 7 rights by employees of the target employer. See NLRB v. Babcock & Wilcox Co., 351 U.S. 105, 76 S.Ct. 679, 100 L.Ed. 975 (1956); Central Hardware Co. v. NLRB, 407 U.S. 539, 92 S.Ct. 2238, 33 L.Ed.2d 122 (1972). The Union's conduct in this case, however, involved a publicity campaign maintained by nonemployees and directed at the general public. Such "area standards" trespassory picketing is certainly not at the core of the Act's protective ambit. In any event, it is open to the Board upon the issuance of a complaint to seek temporary relief under § 10(j) of the Act, 29 U.S.C. § 160(j), against the employer's interference with § 7 rights. Cf. Capital Service, Inc. v. NLRB, 347 U.S. 501, 74 S.Ct. 699, 98 L.Ed. 887 (1954). Moreover, it is not an unreasonable assumption that state courts will be mindful of the determination of an expert federal agency that there is probable cause to believe that conduct restrained by state process is protected under the Act. But I find no warrant in the Act to compel the employer to endure the creation, especially by nonemployees, of a temporary easement on his property pending the outcome of the General Counsel's action on a charge.
58
In sum, I do not agree with Mr. Justice BLACKMUN that "the logical corollary of the Court's reasoning" in its opinion today is that state-court jurisdiction is pre-empted forthwith upon the filing of a charge by the union. I would not join the Court's opinion if I thought it fairly could be read to that effect.
59
Mr. Justice BRENNAN, with whom Mr. Justice STEWART and Mr. Justice MARSHALL join, dissenting.
60
The Court concedes that both the objective and the location of the Union's peaceful, nonobstructive picketing of Sears' store may have been protected under the National Labor Relations Act.1 Therefore, despite the Court's transparent effort to disguise it, faithful application of the principles of labor law pre-emption established in San Diego Building Trades Council v. Garmon, 359 U.S. 236, 79 S.Ct. 773, 3 L.Ed.2d 775 (1959),2 would compel the conclusion that the California Superior Court was powerless to enjoin the Union from picketing on Sears' property: that the trespass was arguably protected is determinative of the state court's lack of jurisdiction, whether or not pre-emption limits an employer's remedies. See Longshoremen v. Ariadne Shipping Co., 397 U.S. 195, 200-201, 90 S.Ct. 872, 874-875, 25 L.Ed.2d 218 (1970); Garmon, supra; Meat Cutters v. Fairlawn Meats, Inc., 353 U.S. 20, 77 S.Ct. 604, 1 L.Ed.2d 613 (1957); Guss v. Utah Labor Relations Bd., 353 U.S. 1, 77 S.Ct. 598, 1 L.Ed.2d 601 (1957).3
61
By holding that the arguably protected character of union activity will no longer be sufficient to pre-empt state-court jurisdiction, the Court creates an exception of indeterminate dimensions to a principle of labor law pre-emption that has been followed for at least two decades. Now, when the employer lacks a "reasonable opportunity" to have the Board consider whether the challenged aspect of the employee conduct is protected and when employees having that opportunity have not invoked the Board's jurisdiction, a state court will have jurisdiction to enjoin arguably protected activity if the "risk of an erroneous . . . adjudication [by it does not outweigh] the anomalous consequence [of denying a remedy to the employer]." Ante, at 206. In making this rather amorphous determination, the lower courts apparently are to consider the strength of the argument that § 7 in fact protects the arguably protected activity, their own assessments of their ability correctly to determine the underlying labor law issue, and the strength of the state interest in affording the employer an opportunity to have a state court restrain the arguably protected conduct.
62
This drastic abridgment of established principles is unjustified and unjustifiable. The Garmon test, itself fashioned after some 15 years of judicial experience with jurisdictional conflicts that threatened national labor policy, see Motor Coach Employees v. Lockridge, 403 U.S. 274, 290-291, 91 S.Ct. 1909, 1919-1920, 29 L.Ed.2d 473 (1971), has provided stability and predictability to a particularly complex area of the law for nearly 20 years. Thus, the most elementary notions of stare decisis dictate that the test be reconsidered only upon a compelling showing, based on actual experience, that the test disserves important interests. Emphatically, that showing has not been and cannot be made. Rather, the Garmon test has proved to embody an entirely acceptable, and probably the best possible, accommodation of the competing state-federal interests. That an employer's remedies in consequence may be limited, while anomalous to the Court, produces no positive social harm; on the contrary, the limitation on employer remedies is fully justified both by the ease of application of the test by thousands of state and federal judges and by its effect of averting the danger that state courts may interfere with national labor policy. In sharp contrast, today's decision creates the certain prospect of state-court interference that may seriously erode § 7's protections of labor activities. Indeed, the most serious objection to the decision today is not that it is contrary to the teachings of stare decisis but rather that the Court's attempt to create a narrow exception to the principles of Garmon promises to be applied by the lower courts so as to disserve the interests protected by the national labor laws.
63
* It is appropriate to recall the considerations that have shaped the development of the doctrine of labor law preemption. The National Labor Relations Act (Act), of course, changed the substantive law of labor relations. Prior to its enactment many courts treated concerted labor activities of employees as tortious conspiracies or restraints of trade to be enjoined unless the activities related to a specific benefit sought by the employees from their employer; activity directed at strengthening the union was, for these courts, impermissible. See F. Frankfurter & N. Greene, The Labor Injunction 26-29 (1930) (hereafter Frankfurter & Greene). While some courts regarded peaceful picketing as permissible if intended to attain lawful objectives, others regarded picketing as always enjoinable. Id., at 30-46. Section 7 abrogated these state laws. It declares that "concerted activities for the purpose of collective bargaining or other mutual aid or protection," including specifi types and forms of picketing, are protected from interference from any source. Section 7 further provides that employers no longer have an absolute right to prohibit concerted activities occurring on their properties; unwilling employers frequently are required to suffer the presence of organizational activities on their premises. See NLRB v. Magnavox Co., 415 U.S. 322, 94 S.Ct. 1099, 39 L.Ed.2d 358 (1974); NLRB v. Babcock & Wilcox Co., 351 U.S. 105, 76 S.Ct. 679, 100 L.Ed. 975 (1956); Republic Aviation Corp. v. NLRB, 324 U.S. 793, 65 S.Ct. 982, 89 L.Ed. 1372 (1945).
64
But the Act did more than displace certain state laws. Section 8(a) of the Act declares that it is an unfair labor practice for an employer to interfere with employee exercise of § 7 rights, and § 8(b) of the Act provides that certain forms of employee activity, including several types of picketing, are unfair labor practices. Congress created the National Labor Relations Board to administer these provisions and prescribed a detailed procedure for the imposition of restraint on any conduct that is violative of the Act: charge and complaint, notice and hearing, and an order pending judicial review.
65
The animating force behind the doctrine of labor law pre-emption has been the recognition that nothing could more fully serve to defeat the purposes of the Act than to permit state and federal courts, without any limitation, to exercise jurisdiction over activities that are subject to regulation by the National Labor Relations Board. See Motor Coach Employees v. Lockridge, supra, 403 U.S. at 286, 91 S.Ct. at 1917. Congress created the centralized expert agency to administer the Act because of its conviction—generated by the historic abuses of the labor injunction, see Frankfurter & Greene—that the judicial attitudes, court procedures, and traditional judicial remedies, state and federal, were as likely to produce adjudications incompatibile with national labor policy as were different rules of substantive law. See Garner v. Teamsters, 346 U.S. 485, 490-491, 74 S.Ct. 161, 165-166, 98 L.Ed. 228 (1953). Although Congress could not be understood as having displaced "all local regulation that touches or concerns in any way the complex interrelationships between employers, employees, and unions," Motor Coach Employees v. Lockridge, supra, 403 U.S. at 289, 91 S.Ct. at 1919, the legislative scheme clearly embodies an implicit prohibition of those state- and federal-court adjudications that might significantly interfere with those interests that are a central concern to national labor policy.
66
The Act's treatment of picketing illustrates the nature of the generic problem, and at the same time highlights the issue in this case. While this Court has never held that the prescription of detailed procedures for the restraint of specific types of picketing and the provision that other types of picketing are protected implies that picketing is to be free from all restraint under state laws, see, e. g., Automobile Workers v. Russell, 356 U.S. 634, 78 S.Ct. 932, 2 L.Ed.2d 1030 (1958) (state courts may restrain violent conduct on picket lines), it by the same token necessarily is true that to permit local adjudications, without limitation, of the legality of picketing would threaten intolerable interference with the interests protected by the Act. As the Court recognizes, the nature of the threatened interference differs depending on whether the picketing implicates the Act's prohibitions or its protections. See ante, at 190. As to arguably prohibited picketing, there is a risk that the state court might misinterpret or misapply the federal prohibition and restrain conduct that Congress may have intended to be free from governmental restraint.4 But even when state courts can be depended upon accurately to determine whether conduct is in fact prohibited, local adjudication may disrupt the congressional scheme by resulting in different forms of relief than would adjudicat on by the NLRB. By providing that an expert, centralized agency would administer the Act, Congress quite plainly evidenced an intention that, ordinarily at least, this expert agency should, on the basis of its experience with labor matters, determine the remedial implications of violations of the Act. If state courts were permitted to administer all the Act's prohibitions, the divergences in relief would add up to significant departures from federal policy. These considerations led the Court to fashion the rule, announced in Garmon, 359 U.S., at 245, 79 S.Ct., at 779, that state courts have no jurisdiction over "arguably prohibited" conduct.
67
This aspect of Garmon has never operated as a flat prohibition.5 There are circumstances in which state courts can be depended upon accurately to determine where the underlying conduct is prohibited and in which Congress cannot be assumed to have intended to oust state-court jurisdiction. Illustrative are decisions holding that States may regulate mass picketing obstructive picketing, or picketing that threatens or results in violence. See Automobile Workers v. Russell, supra; Automobile Workers v. Wisconsin Employment Relations Bd., 351 U.S. 266, 76 S.Ct. 794, 100 L.Ed. 1162 (1956); Construction Workers v. Laburnum Constr. Corp., 347 U.S. 656, 74 S.Ct. 833, 98 L.Ed. 1025 (1954); Electrical Workers v. Wisconsin Employment Relations Bd., 315 U.S. 740, 749, 62 S.Ct. 820, 825, 86 L.Ed. 1154 (1942). Because violent tortious conduct on a picket line is prohibited by § 8(b) and because state courts can reliably determine whether such conduct has occurred without considering the merits of the underlying labor dispute, allowing local adjudications of these tort actions could neither fetter the exercise of rights protected by the Act nor otherwise interfere with the effective administration of the federal scheme. And the possible inconsistency of remedy is not alone a sufficient reason for pre-empting state-court jurisdiction. In view of the historic state interest in "such traditionally local matters as public safety and order," Electrical Workers v. Wisconsin Employment Relations Bd., supra, at 749, 62 S.Ct., at 825, the Act could not, in the absence of a clear statement to the contrary, be construed as precluding the imposition of different, even harsher, state remedies in such cases. See Automobile Workers v. Russell, supra, 356 U.S., at 641-642, 78 S.Ct., at 936-937. Indeed, in view of the delay attendant upon resort to the Board, it could well produce positive harm to prohibit state jurisdiction in these circumstances. Our decisions leave no doubt that exceptions to the Garmon principle are to be recognized only in comparable circumstances. See Farmer v. Carpenters, 430 U.S. 290, 297-301, 97 S.Ct. 1056, 1062-1064, 51 L.Ed.2d 338 (1977); Vaca v. Sipes, 386 U.S. 171, 87 S.Ct. 903, 17 L.Ed.2d 842 (1967); Linn v. Plant Guard Workers, 383 U.S. 53, 86 S.Ct. 657, 15 L.Ed.2d 582 (1966).
68
When, on the other hand, the underlying conduct may be protected by the Act, the risk of interference with the federal scheme is of a different character. The danger of permitting local adjudications is not that timing or form of relief might be different from what the Board would administer, but rather that the local court might restrain conduct that is in fact protected by the Act. This might result not merely from attitudinal differences but even more from unfair procedures or lack of expertise in labor relations matters. The present case illustrates both the nature and magnitude of the danger. Because the location of employee picketing is often determinative of the meaningfulness of the employees' ability to engage in effective communication with their intended audience, employees often have the right to engage in picketing at particular locations, including the private property of another. See Hudgens v. NLRB, 424 U.S. 507, 96 S.Ct. 1029, 47 L.Ed.2d 196 (1976); Scott Hudgens, 230 N.L.R.B. 414, 95 LRRM 1351 (1977); cf. NLRB v. Babcock & Wilcox Co., 351 U.S. 105, 76 S.Ct. 679, 100 L.Ed. 975 (1956). The California Superior Court here entered an order, ex parte, broad enough to prohibit all effective picketing of Sears' store for a period of 35 days. See opinion of my Brother BLACKMUN, ante, at 212. Since labor disputes are usually short lived, see ibid., this possibly erroneous order may well have irreparably altered the balance of the competing economic forces by prohibiting the Union's use of a permissible economic weapon at a crucial time. Obviously it is not lightly to be inferred that a Congress that provided elaborate procedures for restraint of prohibited picketing and that failed to provide an employer with a remedy against otherwise unprotected picketing could have contemplated that local tribunals with histories of insensitivity to the organizational interests of employees be permitted effectively to enjoin protected picketing.
69
In recognition of this fact, this Court's efforts in the area of labor law pre-emption have been largely directed to developing durable principles to ensure that local tribunals not be in a position to restrain protected conduct. Because the Court today appears to have forgotten some of the lessons of history, it is appropriate to summarize this Court's efforts. The first approach to be tried—and abandoned—was for this Court to proceed on a case-by-case basis and determine whether each particular final state-court ruling "does, or might reasonably be thought to, conflict in some relevant manner with federal labor policy," Motor Coach Employees v. Lockridge, 403 U.S., at 289-291, 91 S.Ct., at 1919-1920; see Automobile Workers v. Wisconsin Employment Relations Bd., 336 U.S. 245, 69 S.Ct. 516, 93 L.Ed. 651 (1949). Not surprisingly, such an effort proved institutionally impossible. Because of the infinite combinations of events that implicate the central protections of the Act, this Court could not, without largely abdicating its other responsibilities, hope to determine on an ad hoc, generic-situation-by-generic-situation basis whether applications of state laws threatened national labor policy. In any case, such an approach necessarily disserved national labor policy because decision by this Court came too late to repair the damage that an erroneous decision would do to the congressionally established balance of power and was no substitute for decision in the first instance by the Board. The Court soon concluded that protecting national labor policy from disruption or defeat by conflicting local adjudications demanded broad principles of labor law pre-emption, easily administered by state and federal courts throughout the Nation, that would minimize, if not eliminate entirely, the possibility of decisions of local tribunals that irreparably injure interests protected by § 7. The only rule6 satisfying these dual requirements was Garmon's flat prohibition: "When an activity is arguably subject to § 7 or § 8 of the Act, the States as well as the federal courts must defer to the exclusive competence of the . . . Board." 359 U.S., at 245, 79 S.Ct., at 780.
70
While there is some unavoidable uncertainty concerning the arguably prohibited prong of Garmon, I emphasize that it has heretofore been absolutely clear that there is no state power to deal with conduct that is a central concern of the Act7 and arguably protected by it, see Longshoremen v. Ariadne Shipping Co., 397 U.S. 195, 90 S.Ct. 872, 25 L.Ed.2d 218 (1970); Garmon, supra; Meat Cutters v. Fairlawn Meats, Inc., 353 U.S. 20, 77 S.Ct. 604, 1 L.Ed.2d 613 (1957); Guss v. Utah Labor Relations Bd., 353 U.S. 1, 77 S.Ct. 598, 1 L.Ed.2d 601 (1957). As the Court itself recognizes, see ante, at 194-197, and, at 204, none of the Garmon exceptions have ever been or could ever be applied to local attempts to restrain such conduct. But the Garmon approach to "arguably protected" activity does not "swee[p] away state-court jurisdiction over conduct traditionally subject to state regulation without careful consideration of the relative impact of such a jurisdictional bar on the various interests affected." Ante, at 188. Quite the contrary, such careful consideration is subsumed by the determination whether the underlying conduct may be protected by § 7. By enacting § 7, Congress necessarily intended to pre-empt certain state laws: e. g., those prohibiting concerted activities as conspiracies or unlawful restraints of trade. In any instance in which it can seriously be maintained that the congressionally established scheme protects the employee activity, the assessment of the relative weight of the competing state and federal interests has to be regarded as having been made by Congress. By drafting the statute so as to permit a Board determination that the underlying conduct is in fact within the ambit of § 7's protections, Congress necessarily indicated its view that the historic state interest in regulating the conduct, however defined, may have to yield to the attainment of other objectives and that the state interest thus must be regarded as less than compelling. And, of course, there is necessarily a possibility that to permit state-court jurisdiction over arguably protected conduct could fetter the exercise of rights protected by the Act and otherwise interfere with the congressional scheme. A local tribunal could recognize an activity as arguably protected, yet, given its attitude toward organized labor, lack of expertise in labor matters, and insensitive procedures, misapply or misconceive the Board's decisional criteria and restrain conduct that is within the ambit of § 7.
II
71
The present case illustrates both the necessity of this flat rule and the danger of even the slightest deviation from it. The present case, of course, is a classic one for pre-emption. The question submitted to the state court was whether the Union had a protected right to locate peaceful nonobstructive pickets on the privately owned walkway adjacent to Sears' retail store or on the privately owned parking lot a few feet away.
A.
72
That the trespass was arguably protected could scarcely be clearer. NLRB v. Babcock & Wilcox Co.,, 351 U.S., at 112, 76 S.Ct., at 684, indicates that trespassory § 7 activity is protected when "reasonable efforts . . . through other available channels" will not enable the union to reach its intended audience. This standard, which was developed in the context of a rather different factual situation, is but an application of more general principles. "[T]he basic objective under the Act [is the] accommodation of § 7 rights and private property rights 'with as little destruction of one as is consistent with the maintenance of the other.' The locus of that accommodation, however, may fall at differing points along the spectrum depending on the nature and strength of the respective § 7 rights and private property rights asserted in any given context." Hudgens v. NLRB, 424 U.S., at 522, 96 S.Ct., at 1037-1038, quoting NLRB v. Babcock & Wilcox Co., supra, 351 U.S., at 112, 76 S.Ct., at 684; see Scott Hudgens, 230 N.L.R.B., at 417, 95 LRRM, at 1354.
73
Here, it can seriously be contended that the locus of the accommodation should be on the side of permitting the trespass. The § 7 interest is strong: The object of the picketing was arguably protected on one of two theories—as "area standards"8 or as "recognitional"9 picketing—and the record suggests that the relocation of the picketing to the nearest public area—a public sidewalk 150 to 200 feet away—may have so diluted the picketing's impact as to make it virtually meaningless.10 The private property interest, in contrast, was exceedingly weak. The picketing was confined to a portion of Sears' property which was open to the public and on which Sears had permitted solicitations by other groups.11 Thus, while Sears to be sure owned the property, it resembled public property in many respects. Indeed, while Sears' legal position would have been quite different if the lot and walkways had been owned by the city of Chula Vista, it is doubtful that Sears would have been any less angered or upset by the picketing if the property had in fact been public.
74
But the Court refuses to follow the simple analysis that has been sanctioned by the decisions of the last 20 years. Its reasons for discarding prior teachings, apparently, is a belief that faithful application of Garmon to the generic situation presented by this case causes positive social harm. I disagree.
75
It bears emphasizing that Garmon only partially pre-empts an employer's remedies against unlawful trespassory picketing. A state court may, of course, enjoin any picketing that is clearly unprotected by the Act: e. g., peaceful, nonobstructive picketing occurring within a retail store. See Brief for Respondent 30 n. 14, citing NLRB v. Fansteel Corp., 306 U.S. 240, 59 S.Ct. 490, 83 L.Ed. 627 (1939); Marshall Field & Co. v. NLRB, 200 F.2d 375 (CA7 1953); Brief for NLRB as Amicus Curiae 15 n. 9. And, as already indicated, state courts have jurisdiction over picketing that is obstructive, or involves large groups of persons, or otherwise entails a serious threat of violence. Automobile Workers v. Russell; Construction Workers v. Laburnum Constr. Corp.; Automobile Workers v. Wisconsin Employment Relations Bd.; Electrical Workers v. Wisconsin Employment Relations Bd. These decisions constitute an almost dispositive answer to my Brother POWELL's suggestion that state trespass laws should be allowed full play, see ante, at 213: most of the factual situations that concern him fall within a recognized Garmon exception. Finally, an employer may file an unfair labor practice charge under § 8(b) and obtain a "cease and desist" order from the Board where the picketing has an objective prohibited by § 8(b).
76
Thus, pre-emption of state-court jurisdiction to deal with trespassory picketing has been largely, if not entirely, confined to situations such as presented in this case, i. e., in which the interest of the employer in preventing the picketing is weak, the § 7 interest in picketing on the employer's property strong, and the picketing peaceful and nonobstructive. In this circumstance, I think the denial to the employer of a remedy is an entirely acceptable social cost for the benefits of a pre-emption rule that avoids the danger of state-court interference with national labor policy. The Court's arguments to the contrary are singularly unpersuasive. Because an employer's remedies are only pre-empted in the narrow circumstances of a case such as the present one, any suggestion that the faithful application of Garmon creates a "no-man's land" which results in a substantial risk of violence, see opinion of my Brother BLACKMUN, ante, at 208; opinion of my Brother POWELL, ante, at 213; cf. opinion of the Court, ante, at 202, can be dismissed as the most unfounded speculation. Employers like Sears may be angered or outraged by the presence of peaceful, nonobstructive picketing close to its retail store. But the Act requires the employer's toleration of peaceful picketing when § 7 affords the union the right to engage in this form of economic pressure. There is simply no basis whatsoever for a conclusion that the risk of violence is any greater when an employer is told by a state court that Garmon bars his state trespass action than when he is told either that § 7 protects picketing on a public area immediately adjacent to his business, cf. Longshoremen v. Ariadne Shipping Co., or that § 7 in fact privileges the entry onto his property. Cf. Scott Hudgens.
77
In apparent recognition of this indisputable fact, the Court places no great reliance on the likelihood of violence. But the only other reason advanced for a conclusion that Garmon produces socially intolerable results is that it is "anomalous" to deny an employer a trespass remedy. Since the Act extensively regulates the conditions under which an employer's proprietary rights must y eld to the exercise of § 7 rights, I am at a loss as to why the anomaly here is any greater than that which results from the pre-emption of state remedies against tortious conspiracies, compare § 7 of the Act with Frankfurter & Greene, 26-39, or from the pre-emption of state remedies against non-malicious libels. See Linn v. Plant Guard Workers, 383 U.S. 53, 86 S.Ct. 657, 15 L.Ed.2d 582 (1966).
B
78
That this Court's departure from Garmon creates a great risk that protected picketing will be enjoined is amply illustrated by the facts of this case and by the task that was assigned to the California Superior Court. To decide whether the location of the Union's picketing rendered it unlawful, the state court here had to address a host of exceedingly complex labor law questions, which implicated nearly every aspect of the Union's labor dispute with Sears and which were uniquely within the province of the Board. Because it had to assess the "relative strength of the § 7 right," see Hudgens v. NLRB, 424 U.S., at 522, 96 S.Ct., at 1038, its first task necessarily was to determine the nature of the Union's picketing. This picketing could have been characterized in one of three ways: as protected area-standards picketing, see opinion of the Court, ante, at 1752; as prohibited picketing to compel a reassignment of work, see ante, at 185-186, and n.9; or as recognitional picketing that is protected at the outset but prohibited if no petition for a representative election is filed within a reasonable time, not to exceed 30 days. See supra, at 225 n.9; ante, at 186, and n.10. Notably, if the state court concluded that the picketing was prohibited by § 8(b)(4)—or unprotected by § 7 on any other theory that determination would have been conclusive against respondent: Whether or not the state court agreed with the Union's contention that effective communication required that picketing be located on Sears' premises, the court would enjoin the trespassory picketing on the ground that no protected § 7 interest was involved. Obviously, since even the Court admits that the characterization of the picketing "entail[s] relatively complex factual and legal determinations," see ante, at 198, there is a substantial danger that the state court, lacking the Board's expertise and specialized sensitivity to labor relations matters, would err at the outset and effectively deny respondent the right to engage in any effective § 7 communication.12
79
But even if the state court correctly assesses the § 7 interest, there are a host of other pitfalls. A myriad of factors are or could be relevant to determining whether § 7 protected the trespass: e. g., whether and to what extent relocating the picketing on the nearest public property 150 feet away would have diluted its impact; whether the picketing was characterized as recognitional or area standards; whether or the extent to which Sears had opened the property up to the public or permitted similar solicitation on it; whether it mattered that the pickets did not work for Sears, etc. And if elevant, each of these factors would suggest a number of subsidiary inquiries.
80
It simply cannot be seriously contended that the thousands of judges, state and federal, throughout the United States can be counted upon accurately to identify the relevant considerations and give each the proper weight in accommodating the respective rights. Indeed, the actions of the California courts illustrate the danger. Not only was the ex parte order of the California Superior Court entered under conditions precluding careful consideration of all relevant considerations, even the Court of Appeal, presumably able to devote more time and deliberation to isolate the correct decisional criteria, failed properly to appreciate the significance of a criterion critical to the application of national law: that the distance of the picketing from a store entrance is largely determinative of its effectiveness. Cf. Scott Hudgens, 230 N.L.R.B., at 417, 95 LRRM, at 1354 ("a message announced . . . by picket sign . . . a [substantial] distance from the focal point would be too greatly diluted to be meaningful"). Nothing better demonstrates the wisdom of the heretofore settled rule that "the primary responsibility for making [the] accommodation [between § 7 rights and private property rights] must rest with the Board in the first instance." Hudgens v. NLRB, supra, at 522, 96 S.Ct., at 1038.
81
The Court does not deny that its decision may well result in state-court decisions erroneously prohibiting or curtailing conduct in fact protected by § 7. But it identifies two considerations that persuade it that the risk of interference is minimal and that, in any case, the risk does not outweigh the anomalous consequence of denying the employer a remedy.
82
The first is its belief that the generic type of activity which the Court characterizes as trespassory organizational activity by nonemployees—is more likely to be unprotected than protected. Ante, at 205-206. In so concluding, the Court relies on N.L.R.B. v. Babcock & Wilcox Co., 351 U.S. 105, 76 S.Ct. 679, 100 L.Ed. 975 (1956), for the proposition that there is a strong presumption against permitting trespasses by nonemployees. But the Court overlooks a critical distinction between Babcock and the case at bar. Babcock involved a trespass on industrial property which the employer had fenced off from the public at large, and it is a grave error to treat Babcock as having substantial implications for the generic situation presented by this case. To permit trespassory § 7 activities in the Babcock fact pattern entails far greater interference with an employer's business than does allowing peaceful nonobstructive picketing on a parking lot which is open to the public and which has been used for other types of solicitation. As my Brother BLACKMUN'S concurring opinion notes, this Court's shortlived holding that picketing at shopping centers is protected by the Fourteenth Amendment, see Food Employees v. Logan Valley Plaza, 391 U.S. 308, 88 S.Ct. 1601, 20 L.Ed.2d 603 (1968), overruled in Hudgens v. NLRB, supra, has resulted in a situation where neither this Court nor the Board has considered, in any comprehensive fashion, the quite different question of the conditions under which union representatives may enter privately owned areas of shopping centers to engage in protected activities such as peaceful picketing. But the Court's own opinion in Hudgens v. NLRB, supra, and the Board's decision in Scott Hudgens, supra,13 both suggest that trespasses in such circumstances will often be protected. Quite apart from the fact the Court has no basis for blithely assuming that all private property is fungible, that this Court would fail to appreciate so possibly vital a distinction in assessing the strength of a § 7 claim illustrates the danger of permitting lower courts, which lack even this Court's exposure to labor law, to rule on the question whether trespassory picketing by nonemployees is protected.
83
The Court's second reason is more problematic still. It urges that the risk that local adjudications will interfere with protected § 7 activity is "minimized by the fact that in the cases in which the argument in favor of protection is the strongest, the union is likely to invoke the Board's jurisdiction and thereby avoid the state forum." Ante, at 206. That, with all respect, betrays ignorance of the conduct of adversaries in the real world of labor disputes. Whether a union will seek the protection of a Board order will depend upon whether that tactic will best serve its self-interest, and that determination will depend in turn on whether the employer's request inhibits or interferes with the union's ability to engage in protected conduct. A request that a trespass cease may or may not so threaten the union as to lead it to go to the trouble and expense of attempting to invoke the Board's jurisdiction, and the strength of the argument that the conduct is protected will frequently be a factor of no relevance. For example, if the union perceives the employer's request as a hollow threat or believes that the employer's legal position in any case has no merit, the union will have no reason to turn to the Board.
84
It might, on the other hand, be the case that the union would have more of an incentive to file a § 8(a)(1) charge if it believed that resort to the Board were necessary to protect itself against adjudications by hostile state tribunals. Of course, even then, the union may not believe that invocation of the Board's jurisdiction is worth the trouble and expense in those instances in which it believes its own legal position unassailable. But there is no point in conjecturing on this score. The Court assiduously avoids holding that resort to the Board will oust a state court's jurisdiction14 and is divided on this question. Compare opinion of my Brother BLACKMUN, ante, at 208-210, with opinion of my Brother POWELL, ante, p. 212. The Court cannot have it both ways: Unless and until the Court decides that the filing of a charge pre-empts adjudications by local tribunals, speculation as to the conditions under which there would or would not be a failure to file is an idle exercise.15
III
85
But what is far more disturbing than the specific holding in this case is its implications for different generic situations. Whatever the shortcomings of Garmon, none can deny the necessity for a rule in this complex area that is capable of uniform application by the lower courts. The Court's new exception to Garmon cannot be expected to be correctly applied by those courts and thus most inevitably will threaten erosion of the goal of uniform administration of the national labor laws. Even though the Court apparently intends to create only a very narrow exception to Garmon —largely if not entirely limited to situations in which the employer first requested the nonemployees engaged in area-standards picketing on the employer's property to remove the pickets from the employer's land and the union did not respond by filing § 8(a)(1) unfair labor practice charges—the approach the Court today adopts cannot be so easily cabined and thus threatens intolerable disruption of national labor policy.
86
Because § 8(b) only affords an employer a remedy against certain types of unprotected employee activity, there necessarily will be a myriad of circumstances in which an employer will be confronted with possibly unprotected employee or union conduct, and yet be unable directly to invoke the Board's processes to receive a determination of the protected character of the conduct. Today's decision certainly opens the door to a conclusion by state and federal courts that the Court's new exception applies in any situation where the employer has requested that the labor organization cease what the employer claims is unprotected conduct and the union has not responded by filing a § 8(a)(1) charge. In that circumstance, today's decision sanctions a three-step process by the state or federal court.
87
First, the court must inquire whether the employer had a "reasonable opportunity" to force a Board determination. What constitutes a "reasonable opportunity"? I have to assume from today's decision that the employer can never be deemed to have an acceptable opportunity when nonemployees are engaged in the arguably protected activity. But what if employees are involved? Will the fact that the employer can provoke the filing of an unfair labor practice charge by disciplining the employee always constitute an acceptable alternative? Perhaps so, but the Court provides no guidance that can help the local judges. Some may believe that the fact that any discipline will enhance the seriousness of the unfair labor practice renders that course unacceptable. Similarl , what of the instances in which employer discipline might not, under the circumstances, provoke the filing of a charge: e. g., if an economic strike were in progress?
88
Second, if the lower court concludes that the employer did not have an acceptable means of placing the protection issue before the Board, it must then proceed to inquire whether, in light of its assessment of the strength of the argument that § 7 might protect the generic type of conduct involved, there is a substantial likelihood that its adjudication will be incompatible with national labor policy. This is a particularly onerous task to assign to judges having no special expertise or specialized sensitivity in the application of the federal labor laws, and it is not clairvoyant to predict that many local tribunals will misconceive the relevant criteria and erroneously conclude that they are capable of correctly applying the labor laws. With all respect, the Court's opinion proves my point. As I have already observed, in concluding that peaceful picketing upon Sears' walkway was more likely to be unprotected than protected, the Court makes an entirely unfounded assumption concerning the approach the Board is likely to apply to the organizational activities of nonemployees at shopping centers. Since the great majority of state and federal judges around the Nation rarely, if ever, have this Court's exposure to the federal labor laws, local tribunals surely will commit far more grievous errors in assessing the likelihood that its adjudication will subvert national labor policy. But the final step in the Court's new pre-emption inquiry is the most troublesome: The range of circumstances in which local tribunals might conclude that the anomaly of denying an employer a remedy outweighs the risk of erroneous determinations by the state courts is limitless. Many erroneous determinations of non-pre-emption are certain to occur, and the local adjudications of the protection issues will inevitably often be inconsistent and contrary to national policy.
89
This prospect should give the Court more concern than its opinion reflects. It is no answer that errors remain correctible while this Court sits. The burden that will be thrown upon this Court finally to decide, on an ad hoc, generic-situation-by-generic-situation basis, whether the employer had a "reasonable opportunity" to obtain a Board determination and, if not, whether the risk of interference outweighs the anomaly of denying the employer a remedy, should give us pause. Inconsistency and error in decisions below may compel review of an inordinate number of cases, lest lower court adjudications threaten irretrievable injury to interests protected by § 7. Indeed, the experience of 30 years ago should, I would have thought, taught us the folly of such an approach. And our burden will be even greater if, as my Brother BLACKMUN suggests, ante, at 211-212, this Court must fashion a code of "labor law due process" to minimize the risk of erroneous state-court determinations of protection questions.
90
I do not doubt that this Court could, if it wished, minimize the deleterious consequences of today's unfortunate decision. But the Court cannot prevent it from introducing inconsistency and confusion that will, threaten the fabric of national labor policy and from imposing new and unnecessary burdens on this Court. Adherence to Garmon would spare us and the Nation these burdens. Because the Court has not demonstrated that Garmon produces an unacceptable accommodation of the conflicting state and federal interests, I respectfully dissent.
1
49 Stat. 449, as amended, 29 U.S.C. §§ 151-169 (1970 ed. and Supp. V). Hereinafter, the National Labor Relations Act will be referred to as the Act or the NLRA.
2
Although Sears claimed that some deliverymen and repairmen refused to cross the picket lines on the public sidewalks, the Union ultimately concluded that the picketing was then too far removed from the store to be effective. The picketing was discontinued on November 12.
3
The Superior Court apparently rested its decision on two grounds: (1) that the injunction was not prohibited by state law, and (2) that the picketing was not protected by the First and Fourteenth Amendments of the Federal Constitution. Transcript of Preliminary Injunc ion Hearing, App. 32. Thus, the precise issue presently before the Court was not decided until the case reached the Court of Appeal.
4
The court was referring to this statement in the Garmon opinion: "When an activity is arguably subject to § 7, or § 8 of the Act, the States as well as the federal courts must defer to the exclusive competence of the National Labor Relations Board if the danger of state interference with national policy is to be averted." 359 U.S., at 245, 79 S.Ct., at 780.
5
The court also reaffirmed the conclusion of the Superior Court that the injunction was not prohibited by either state law or the Federal Constitution.
In concluding that the state courts were "not preempted from exercising their general jurisdiction in matters of trespass related to labor disputes," App. to Pet. for Cert. A-10, the Court of Appeal noted that the right to peaceful possession of property was regarded as basic in California and that the assumption of state jurisdiction would not directly infringe on the jurisdiction of the National Labor Relations Board, since no attempt had been made to invoke that jurisdiction. In a subsequent amended opinion, the Court of Appeal also emphasized the fact that the trial court injunction was narrowly confined to the " 'location' of the controversy as opposed to the purpose of the acts . . . and did not deny the Union effective communication with all persons going to Sears." 125 Cal.Rptr. 245, 252 (1975).
6
The issue was left open by the Court in Meat Cutters v. Fairlawn Meats, Inc., 353 U.S. 20, 24-25, 77 S.Ct. 604, 606, 1 L.Ed.2d 613. Cf. Taggart v. Weinacker's, Inc., 283 Ala. 171, 214 So.2d 913 (1968), cert. dismissed, 397 U.S. 223, 90 S.Ct. 876, 25 L.Ed.2d 240.
7
The state courts have divided on the question of state-court jurisdiction over peaceful trespassory activity. For cases in addition to this one in which pre-emption was found, see, e. g., Reece Shirley & Ron's, Inc. v. Retail Store Employees, 222 Kan. 373, 565 P.2d 585 (1977); Freeman v. Retail Clerks, 58 Wash.2d 426, 363 P.2d 803 (1961). For cases reaching a contrary conclusion, see, e. g., May Department Stores Co. v. Teamsters, 64 Ill.2d 153, 355 N.E.2d 7 (1976); People v. Bush, 39 N.Y.2d 529, 384 N.Y.S.2d 733, 349 N.E.2d 832 (1976); Hood v. Stafford, 213 Tenn. 684, 378 S.W.2d 766 (1964).
8
The State Superior Court and the Court of Appeal concluded that the Union's activity violated state law. Because it concluded that the state courts lacked jurisdiction to entertain the state trespass claim, the California Supreme Court did not address the merits of the lower court rulings. The Union contends that those rulings were incorrect. Though we regard the state-law issue as foreclosed in this Court, there is of course nothing in our decision on the pre-emption issue which bars consideration of the Union's arguments by the California Supreme Court on remand.
9
Section 8(b)(4)(D) provides in part that it shall be an unfair labor practice for a labor organization or its agents—
"to threaten, coerce, or restrain any person engaged in commerce or in an industry affecting commerce, where . . . an object thereof is—
* * * * *
"forcing or requiring any employer to assign particular work to employees in a particular labor organization or in a particular trade, craft, or class rather than to employees in another labor organization or in another trade, craft, or class, unless such employer is failing to conform to an order or certification of the Board determining the bargaining representative for employees performing such work." 29 U.S.C. § 158(b)(4)(D).
There are two provisos to § 8(b)(4) which exempt certain conduct from its prohibitions, but they appear to have no application in this case.
10
Section 8(b)(7)(C) provides in part that "[i]t shall be an unfair labor practice for a labor organization or its agents—
* * * * *
"to picket . . . any employer where an object thereof is forcing or requiring an employer to recognize or bargain with a labor organization as the representative of his employees . . . unless such labor organization is currently certified as the representative of such employees:
* * * * *
"where such picketing has been conducted without a petition . . . [for a representation election] being filed within a reasonable period of time not to exceed thirty days from the commencement of such picketing . . . ." 29 U.S.C. § 158(b)(7)(C).
11
As to conduct clearly protected or prohibited by the federal statute, the Court stated:
"When it is clear or may fairly be assumed that the activities which a State purports to regulate are protected by § 7 of the National Labor Relations Act, or constitute an unfair labor practice under § 8, due regard for the federal enactment requires that state jurisdiction must yield. To leave the States free to regulate conduct so plainly within the central aim of federal regulation involves too great a danger of conflict between power asserted by Congress and requirements imposed by state law." 359 U.S., at 244, 79 S.Ct., at 779.
12
This sensitivity to the consequences of pre-emption is undoubtedly attributable, at least in part, to the way in which the labor pre-emption doctrine has evolved. The doctrine is to a great extent the result of this Court's ongoing effort to decipher the presumed intent of Congress in the face of that body's steadfast silence. Mr. Justice Frankfurter aptly described the difficulty of this never-completed task: "The statutory implications concerning what has been taken from the States and what has been left to them are of a Delphic nature, to be translated into concreteness by the process of litigating elucidation." Machinists v. Gonzales, 356 U.S. 617, 619, 78 S.Ct. 923, 924, 2 L.Ed.2d 1018. And it is "because Congress has refrained from providing specific directions with respect to the scope of pre-empted state regulation, [that] the Court has been unwilling to 'declare pre-empted all local regulation that touches or concerns in any way the complex interrelationships between employees, employers, and unions . . . .' " Farmer v. Carpenters, 430 U.S. 290, 295-296, 97 S.Ct. 1056, 1061, 51 L.Ed.2d 338. (citation omitted).
13
"We have refused to apply the pre-emption doctrine to activity that otherwise would fall within the scope of Garmon if that activity 'was a merely peripheral concern of the Labor Management Relations Act . . . [or] touched interests so deeply rooted in local feeling and responsibility that, in the absence of compelling congressional direction, we could not infer that Congress had deprived the States of the power to act.' . . . We also have refused to apply the pre-emption doctrine 'where the particular rule of law sought to be invoked before another tribunal is so structured and administered that, in virtually all instances, it is safe to presume that judicial supervision will not disserve the interests promoted by the federal labor statutes.' " Id., at 296-297, 97 S.Ct., at 1061-1062.
The Court's rejection of an inflexible pre-emption approach is reflected in other situations as well. Where only a minor aspect of the controversy presented to the state court is arguably within the regulatory jurisdiction of the Labor Board, the Court has indicated that the Garmon rule should not be read to require pre-emption of state jurisdiction. Hanna Mining Co. v. Marine Engineers, 382 U.S. 181, 86 S.Ct. 327, 15 L.Ed.2d 254. The Court has also indicated that if the state court can ascertain the actual legal significance of particular conduct under federal law by reference to "compelling precedent applied to essentially undisputed facts," San Diego Building Trades Council v. Garmon, 359 U.S., at 246, 79 S.Ct., at 780, the court may properly do so and proceed to adjudicate the state cause of action. Permitting the state court to proceed under these circumstances deprives the litigant of the argument that the Board should reverse its position, or, perhaps, that precedent is not as compelling as one adversary contends.
14
"In addition to the judicially developed exceptions referred to in [n. 13, supra ], Congress itself has created exceptions to the Board's exclusive jurisdiction in other classes of cases. Section 303 of the Labor Management Relations Act, 1947, 61 Stat. 158, as amended, 29 U.S.C. § 187, authorizes anyone injured in his business or property by activity violative of § 8(b)(4) of the NLRA, 61 Stat. 140, as amended, 29 U.S.C. § 158(b)(4), to recover damages in federal district court even though the underlying unfair labor practices are remediable by the Board. See Teamsters v. Morton, 377 U.S. 252, 84 S.Ct. 1253, 12 L.Ed.2d 280 (1964). Section 301 of the LMRA, 29 U.S.C. § 185, authorizes suits for breach of a collective-bargaining agreement even if the breach is an unfair labor practice within the Board's jurisdiction. See Smith v. Evening News Assn., 371 U.S. 195, 83 S.Ct. 267, 9 L.Ed.2d 246 (1962). Section 14(c)(2) of the NLRA, as added by Title VII, § 701(a) of the Labor-Management Reporting and Disclosure Act of 1959, 73 Stat. 541, 29 U.S.C. § 164(c)(2), permits state agencies and state courts to assert jurisdiction over 'labor disputes over which the Board declines, pursuant to paragraph (1) of this subsection, to assert jurisdiction.' " Farmer v. Carpenters, supra, 430 U.S., at 297, n. 8, 97 S.Ct., at 1062.
15
For a brief summary of the development of this national policy, see R. Gorman, Labor Law 1-6 (1976).
16
"Comparison of the State and Federal statutes will show that both governments have laid hold of the same relationship for regulation, and it involves the same employers and the same employees. Each has delegated to an administrative authority a wide discretion in applying this plan of regulation to specific cases, and they are governed by somewhat different standards. Thus, if both laws are upheld, two administrative bodies are asserting a discretionary control over the same subject matter, conducting hearings, supervising elections and determining appropriate units for bargaining in the same plant.
* * * * *
"We therefore conclude that it is beyond the power of New York State to apply its policy to these appellants as attempted herein." Bethlehem Steel Co. v. New York Labor Relations Bd., 330 U.S. 767, 775-777, 67 S.Ct. 1026, 1031, 91 L.Ed. 1234.
17
See n. 16, supra.
18
La Crosse Telephone Corp. v. Wisconsin Employment Relations Bd., 336 U.S. 18, 24-26, 69 S.Ct. 379, 382-383, 93 L.Ed. 463.
19
Plankinton Packing Co. v. Wisconsin Employment Relations Bd., 338 U.S. 953, 70 S.Ct. 491, 94 L.Ed. 588.
20
The apparent objective of the picketing was to pressure an employer into coercing employees into joining the union.
21
This Court has summarily reversed several cases in which the state court purported to regulate labor union activities under provisions of state labor laws comparable to the prohibitions of the federal Act. See e. g., Pocatello Building & Constr. Trades Council v. C. H. Elle Constr. Co., 352 U.S. 884, 77 S.Ct. 130, 1 L.Ed.2d 82, rev'g 78 Idaho 1, 297 P.2d 519 (1956); Electrical Workers v. Farnsworth & Chambers Co., 353 U.S. 969, 77 S.Ct. 1056, 1 L.Ed.2d 1133, rev'g 201 Tenn. 329, 299 S.W.2d 8 (1957).
22
As the Court noted recently in Farmer v. Carpenters, supra: "[I]t is well settled that the general applicability of a state cause of action is not sufficient to exempt it from pre-emption. '[I]t [has not] mattered whether the States have acted through laws of broad general application rather than laws specifically directed towards the governance of industrial relations.' . . . Instead, the cases reflect a balanced inquiry into such factors as the nature of the federal and state interests in regulation and the potential for interference with federal regulation." 430 U.S., at 300, 97 S.Ct., at 1063. (emphasis added).
23
As Professor Cox has noted:
"[A]n antitrust statute is not the kind of general law [which should avoid the reach of the pre-emption doctrine]. Such statutes are based upon a view of policy towards combinations and collective action in the market place which is the very subject addressed by Congress in the NLRA. That the state laws primarily apply to business combinations and merely sweep collective action by employees within the same rule does not sufficiently lessen the narrowness of focus." Labor Law Preemption Revisited, 85 Harv.L.Rev. 1337, 1357 (1972).
24
"Respondent argues that Missouri is not prohibiting the IAM's conduct for any reason having to do with labor relations but rather because that conduct is in contravention of a state law which deals generally with restraint of trade. It distinguishes Garner on the ground that there the State and Congress were both attempting to regulate labor relations as such.
"We do not think this distinction is decisive. In Garner the emphasis was not on two conflicting labor statutes but rather on two similar remedies, one state and one federal, brought to bear on precisely the same conduct." 348 U.S., at 479, 75 S.Ct., at 487.
Motor Coach Employees v. Lockridge, 403 U.S. 274, 91 S.Ct. 1909, 29 L.Ed.2d 473, reaffirmed the notion that state regulation of activity arguably prohibited by the federal Act cannot avoid pre-emption simply because it is pursuant to a law of general application. In Lockridge, a union member who failed to pay his monthly dues was suspended from membership in the union and discharged from employment at union request. The union's conduct in securing Lockridge's discharge was arguably prohibited by §§ 8(b)(1)(A) and 8(b)(2) or protected by § 7. But rather than filing an unfair labor practice charge with the Labor Board, Lockridge brought suit in state court on a breach-of-contract theory. He alleged that the union breached a promise implicit in the union constitution that it would not secure his discharge pursuant to the union security clause in the collective-bargaining agreement for missing one month's dues.
The Court noted that both the state court and the Board would "inquire into the proper construction of union regulations in order to ascertain whether the union properly found [Lockridge] to have been derelict in his dues-paying responsibilities, where his discharge was procured on the asserted grounds of nonmembership in the union." 403 U.S., at 293, 91 S.Ct., at 1921. The Court further noted that the "possibility that, in defining the scope of the union's duty to [Lockridge], the state courts would directly and consciously implicate principles of federal law . . . was real and immediate. . . . Lockridge's entire case turned upon the construction of the applicable union security clause, a matter as to which . . . federal concern is pervasive and its regulation complex." Id., at 296, 91 S.Ct. at 1923. Pre-emption was required in the Court's view because the state court was exercising jurisdiction over a controversy which was virtually identical to that which could have been presented to the Board. Permitting the state court to exercise jurisdiction pursuant to a law of general application in these circumstances would have entailed a " 'real and immediate' potential for conflict with the federal scheme . . . ." Farmer v. Carpenters, 430 U.S., at 301 n. 10, 97 S.Ct., at 1064.
An identical result would undoubtedly obtain were an employer subjected to recognitional or secondary picketing to seek injunctive relief in state court on the theory that the union was tortiously interfering with his freedom to contract. Cf. Retail Clerks v. J. J. Newberry Co., 352 U.S. 987, 77 S.Ct. 386, 1 L Ed.2d 367, summarily rev'g 78 Idaho 85, 298 P.2d 375 (1956).
25
One of the factors identified by the Court was that the conduct giving rise to the state cause of action (e. g., violence, libel, or intentional infliction of emotional distress), if proved, would not be protected by § 7 of the NLRA, and therefore there existed no risk that state regulation of the conduct alleged in the complaint would result in prohibition of conduct protected by the federal Act. To this extent, the instant case is not controlled by the decision in Farmer. Sears' state cause of action was for trespass, and some trespassory union activity may be protected under the federal Act. See Part V, infra. However, two points must be made regarding the apparent distinction between Farmer and the case at bar. First, Farmer itself involved some risk that protected conduct would be regulated; for, while the complaint alleged outrageous conduct, there remained a possibility that the plaintiff would only have been able to prove a robust intra-union dispute and that the state tribunal would have found that sufficient to support recovery. Second, the distinction between this case and Farmer, to the extent that it exists, has significance only with respect to the arguably protected branch of the Garmon doctrine, which we discuss in Part V; it does not detract from the support Farmer provides for our conclusion with respect to pre-emption under the arguably prohibited branch of the do trine.
26
As the Court explained:
"If the charges in Hill's complaint were filed with the Board, the focus of any unfair labor practice proceeding would be on whether the statements or conduct on the part of the union officials discriminated or threatened discrimination against him in employment referrals for reasons other than failure to pay union dues. . . . Whether the statements or conduct of the respondents also caused Hill severe emotional distress and physical injury would play no role in the Board's disposition of the case, and the Board could not award Hill damages for pain, suffering, or medical expenses. Conversely, the state-court tort action can be adjudicated without resolution of the 'merits' of the underlying labor dispute. Recovery for the tort of emotional distress under California law requires proof that the defendant intentionally engaged in outrageous conduct causing the plaintiff to sustain mental distress. . . . The state court need not consider, much less resolve, whether a union discriminated or threatened to discriminate against an employee in terms of employment opportunities. To the contrary, the tort action can be resolved without reference to any accommodation of the special interests of unions and members in the hiring hall context.
"On balance, we cannot conclude that Congress intended to oust state-court jurisdiction over actions for tortious activity such as that alleged in this case. At the same time, we reiterate that concurrent state-court jurisdiction cannot be permitted where there is a realistic threat of interference with the federal regulatory scheme." 430 U.S., at 305, 97 S.Ct. at 1066.
27
While the distinction between a law of general applicability and a law expressly governing labor relations is, as we have noted, not dispositive for pre-emption purposes, it is of course apparent that the latter is more likely to involve the accommodation which Congress reserved to the Board. It is also evident that enforcement of a law of general applicability is less likely to generate rules or remedies which conflict with federal labor policy than the invocation of a special remedy under a state labor relations law.
28
Moreover, decision of that issue would not necessarily have determined whether the picketing could continue. For the Board could conclude that the picketing was not prohibited by either § 8(b)(4)(D) or § 8(b)(7)(C) without reaching the question whether it was protected by § 7. If the Board had concluded that the picketing was not prohibited, Sears would still have been confronted with picketing which violated state law and was arguably protected by federal law. Thus, the filing of an unfair labor practice charge could initiate complex litigation which would not necessarily lead to a resolution of the problem which led to this litigation.
29
In this opinion, the term "primary jurisdiction" is used to refer to the various considerations articulated in Garmon and its progeny that militate in favor of pre-empting state-court jurisdiction over activity which is subject to the unfair labor practice jurisdiction of the federal Board. This use of the term should not be confused with the doctrine of primary jurisdiction, which has been described by Professor Davis as follows:
"The precise function of the doctrine of primary jurisdiction is to guide a court in determining whether the court should refrain from exercising its jurisdiction until after an administrative agency has determined some question or some aspect of some question arising in the proceeding before the court.
"The doctrine of primary jurisdiction does not necessarily allocate power between courts and agencies, for it governs only the question whether court or agency will initially decide a particular issue, not the question whether court or agency will finally decide the issue." 3 K. Davis, Administrative Law Treatise § 19.01, p. 3 (1958) (emphasis in original).
While the considerations underlying Garmon are similar to those underlying the primary-jurisdiction doctrine, the consequences of the two doctrines are therefore different. Where applicable, the Garmon doctrine completely pre-empts state-court jurisdiction unless the Board determines that the disputed conduct is neither protected nor prohibited by the federal Act.
30
Although it is clear that a state court may not exercise jurisdiction over protected conduct, it is important to note that the word "protected" may refer to two quite different concepts: union conduct which the State may not prohibit and against which the employer may not retaliate because it is covered by § 7 or conduct which a State may not prohibit even though it is not covered by § 7 of the Act. The Court considered protected conduct in the latter sense in Machinists v. Wisconsin Employment Relations Comm'n, 427 U.S. 132, 96 S.Ct. 2548, 49 L.Ed.2d 396. There, the Court relied on a line of pre-emption analysis "focusing upon the crucial inquiry whether Congress intended that the conduct involved be unregulated because left 'to be controlled by the free play of economic forces.' NLRB v. Nash-Finch Co., 404 U.S. 138, 144, 92 S.Ct. 373, 30 L.Ed.2d 328 (1971)." Id., at 140, 96 S.Ct. at 553.
The Union does not claim that trespassory picketing is protected from state interference under this doctrine. We merely identify this line of pre-emption analysis in order to make it perfectly clear that it is unaffected by our consideration of the significance of the status of the picketing as arguably protected under § 7 of the Act. We also note, however, that in the cases in which pre-emption exists even though neither § 7 nor § 8 of the Act is even arguably applicable, there is, by hypothesis, no opportunity for the National Labor Relations Board to make the initial evaluation of the controversy. In these cases, the pre-emption issue is necessarily addressed in the first instance by a state tribunal, and that tribunal must decide whether or not the conduct is actually privileged from governmental regulation.
31
As noted in Part IV, supra, the primary-jurisdiction rationale of Garmon did not require pre-emption of state jurisdiction over the Union's picketing insofar as it may have been prohibited by § 8, since the controversy presented to the state court was not the same controversy which Sears could have presented to the Board. In deciding the state-law issue, the Court had no occasion to interpret or enforce the prohibitions in § 8 of the federal Act; in deciding the unfair labor practice question, the Board's sole concern would have been the objective, not the location, of the challenged picketing.
32
That accommodation would have been required only if the Board first found that the object of the picketing was to maintain area standards. Of course, if Sears had initiated the proceeding before the Board, the location of the picketing would have been entirely irrelevant and no question of accommodation would have arisen. See n.31, supra.
33
Even if Sears had elected the self-help option, it could not have been assured that the Union would have invoked the jurisdiction of the Board. The Union may well have decided that the likelihood of success was remote and outweighed by the cost of the effort and the probability that Sears in turn would have charged the Union with violating § 8(b)(4)(D) or § 8(b)(7)(C) of the Act. Moreover, if Sears had elected this option, and the pickets were evicted with more force than reasonably necessary, it might have exposed itself to tort liability under state law. We are unwilling to presume that Congress intended to require employers to pursue such a risky course in order to ensure that issues involving the scope of § 7 rights be decided only by the Labor Board.
34
"If the National Labor Relations Act provided an effective mechanism whereby an employer could obtain a determination from the National Labor Relations Board as to whether picketing is protected or unprotected, I would agree that the fact that picketing is 'arguably' protected should require state courts to refrain from interfering in deference to the expertise and national uniformity of treatment offered by the NLRB. But an employer faced with 'arguably protected' picketing is given by the present federal law no adequate means of obtaining an evaluation of the picketing by the NLRB. The employer may not himself seek a determination from the Board and is left with the unsatisfactory remedy of using 'self-help' against the pickets to try to provoke the union to charge the employer with an unfair labor practice.
"So long as employers are effectively denied determinations by the NLRB as to whether 'arguably protected' picketing is actually protected except when an employer is willing to threaten or use force to deal with picketing, I would hold that only labor activity determined to be actually, rather than arguably, protected under federal law should be immune from state judicial control. To this extent San Diego Building Trades Council v. Garmon, 359 U.S. 236, 79 S.Ct. 773, 3 L.Ed.2d 775 (1959), should be reconsidered." Longshoremen v. Ariadne Shipping Co., 397 U.S. 195, 201-202, 90 S.Ct. 872, 875, 25 L.Ed.2d 218 (WHITE, J., concurring).
35
Youngdahl v. Rainfair, Inc., 355 U.S. 131, 78 S.Ct. 206, 2 L.Ed.2d 151; Construction Workers v. Laburnum, 347 U.S. 656, 74 S.Ct. 833, 98 L.Ed. 1025.
36
Linn v. Plant Guard Workers, 383 U.S. 53, 86 S.Ct. 657, 15 L.Ed.2d 582.
37
Farmer v. Carpenters, 430 U.S. 290, 97 S.Ct. 1056, 51 L.Ed.2d 338.
38
Automobile Workers v. Russell, 356 U.S. 634, 78 S.Ct. 932, 2 L.Ed.2d 1030.
39
As the Court stated:
"The employer may not affirmatively interfere with organization; the union may not always insist that the employer aid organization. But when the inaccessibility of employees makes ineffective the reasonable attempts by nonemployees to communicate with them through the usual channels, the right to exclude from property has been required to yield to the extent needed to permit communication of information on the right to organize." 351 U.S., at 112, 76 S.Ct., at 684.
See also Central Hardware Co. v. NLRB, 407 U.S. 539, 92 S.Ct. 2238, 33 L.Ed.2d 122.
40
As the Court noted in Babcock & Wilcox :
"It is our judgment . . . that an employer may validly post his property against nonemployee distribution of union literature if reasonable efforts by the union through other available channels of communication will enable it to reach the employees with its message and if the employer's notice or order does not discriminate against the union by allowing other distribution." 351 U.S., at 112, 76 S.Ct., at 684.
41
In the absence of discrimination, the union's asserted right of access for organizational activity has generally been denied except in cases involving unique obstacles to nontrespassory methods of communication with the employees. See, e. g., NLRB v. § & H Grossinger's, Inc., 372 F.2d 26 (CA2 1967); NLRB v. Lake Superior Lumber Corp., 167 F.2d 147 (CA6 1948).
42
This assumption, however, is subject to serious question. Indeed, several factors make the argument for protection of trespassory area-standards picketing as a category of conduct less compelling than that for trespassory organizational solicitation. First, the right to organize is at the very core of the purpose for which the NLRA was enacted. Area-standards picketing, in contrast, has only recently been recognized as a § 7 right. Hod Carriers Local 41 (Calumet Contractors Assn.), 133 N.L.R.B. 512 (1961). Second, Babcock makes clear that the interests being protected by according limited-access rights to nonemployee, union organizers are not those of the organizers but of the employees located on the employer's property. The Court indicated that "no . . . obligation is owed nonemployee organizers"; any right they may have to solicit on an employer's property is a derivative of the right of that employer's employees to exercise their organization rights effectively. Area-standards picketing, on the other hand, has no such vital link to the employees located on the employer's property. While such picketing may have a beneficial effect on the compensation of those employees, the rationale for protecting area-standards picketing is that a union has a legitimate interest in protecting the wage standards of its members who are employed by competitors of the picketed employer.
43
Not only could the Union have filed an unfair labor practice charge pursuant to § 8(a)(1) of the Act at the time Sears demanded that the pickets leave its property, but the Board's jurisdiction could have been invoked and the protection of its remedial powers obtained even after the litigation in the state court had commenced or the state injunction issued. See Capital Service, Inc. v. NLRB, 347 U.S. 501, 74 S.Ct. 699, 98 L.Ed. 887; NLRB v. Nash-Finch Co., 404 U.S. 138, 92 S.Ct. 373, 30 L.Ed.2d 328.
44
The fact that Sears demanded that the Union discontinue the trespass before it initiated the trespass action is critical to our holding. While it appears that such a demand was a precondition to commencing a trespass action under California law, see 122 Cal.Rptr. 449 (1975), in order to avoid a valid claim of pre-emption it would have been required as a matter of federal law in any event.
The Board has taken the position that "a resort to court action . . . does not violate § 8(a)(1)." NLRB v. Nash-Finch Co., supra, at 142, 92 S.Ct., at 376. If the employer were not required to demand discontinuation of the trespass before proceeding in state court and the Board did not alter its position in cases of this kind, the union would be deprived of an opportunity to present the protection issue to the agency created by Congress to decide such questions. While the union's failure to invoke the Board's jurisdiction should not be a sufficient basis for pre-empting state jurisdiction, the employer should not be permitted to deprive the union of an opportunity to do so.
*
Mr. Justice POWELL's concern, post, at 213, that there is an unacceptable delay in waiting for the General Counsel to act is answered in main part by this Court's previous holdings that any obstructive picketing or threatening conduct may be directly regulated by the State. See Electrical Workers v. Wisconsin Employment Relations Bd., 315 U.S. 740, 62 S.Ct. 820, 86 L.Ed. 1154 (1942); Youngdahl v. Rainfair, Inc., 355 U.S. 131, 78 S.Ct. 206, 2 L.Ed.2d 151 (1957); cf. Automobile Workers v. Russell, 356 U.S. 634, 78 S.Ct. 932, 2 L.Ed.2d 1030 (1958). There was no hint of such a problem in this case. As the California Supreme Court notes: "It is not disputed that at all times . . . the pickets conducted themselves in a peaceful and orderly fashion. The record discloses no acts of violence, threats of violence, or obstruction of traffic." 17 Cal.3d 893, 896, 132 Cal.Rptr. 443, 446, 553 P.2d 603, 606 (1976). There is no claim made that the pickets annoyed members of the public who wished to patronize the store of petitioner Sears; such conduct would be enjoinable, Youngdahl, supra, if it had occurred. And, of course, under current NLRB law, pickets would have no right to carry on their activity within a store. Marshall Field & Co. v. NLRB, 200 F.2d 375 (CA7 1953). With respect, I do not see what "danger of violence" remains in such a situation, any more than for a business that fronts upon a public sidewalk.
The possibility of delay to which my Brother POWELL adverts is a double-edged sword. The question really is upon whom the burden of delay should be placed. If it takes the General Counsel "weeks" to decide whether to issue a § 8(a)(1) complaint, by the same token there would be no relief available against an erroneous state-court injunction interfering with protected picketing for an equal length of time. Section 10(j) permits the Board to seek injunctive relief only after the issuance of a complaint. The Board arguably might seek dissolution of a state-court order under NLRB v. Nash-Finch Co., 404 U.S. 138, 92 S.Ct. 373, 30 L.Ed.2d 328 (1971), but that remedy, too, would encompass some delay. It is worth noting that here by November 12, 1973, the picketing, confined to the public sidewalks by the California Superior Court's temporary restraining order, was abandoned as ineffective. Delay in remedy is desired by neither party in a labor dispute.
*
It is true that under this Court's decisions, state courts are not precluded from providing relief against actual or threatened violence. But in light of the "danger of violence" inherent in many instances of sustained trespassory picketing, relief often may come too late to prevent interference with the operation of the target business. Cf. People v. Bush, 39 N.Y.2d 529, 384 N.Y.S.2d 733, 349 N.E.2d 832 (1976). Moreover, as Mr. Justice Clark noted for the Court in Linn v. Plant Guard Workers, 383 U.S. 53, 64 n. 6, 86 S.Ct. 657, 664, 15 L.Ed.2d 582 (1966), "[t]he fact that the Board has no authority to grant effective relief aggravates the State's concern since the refusal to redress an otherwise actionable wrong creates disrespect for the law and encourages the victim to take matters into his own hands." The "imminent threat of violence [that] exists whenever an employer is required to resort to self-help in order to vindicate his property rights," has prompted at least one state court to retain jurisdiction to enjoin trespassory picketing even after the filing of an unfair labor practice charge with the Board. May Department Stores Co. v. Teamsters, 64 Ill.2d 153, 162-163, 355 N.E.2d 7, 10-11 (1976).
1
See infra at 225-226.
2
Garmon announced the following test of labor law pre-emption:
"When it is clear or may fairly be assumed that the activities which a State purports to regulate are protected by § 7 of the [Act] or constitute an unfair labor practice under § 8, due regard for the federal enactment requires that state jurisdiction must yield. . . . [And] [w]hen an activity is arguably subject to § 7 or § 8 of the Act, the States as well as the federal courts must defer to the exclusive competence of the National Labor Relations Board if the danger of state interference with national policy is to be averted." 359 U.S., at 244-245, 79 S.Ct., at 779-780.
This rule, which was implicit in earlier decisions, has been repeatedly reaffirmed. See, e. g., Farmer v. Carpenters, 430 U.S. 290, 97 S.Ct. 1056, 51 L.Ed.2d 338 (1977); Machinists v. Wisconsin Employment Relations Comm'n, 427 U.S. 132, 138-139, 96 S.Ct. 2548, 2552, 49 L.Ed.2d 396 (1976); Motor Coach Employees v. Lockridge, 403 U.S. 274, 91 S.Ct. 1909, 29 L.Ed.2d 473 (1971).
3
Although the Court also misapplies the "arguably prohibited" prong of the Garmon test, see n. 12, infra, I concentrate on its modification of the " rguably protected " prong because this aspect of the decision has far greater significance.
4
One danger, of course, is that a state court's misinterpretation of the federal prohibition may result in restraining conduct that in fact is protected by the Act. The "arguably protected" prong of Garmon addresses this risk. A second danger is that the state court's misconception or misapplication of the law may result in the imposition of restraints on conduct that is neither protected nor prohibited by the Act, but which Congress intended to be free from government control. See Machinists v. Wisconsin Employment Relations Comm'n, 427 U.S. 132, 96 S.Ct. 2548, 49 L.Ed.2d 396 (1976).
5
There are several arguably discrete exceptions to Garmon, all sharing a common characteristic. Each applies only in circumstances in which local adjudications will not threaten important interests protected by the Act: e. g., when a state court can ascertain the actual legal significance of particular conduct by reference to "compelling precedent applied to essentially undispute facts," Garmon, 359 U.S., at 246, 79 S.Ct., at 780, when the rule to be invoked before the state tribunal is "so structured and administered that, in virtually all instances, it is safe to presume that judicial supervision will not disserve interests promoted by the [Act]," Motor Coach Employees v. Lockridge, 403 U.S., at 297-298, 91 S.Ct., at 1923; "where the activity regulated was merely a peripheral concern of the Act [or] . . 27 touched interests so deeply rooted in local feeling and responsibility that, in the absence of compelling congressional direction, we could not infer that Congress had deprived the States of the power to act." Garmon, supra, 359 U.S., at 243-244, 79 S.Ct., at 779.
6
A second approach was suggested and rejected by Garmon itself: that state-court jurisdiction be pre-empted only when "it is clear or may fairly be assumed that the activities which a State purports to regulate are protected by § 7 of the . . . Act." 359 U.S., at 244, 79 S.Ct., at 779. This Court recognized that state and federal courts, quite simply, lack the familiarity and requisite sensitivity to labor law matters to be counted on accurately to determine which combinations of facts could "fairly be assumed" to fall within the ambit of § 7.
7
If an activity were merely a "peripheral concern" of the Act, state and federal courts presumably may restrain it even if arguably protected. See Garmon, 359 U.S., at 246, 79 S.Ct., at 780.
8
See Longshoremen v. Ariadne Shipping Co., 397 U.S. 195, 90 S.Ct. 872, 25 L.Ed.2d 218 (1970).
9
The Act provides that recognitional picketing is prohibited if no representation petition is filed within a reasonable time, not to exceed 30 days. See ante, at 186, and n. 10. Although the Board has never held that recognitional picketing is protected at the outset and for up to 30 days thereafter, this conclusion would seem to follow from its holding that "area standards" picketing is protected. See Hod Carriers (Calumet Contractors Assn.), 133 N.L.R.B. 512 (1961).
10
Although the matter is disputed, a Union representative testified that picketing from the public sidewalk adjacent to the outer perimeters of Sears' parking lot was totally ineffective and that, for this reason, the California Superior Court's temporary restraining order required the Union to abandon the picketing. App. 28.
11
Sears permitted solicitation and distribution of literature on its property in the cases of the Lion's Club white cane drive, the Salvation Army at Christmas time, and the League of Women Voters for voter registration. Id., at 14. The fact of prior solic tation simply confirms what would have been clear in any case: that the Union picketing was not incompatible with the retail operations.
12
Since the whole premise for an order effectively terminating all picketing of the Sears store could be the state court's conclusion that the picketing was prohibited by § 8(b), it is difficult to understand how the Court can assert that this is a case in which the "arguably prohibited" prong of the Garmon test is not implicated. Even if the Court is correct that the crucial consideration under that aspect of Garmon is whether the controversy in the state court would be the same as that which would have been presented to the NLRB, see ante, at 197, the test surely is satisfied here. More fundamentally, to permit a state court to enter an order which, in law and fact, prohibits picketing because of an interpretation of § 8(b) entails a substantial risk of interference with the objectives Congress sought to achieve by giving the Board exclusive jurisdiction to enforce § 8(b).
13
In Scott Hudgens, the Board held that warehouse employees of a shoe company had a § 7 right to engage in protected picketing on a privately owned shopping mall that contained one of the shoe company's retail outlets. Since the warehouse employees were no more "rightfully on the employer's premises" than were the pickets in the present case, see Hudgens v. NLRB, 424 U.S., at 521-522, n.10, 96 S.Ct., at 1037, Scott Hudgens at least indicates that the fact that an individual has no right to be on the premises is not a factor of any special significance in the context of shopping center picketing. It would be a small step to conclude that the fact the pickets were nonemployees did not, standing alone at least, counsel strongly against a finding that the trespass was unprotected.
14
The Court leaves open a host of questions concerning the availability of state-court remedies to the precise type of trespassory picketing that here occurred: Is state-court jurisdiction pre-empted when a § 8(a)(1) charge is filed before the institution of state suit? What if the § 8(a)(1) charge is filed after the employer files the state-court complaint, or after the state court has issued temporary, preliminary, or final relief; must the state-court action and state-court order be stayed pending the Board proceedings or is it up to the Board to take action to protect its jurisdiction? Since the generic situation is one in which there is no realistic possibility of violence, I think my Brother BLACKMUN's logic in answering some of these questions is unassailable, see ante, at 208-210. Indeed, I would think the Court would be compelled to extend it to a situation my Brother BLACKMUN does not address: when the state c urt has entered final relief. But especially in light of my Brother POWELL's differing views, see ante, p. 212, it can safely be predicted that the state and federal courts around the country will answer these questions in a variety of ways. A consequence surely will be that erroneous determinations of non-pre-emption will occur and rights and interests protected by the Act will be irreparably damaged before any corrective action can be taken by this Court.
15
It should be apparent that to require employees to file § 8(a)(1) charges to avoid hostile local adjudications itself would entail a certain disruption of the congressional scheme. Section 8(a)(1) was intended to afford employees a remedy in those circumstances in which they felt it was in their self-interest to seek protection by the Board. Congress by the same token plainly intended not to afford employers a remedy before the Board whenever they were confronted with arguably unprotected conduct. If the Court takes the position that employees can avoid hostile state-court adjudications of their rights only by filing § 8(a)(1) charges whenever employers threaten interference with arguably protected activity, the effect would be to stand the congressional scheme on its head. The employers would in effect be invoking the Board's jurisdiction under conditions in which the employees have no interest in obtaining the Board's protection.
| 910
|
436 U.S. 149
98 S.Ct. 1729
56 L.Ed.2d 185
FLAGG BROTHERS, INC., etc., et al., Petitioners,v.Shirley Herriott BROOKS et al. Louis J. LEFKOWITZ, Attorney General of New York, Petitioner, v. Shirley Herriott BROOKS et al. AMERICAN WAREHOUSEMEN'S ASSOCIATION, and the International Association of Refrigerated Warehouses, Inc., Petitioners, v. Shirley Herriott BROOKS et al.
Nos. 77-25, 77-37, and 77-42.
Argued Jan. 18, 1978.
Decided May 15, 1978.
Syllabus
After respondent Brooks and her family had been evicted from their apartment and their belongings had been stored by petitioner storage company, Brooks was threatened with sale of her belongings pursuant to New York Uniform Commercial Code § 7-210 unless she paid her storage account. She thereupon brought this class action under 42 U.S.C. § 1983, seeking damages and injunctive relief and a declaration that the sale pursuant to § 7-210 (which provides a procedure whereby a warehouseman conforming to the provisions of the statute may convert his lien into good title) would violate the Due Process and Equal Protection Clauses of the Fourteenth Amendment. Subsequent interventions by respondent Jones as plaintiff and petitioners warehouse associations and the New York State Attorney General as defendants were permitted. The District Court dismissed the complaint for failure to state a claim for relief under § 1983, which provides, inter alia, that every person who under color of any state statute subjects any citizen to the deprivation of any rights secured by the Constitution and federal laws shall be liable to the injured party. The Court of Appeals reversed, holding that state action might be found in the exercise by a private party of "some power delegated to it by the State which is traditionally associated with sovereignty," and that "by enacting § 7-210 New York not only delegated to the warehouseman a portion of its sovereign monopoly power over binding conflict resolution . . . but also let him, by selling stored goods, execute a lien and thus perform a function which has traditional y been that of the sheriff." Held: A warehouseman's proposed sale of goods entrusted to him for storage, as permitted by § 7-210, is not "state action," and since the allegation of the complaint failed to establish that any violation of respondents' Fourteenth Amendment rights was committed by either the storage company or the State of New York, the District Court properly concluded that no claim for relief was stated by respondents under 42 U.S.C. § 1983. Pp. 155-166.
(a) Respondents' failure to allege the participation of any public officials in the proposed sale plainly distinguishes this litigation from decisions such as North Georgia Finishing, Inc. v. Di-Chem, Inc., 419 U.S. 601, 95 S.Ct. 719, 42 L.Ed.2d 751; Fuentes v. Shevin, 407 U.S. 67, 92 S.Ct. 1983, 32 L.Ed.2d 556; and Sniadach v. Family Finance Corp., 395 U.S. 337, 89 S.Ct. 1820, 23 L.Ed.2d 349, which imposed procedural restrictions on creditors' remedies. P. 157.
(b) The challenged statute does not delegate to the storage company an exclusive prerogative of the sovereign. Other remedies for the settlement of disputes between debtors and creditors (which is not traditionally a public function) remain available to the parties. Terry v. Adams, 345 U.S. 461, 73 S.Ct. 809, 97 L.Ed.2d 1152; Smith v. Allwright, 321 U.S. 649, 64 S.Ct. 757, 88 L.Ed. 987; Nixon v. Condon, 286 U.S. 73, 52 S.Ct. 484, 76 L.Ed. 984; and Marsh v. Alabama, 326 U.S. 501, 66 S.Ct. 276, 90 L.Ed. 265, distinguished. Pp. 157-163.
(c) Though respondents contend that the State authorized and encouraged the storage company's action by enacting § 7-210, a State's mere acquiescence in a private action does not convert such action into that of the State. Moose Lodge No. 107 v. Irvis, 407 U.S. 163, 92 S.Ct. 1965, 32 L.Ed.2d 267. Pp. 164-166.
553 F.2d 764, reversed.
Alvin Altman, New York City, for petitioners Flagg Brothers, Inc., etc., et al.
A. Seth Greenwald, New York City, for petitioner Louis J. Lefkowitz, Atty. Gen.
Martin A. Schwartz, New York City, for respondents.
Robert S. Catz, Antioch School of Law, Washington, D.C., amicus curiae, for the Urban Law Institute.
Mr. Justice REHNQUIST delivered the opinion of the Court.
1
The question presented by this litigation is whether a warehouseman's proposed sale of goods entrusted to him for storage, as permitted by New York Uniform Commercial Code § 7-210 (McKinney 1964),1 is an action properly attributable to the State of New York. The District Court found that the warehouseman's conduct was not that of the State, and dismissed this suit for want of jurisdiction under 28 U.S.C. § 1343(3). 404 F.Supp. 1059 (S.D.N.Y.1975). The Court of Appeals for the Second Circuit, in reversing the judgment of the District Court, found sufficient state involvement with the proposed sale to invoke the provisions of the Due Process Clause of the Fourteenth Amendment. 553 F.2d 764 (1977). We agree with the District Court, and we therefore reverse.
2
* According to her complaint, the allegations of which we must accept as true, respondent Shirley Brooks and her family were evicted from their apartment in Mount Vernon, N.Y., on June 13, 1973. The city marshal arranged for Brooks' possessions to be stored by petitioner Flagg Brothers, Inc., in its warehouse. Brooks was informed of the cost of moving and storage, and she instructed the workmen to proceed, although she found the price too high. On August 25, 1973, after a series of disputes over the validity of the charges being claimed by petitioner Flagg Brothers, Brooks received a letter demanding that her account be brought up to date within 10 days "or your furniture will be sold." App. 13a. A seri § of subsequent letters from respondent and her attorneys produced no satisfaction.
3
Brooks thereupon initiated this class action in the District Court under 42 U.S.C. § 1983, seeking damages, an injunction against the threatened sale of her belongings, and the declaration that such a sale pursuant to § 7-210 would violate the Due Process and Equal Protection Clauses of the Fourteenth Amendment. She was later joined in her action by Gloria Jones, another resident of Mount Vernon whose goods had been stored by Flagg Brothers following her eviction. The American Warehousemen's Association and the International Association of Refrigerated Warehouses, Inc., moved to intervene as defendants, as did the Attorney General of New York, and others seeking to defend the constitutionality of the challenged statute.2 On July 7, 1975, the District Court, relying primarily on our decision in Jackson v. Metropolitan Edison Co., 419 U.S. 345, 95 S.Ct. 449, 42 L.Ed.2d 447 (1974), dismissed the complaint for failure to state a claim for relief under § 1983.
4
A divided panel of the Court of Appeals reversed.3 The majority noted that Jackson had suggested that state action might be found in the exercise by a private party of " 'some power delegated to it by the State which is traditionally associated with sovereignty.' " 553 F.2d, at 770, quoting 419 U.S., at 353, 95 S.Ct., at 454. The majority found:
5
"[B]y enacting § 7-210, New York not only delegated to the warehouseman a portion of its sovereign monopoly power over binding conflict resolution [citations omitted], but also let him, by selling stored goods, execute a lien and thus perform a function which has traditionally been that of the sheriff." 553 F.2d, at 771.
6
The court, although recognizing that the Court of Appeals for the Ninth Circuit had reached a contrary conclusion in dealing with an identical California statute in Melara v. Kennedy, 541 F.2d 802 (1976), concluded that this delegation of power constituted sufficient state action to support fede al jurisdiction under 28 U.S.C. § 1343(3). The dissenting judge found the reasoning of Melara persuasive.
7
We granted certiorari, 434 U.S. 817, 98 S.Ct. 54, 54 L.Ed.2d 72, to resolve the conflict over this provision of the Uniform Commercial Code, in effect in 49 States and the District of Columbia, and to address the important question it presents concerning the meaning of "state action" as that term is associated with the Fourteenth Amendment.4
II
8
A claim upon which relief may be granted to respondents against Flagg Brothers under § 1983 must embody at least two elements. Respondents are first bound to show that they have been deprived of a right "secured by the Constitution and the laws" of the United States. They must secondly show that Flagg Brothers deprived them of this right acting "under color of any statute" of the State of New York. It is clear that these two elements denote two separate areas of inquiry. Adickes v. S. H. Kress & Co., 398 U.S. 144, 150, 90 S.Ct. 1598, 1604, 26 L.Ed.2d 142 (1970).
9
Respondents allege in their complaints that "the threatened sale of the goods pursuant to New York Uniform Commercial Code § 7-210" is an action under color of state law. App. 14a, 47a. We have previously noted, with respect to a private individual, that "[w]hatever else may also be necessary to show that a person has acted 'under color of [a] statute' for purposes of § 1983, . . . we think it essential that he act with the knowledge of and pursuant to that statute." Adickes, supra, at 162 n.23, 90 S.Ct. at 1611. Certainly, the complaints can be fairly read to allege such knowledge on the part of Flagg Brothers. However, we need not determine whether any further showing is necessary, since it is apparent that neither respondent has alleged facts which constitute a deprivation of any right "secured by the Constitution and laws" of the United States.
10
A moment's reflection will clarify the essential distinction between the two elements of a § 1983 action. Some rights established either by the Constitution or by federal law are protected from both governmental and private deprivation. See, e.g., Jones v. Alfred H. Mayer Co., 392 U.S. 409, 422-424, 88 S.Ct. 2186, 2194, 2195, 20 L.Ed.2d 1189 (1968) (discussing 42 U.S.C. § 1982). Although a private person may cause a deprivation of such a right, he may be subjected to liability under § 1983 only when he does so under color of law. Cf. 392 U.S., at 424-425 and n.33, 88 S.Ct. at 2195. However, most rights secured by the Constitution are protected only against infringement by governments. See, e.g., Jackson, 419 U.S., at 349, 95 S.Ct., at 452; Civil Rights Cases, 109 U.S. 3, 17-18, 3 S.Ct. 18, 25-26, 27 L.Ed. 835 (1883). Here, respondents allege that Flagg Brothers has deprived them of their right, secured by the Fourteenth Amendment, to be free from state deprivations of property without due process of law. Thus, they must establish not only that Flagg Brothers acted under color of the challenged statute, but also that its actions are properly attributable to the State of New York.
11
It must be noted that respondents have named no public officials as defendants in this action. The City Marshal, who supervised their evictions, was dismissed from the case by the consent of all the parties.5 This total absence of overt official involvement plainly distinguishes this case from earlier decisions imposing procedural restrictions on creditors' remedies such as North Georgia Finishing, Inc. v. Di-Chem, Inc., 419 U.S. 601, 95 S.Ct. 719, 42 L.Ed.2d 751 (1975); 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). In thos cases, the Court was careful to point out that the dictates of the Due Process Clause "attac[h] only to the deprivation of an interest encompassed within the Fourteenth Amendment's protection." Fuentes, supra, 407 U.S. at 84, 92 S.Ct. at 1996. While as a factual matter any person with sufficient physical power may deprive a person of his property, only a State or a private person whose action "may be fairly treated as that of the State itself," Jackson, supra, 419 U.S. at 351, 95 S.Ct. at 453, may deprive him of "an interest encompassed within the Fourteenth Amendment's protection," Fuentes, supra, 407 U.S. at 84, 92 S.Ct. at 1996. Thus, the only issue presented by this case is whether Flagg Brothers' action may fairly be attributed to the State of New York. We conclude that it may not.
III
12
Respondents' primary contention is that New York has delegated to Flagg Brothers a power "traditionally exclusively reserved to the State." Jackson, supra, 419 U.S. at 352, 95 S.Ct. at 454. They argue that the resolution of private disputes is a traditional function of civil government, and that the State in § 7-210 has delegated this function to Flagg Brothers. Respondents, however, have read too much into the language of our previous cases. While many functions have been traditionally performed by governments, very few have been "exclusively reserved to the State."
13
One such area has been elections. While the Constitution protects private rights of association and advocacy with regard to the election of public officials, our cases make it clear that the conduct of the elections themselves is an exclusively public function. This principle was established by a series of cases challenging the exclusion of blacks from participation in primary elections in Texas. Terry v. Adams, 345 U.S. 461, 73 S.Ct. 809, 97 L.Ed. 1152 (1953); Smith v. Allwright, 321 U.S. 649, 64 S.Ct. 757, 88 L.Ed. 987 (1944); Nixon v. Condon, 286 U.S. 73, 52 S.Ct. 484, 76 L.Ed. 984 (1932). Although the rationale of these cases may be subject to some dispute,6 their scope is carefully defined. The doctrine does not reach to all forms of private political activity, but encompasses only state-regulated elections or elections conducted by organizations which in practice produce "the uncontested choice of public officials." Terry, supra, 345 U.S. at 484, 73 S.Ct. at 820 (Clark, J., concurring). As Mr. Justice Black described the situation in Terry, supra, at 469, 73 S.Ct. at 813: "The only election that has counted in this Texas county for more than fifty years has been that held by the Jaybirds from which Negroes were excluded."7
14
A second line of cases under the public-function doctrine originated withMarsh v. Alabama, 326 U.S. 501, 66 S.Ct. 276, 90 L.Ed. 265 (1946). Just as the Texas Democratic Party in Smith and the Jaybird Democratic Association in Terry effectively performed the entire ublic function of selecting public officials, so too the Gulf Shipbuilding Corp. performed all the necessary municipal functions in the town of Chickasaw, Ala., which it owned. Under those circumstances, the Court concluded it was bound to recognize the right of a group of Jehovah's Witnesses to distribute religious literature on its streets. The Court expanded this municipal-function theory in Amalgamated Food Employees Union v. Logan Valley Plaza, Inc., 391 U.S. 308, 88 S.Ct. 1601, 20 L.Ed.2d 603 (1968), to encompass the activities of a private shopping center. It did so over the vigorous dissent of Mr. Justice Black, the author of Marsh. As he described the basis of the Marsh decision:
15
"The question is, Under what circumstances can private property be treated as though it were public? The answer that Marsh gives is when that property has taken on all the attributes of a town, i. e., 'residential buildings, streets, a system of sewers, a sewage disposal plant and a "business block" on which business places are situated.' 326 U.S. at 502, 66 S.Ct. 276." 391 U.S., at 332, 88 S.Ct. at 1615 (dissenting opinion).
16
This Court ultimately adopted Mr. Justice Black's interpretation of the limited reach of Marsh in Hudgens v. NLRB, 424 U.S. 507, 96 S.Ct. 1029, 47 L.Ed.2d 196 (1976), in which it announced the overruling of Logan Valley.
17
These two branches of the public-function doctrine have in common the feature of exclusivity.8 Although the elections held by the Democratic Party and its affiliates were the only meaningful elections in Texas, and the streets owned by the Gulf Shipbuilding Corp. were the only streets in Chickasaw, the proposed sale by Flagg Brothers under § 7-210 is not the only means of resolving this purely private dispute. Respondent Brooks has never alleged that state law barred her from seeking a waiver of Flagg Brothers' right to sell her goods at the time she authorized their storage. Presumably, respondent Jones, who alleges that she never authorized the storage of her goods, could have sought to replevy her goods at any time under state law. See N.Y.Civ.Prac.Law § 7101 et seq. (McKinney 1963). The challenged statute itself provides a damages remedy against the warehouseman for violations of its provisions. N.Y.U.C.C. § 7-210(9) (McKinney 1964). This system of rights and remedies, recognizing the traditional place of private arrangements in ordering relationships in the commercial world,9 can hardly be said to have delegated to Flagg Brothers an exclusive prerogative of the sovereign.10
18
Whatever the particular remedies available under New York law, we do not consider a more detailed description of them necessary to our conclusion that the settlement of disputes between debtors and creditors is not traditionally an exclusive public function.11 Cf. United States v. Kras, 409 U.S. 434, 445-446, 93 S.Ct. 631, 637-638, 34 L.Ed.2d 626 (1973). Creditors and debtors have had available to them historically a far wider number of choices than has one who would be an elected public official, or a member of Jehovah's Witnesses who wished to distribute literature in Chickasaw, Ala., at the time Marsh was decided. Our analysis requires no parsing of the difference between various commercial liens and other remedies to support the conclusion that this entire field of activity is outside the scope of Terry and Marsh.12 This is true whether these commercial rights and remedies are created by statute or decisional law. To rely upon the historical antecedents of a particular practice would result in the constitutional condemnation in one State of a remedy found perfectly permissible in another. Compare Cox Bakeries v. Timm Moving & Storage, 554 F.2d 356, 358-359 (CA8 1977), withMelara, 541 F.2d, at 05-806, and n.7. Cf. Bell v. Maryland, 378 U.S. 226, 334-335, 84 S.Ct. 1814, 1872-1873, 12 L.Ed.2d 822 (1964) (Black, J., dissenting).13
19
Thus, even if we were inclined to extend the sovereign-function doctrine outside of its present carefully confined bounds, the field of private commercial transactions would be a particularly inappropriate area into which to expand it. We conclude that our sovereign-function cases do not support a finding of state action here.
20
Our holding today impairs in no way the precedential value of such cases as Norwood v. Harrison, 413 U.S. 455, 93 S.Ct. 2804, 37 L.Ed.2d 723 (1973), or Gilmore v. City of Montgomery, 417 U.S. 556, 94 S.Ct. 2416, 41 L.Ed.2d 304 (1974), which arose in the context of state and municipal programs which benefited private schools engaging in racially discriminatory admissions practices following judicial decrees desegregating public school systems. And we would be remiss if we did not note that there are a number of state and municipal functions not covered by our election cases or governed by the reasoning of Marsh which have been administered with a greater degree of exclusivity by States and municipalities than has the function of so-called "dispute resolution." Among these are such functions as education, fire and police protection, and tax collection.14 We express no view as to the extent, if any, to which a city or State might be free to delegate to private parties the performance of such functions and thereby avoid the strictures of the Fourteenth Amendment. The mere recitation of these possible permutations and combinations of factual situations suffices to caution us that their resolution should abide the necessity of deciding them.
IV
21
Respondents further urge that Flagg Brothers' proposed action is properly attributable to the State because the State has authorized and encouraged it in enacting § 7-210. Our cases state "that a State is responsible for the . . . act of a private party when the State, by its law, has compelled the act." Adickes, 398 U.S., at 170, 90 S.Ct., at 1615. This Court, however, has never held that a State's mere acquiescence in a private action converts that action into that of the State. The Court rejected a similar argument in Jackson, 419 U.S., at 357, 95 S.Ct., at 456:
22
"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.' " (Emphasis added.)
23
The clearest demonstration of this distinction appears in Moose Lodge No. 107 v. Irvis, 407 U.S. 163, 92 S.Ct. 1965, 32 L.Ed.2d 627 (1972), which held that the Commonwealth of Pennsylvania, although not responsible for racial discrimination voluntarily practiced by a private club, could not by law require the club to comply with its own discriminatory rules. These cases clearly rejected the notion that our prior cases permitted the imposition of Fourteenth Amendment restraints on private action by the simple device of characterizing the State's inaction as "authorization" or "encouragement." See id., at 190, 92 S.Ct. at 1979 (Brennan, J., dissenting).
24
It is quite immaterial that the State has embodied its decision not to act in statutory form. If New York had no commercial statutes at all, its courts would still be faced with the decision whether to prohibit or to permit the sort of sale threatened here the first time an aggrieved bailor came before them for relief. A judicial decision to deny relief would be no less an "authorization" or "encouragement" of that sale than the legislature's decision embodied in this statute. It was recognized in the earliest interpretations of the Fourteenth Amendment "that a State may act through different agencies,—either by its legislative, its executive, or its judicial authorities; and the prohibitions of the amendment extend to all action of the State" infringing rights protected thereby. Virginia v. Rives, 100 U.S. 313, 318, 25 L.Ed. 667 (1880). If the mere denial of judicial relief is considered sufficient encouragement to make the State responsible for those private acts, all private deprivations of property would be converted into public acts whenever the State, for whatever reason, denies relief sought by the putative property owner.
25
Not only is this notion completely contrary to that "essential dichotomy," Jackson, supra, 419 U.S. at 349, 95 S.Ct. at 452, between public and private acts, but it has been previously rejected by this Court. In Evans v. Abney, 396 U.S. 435, 458, 90 S.Ct. 628, 640, 24 L.Ed.2d 634 (1970), our Brother BRENNAN in dissent contended that a Georgia statutory provision authorizing the establishment of trusts for racially restricted parks conferred a "special power" on testators taking advantage of the provision. The Court nevertheless concluded that the State of Georgia was in no way responsible for the purely private choice involved in that case. By the same token, the State of New York is in no way responsible for Flagg Brothers' decision, a decision which the State in § 7-210 permits but does not compel, to threaten to sell these respondents' belongings.
26
Here, the State of New York has not compelled the sale of a bailor's goods, but has merely announced the circumstances under which its courts will not interfere with a private sale. Indeed, the crux of respondents' complaint is not that the State has acted, but that it has refused to act. This statutory refusal to act is no different in principle from an ordinary statute of limitations whereby the State declines to provide a remedy for private deprivations of property after the passage of a given period of time.
27
We conclude that the allegations of these complaints do not establish a violation of these respondents' Fourteenth Amendment rights by either petitioner Flagg Brothers or the State of New York. The District Court properly concluded that their complaints failed to state a claim for relief under 42 U.S.C. § 1983. The judgment of the Court of Appeals holding otherwise is
28
Reversed.
29
Mr. Justice BRENNAN took no part in the consideration or decision of these cases.
30
Mr. Justice MARSHALL, dissenting.
31
Although I join my Brother STEVENS' dissenting opinion, I write separately to emphasize certain aspects of the majority opinion that I find particularly disturbing.
32
I cannot remain silent as the Court demonstrates, not for the first time, an attitude of callous indifference to the realities of life for the poor. See, e. g., Beal v. Doe, 432 U.S. 438, 455-457, 97 S.Ct. 2366, 2394, 2395-2396, 53 L.Ed.2d 464 (1977) (MARSHALL, J., dissenting); United States v. Kras, 409 U.S. 434, 458-460, 93 S.Ct. 631, 644-645, 34 L.Ed.2d 626 (1973) (MARSHALL, J., dissenting). It blandly asserts that "respondent Jones . . . could have sought to replevy her goods at any time under state law." Ante, at 160. In order to obtain replevin in New York, however, respondent Jones would first have had to present to a sheriff an "undertaking" from a surety by which the latter would be bound to pay "not less than twice the value" of the goods involved and perhaps substantially more, depending in part on the size of the potential judgment against the debtor. N.Y.Civ.Prac.Law § 7102(e) (McKinney Supp. 1977). Sureties do not provide such bonds without receiving both a substantial payment in advance and some assurance of the debtor's ability to pay any judgment awarded.
33
Respondent Jones, according to her complaint, took home $87 per week from her job, had been evicted from her apartment, and faced a potential liability to the warehouseman of at least $335, an amount she could not afford. App. 44a-46a. The Court's assumption that respondent would have been able to obtain a bond, and thus secure return of her household goods, must under the circumstances be regarded as highly questionable.1 While the Court is technically correct that respondent "could have sought" replevin, it is also true that, given adequate funds, respondent could have paid her rent and remained in her apartment, thereby avoiding eviction and the seizure of her househol § goods by the warehouseman. But we cannot close our eyes to the realities that led to this litigation. Just as respondent lacked the funds to prevent eviction, it seems clear that, once her goods were seized, she had no practical choice but to leave them with the warehouseman, where they were subject to forced sale for nonpayment of storage charges.
34
I am also troubled by the Court's cavalier treatment of the place of historical factors in the "state action" inquiry. While we are, of course, not bound by what occurred centuries ago in England, see ante, at 163 n. 13, the test adopted by the Court itself requires us to decide what functions have been "traditionally exclusively reserved to the State," Jackson v. Metropolitan Edison Co., 419 U.S. 345, 352, 95 S.Ct. 449, 454, 12 L.Ed.2d 447 (1974) (emphasis added). Such an issue plainly cannot be resolved in a historical vacuum. New York's highest court has stated that "[i]n [New York] the execution of a lien . . . traditionally has been the function of the Sheriff." Blye v. Globe-Wernicke Realty Co., 33 N.Y.2d 15, 20, 347 N.Y.S.2d 170, 175, 300 N.E.2d 710, 713-714 (1973). Numerous other courts, in New York and elsewhere, have reached a similar conclusion. See, e. g., Sharrock v. Dell Buick-Cadillac, Inc., 56 App.Div.2d 446, 455, 393 N.Y.S.2d 166, 171 (1977) ("[T]he garageman in executing his lien . . . is performing the traditional function of the Sheriff and is clothed with the authority of State law"); Parks v. "Mr. Ford," 556 F.2d 132, 141 (CA3 1977) (en banc) ("Pennsylvania has quite literally delegated to private individuals, [forced-sale] powers 'traditionally exclusively reserved' to sheriffs and constables"); Cox Bakeries, Inc. v. Timm Moving & Storage, Inc., 554 F.2d 356, 358 (CA8 1977) (Clark, J.) (by giving a warehouseman forced-sale powers, "the state has delegated the traditional roles of judge, jury and sheriff"); Hall v. Garson, 430 F.2d 430, 439 (CA5 1970) ("[T]he execution of a lien . . . has in Texas traditionally been the function of the Sheriff or constable").
35
By ignoring this history, the Court approaches the question before us as if it can be decided without reference to the role that the State has always played in lien execution by forced sale. In so doing, the Court treats the State as if it were, to use the Court's words, "a monolithic, abstract concept hovering in the legal stratosphere." Ante, at 160 n. 10. The state-action doctrine, as developed in our past cases, requires that we come down to earth and decide the issue here with careful attention to the State's traditional role.
36
I dissent.
37
Mr. Justice STEVENS, with whom Mr. Justice WHITE and Mr. Justice MARSHALL join, dissenting.
38
Respondents contend that petitioner Flagg Brothers' proposed sale of their property to third parties will violate the Due Process Clause of the Fourteenth Amendment. Assuming, arguendo, that the procedure to be followed would be inadequate if the sale were conducted by state officials, the Court holds that respondents have no federal protection because the case involves nothing more than a private deprivation of their property without due process of law. In my judgment the Court's holding is fundamentally inconsistent with, if not foreclosed by, our prior decisions which have imposed procedural restrictions on the State's authorization of certain creditors' remedies. See North Georgia Finishing, Inc. v. Di-Chem, Inc., 419 U.S. 601, 95 S.Ct. 719, 42 L.Ed.2d 751; Fuentes v. Shevin, 407 U.S. 67, 92 S.Ct. 1983, 32 L.Ed.2d 556; Sniadach v. Family Finance C rp., 395 U.S. 337, 89 S.Ct. 1820, 23 L.Ed.2d 349.
39
There is no question in this case but that respondents have a property interest in the possessions that the warehouseman proposes to sell.1 It is also clear that, whatever power of sale the warehouseman has, it does not derive from the consent of the respondents.2 The claimed power derives solely from the State, and specifically from § 7-210 of the New York Uniform Commercial Code. The question is whether a state statute which authorizes a private party to deprive a person of his property without his consent must meet the requirements of the Due Process Clause of the Fourteenth Amendment. This question must be answered in the affirmative unless the State has virtually unlimited power to transfer interests in private property without any procedural protections.3
40
In determining that New York's statute cannot be scrutinized under the Due Process Clause, the Court reasons that the warehouseman's proposed sale is solely private action because the state statute "permits but does not compel" the sale, ante, at 165 (emphasis added), and because the warehouseman has not been delegated a power "exclusively reserved to the State," ante, at 158 (emphasis added). Under this approach a State could enact laws authorizing private citizens to use self-help in countless situations without any possibility of federal challenge. A state statute could authorize the warehouseman to retain all proceeds of the lien sale, even if they far exceeded the amount of the alleged debt; it could authorize finance companies to enter private homes to repossess merchandise; or indeed, it could authorize "any person with sufficient physical power," ante, at 157, to acquire and sell the property of his weaker neighbor. An attempt to challenge the validity of any such outrageous statute would be defeated by the reasoning the Court uses today: The Court's rationale would characterize action pursuant to such a statute as purely private action, which the State permits but does not compel, in an area not exclusively reserved to the State.
41
As these examples suggest, the distinctions between "permission" and "compulsion" on the one hand, and "exclusive" and "nonexclusive," on the other, cannot be determinative factors in state-action analysis. There is no great chasm between "permission" and "compulsion" requiring particular state action to fall within one or the other definitional camp. Even Moose Lodge No. 107 v. Irvis, 407 U.S. 163, 92 S.Ct. 1965, 32 L.Ed.2d 627, upon which the Court relies for its distinction between "permission" and "compulsion," recognizes that there are many interveni g levels of state involvement in private conduct that may support a finding of state action.4 In this case, the State of New York, by enacting § 7-210 of the Uniform Commercial Code, has acted in the most effective and unambiguous way a State can act. This section specifically authorizes petitioner Flagg Brothers to sell respondents' possessions; it details the procedures that petitioner must follow; and it grants petitioner the power to convey good title to goods that are now owned by respondents to a third party.5
42
While Members of this Court have suggested that statutory authorization alone may be sufficient to establish state action,6 it is not necessary to rely on those suggestions in this case because New York has authorized the warehouseman to perform what is clearly a state function. The test of what is a state function for purposes of the Due Process Clause has been variously phrased. Most frequently the issue is presented in terms of whether the State has delegated a function traditionally and historically associated with sovereignty. See, e. g., Jackson v. Metropolitan Edison Co., 419 U.S. 345, 353, 95 S.Ct. 449, 454, 42 L.Ed.2d 447, Evans v. Newton, 382 U.S. 296, 299, 86 S.Ct. 486, 488, 15 L.Ed.2d 373. In this Court, petitioners have attempted to argue that the nonconsensual transfer of property rights is not a traditional function of the sovereign. The overwhelming historical evidence is to the contrary, however,7 and the Court wisely does not adopt this position. Instead, the Court reasons that state action cannot be found because the State has not delegated to the warehouseman an exclusive sovereign function.8 This distinction, however, is not consistent with our prior decisions on state action;9 is not even adhered to by the Court in this case;10 and, most importantly, is inconsistent with the line of cases beginning with Sniadach v. Family Finance Corp., 395 U.S. 337, 89 S.Ct. 1820, 23 L.Ed.2d 349.
43
Since Sniadach this Court has scrutinized various state statutes regulating the debtor-creditor relationship for compliance with the Due Process Clause. See also North Georgia Finishing, Inc. v. Di-Chem, Inc., 419 U.S. 601, 95 S.Ct. 719, 42 L.Ed.2d 751; Mitchell v. W. T. Grant Co., 416 U.S. 600, 94 S.Ct. 1895, 40 L.Ed.2d 406; Fuentes v. Shevin, 407 U.S. 67, 92 S.Ct. 1983, 32 L.Ed.2d 556. In each of these cases a finding of state action was a prerequisite to the Court's decision. The Court today seeks to explain these findings on the ground that in each case there was some element of "overt official involvement." Ante, at 157. Given the facts of those cases, this explanation is baffling. In North Georgia Finishing, for instance, the official involvement of the State of Georgia consisted of a court clerk who issued a writ of garnishment based solely on the affidavit of the creditor. 419 U.S., at 607, 95 S.Ct. at 722. The clerk's actions were purely ministerial, and, until today, this court had never held that purely ministerial acts of "minor governmental functionaries" were sufficient to establish state action.11 The suggestion that this was the basis for due process review in Sniadach, Shevin, and North Georgia Finishing marks a major and, in my judgment, unwise expansion of the state-action doctrine. The number of private actions in which a governmental functionary plays some ministerial role is legion;12 to base due process review on the fortuity of such governmental intervention would demean the majestic purposes of the Due Process Clause.
44
Instead, cases such as North Georgia Finishing, must be viewed as reflecting this Court's recognition of the significance of the State's role in defining and controlling the debtor-creditor relationship. The Court's language to this effect in the various debtor-creditor cases has been unequivocal. In Fuentes v. Shevin the Court stressed that the statutes in question "abdicate[d] effective state control over state power." 407 U.S., at 93, 92 S.Ct., at 2001. And it is clear that what was of concern in Shevin was the private use of state power to achieve a nonconsensual resolution of a commercial dispute. The state statutes placed the state power to repossess property in the hands of an interested private party, just as the state statute in this case places the state power to conduct judicially binding sales in satisfaction of a lien in the hands of the warehouseman.
45
"Private parties, serving their own private advantage, may unilaterally invoke state power to replevy goods from another. No state official participates in the decision to seek a writ; no state official reviews the basis for the claim to repossession; and no state official evaluates the need for immediate seizure. There is not even a requirement that the plaintiff provide any information to the court on these matters." Ibid.
46
This same point was made, equally emphatically, in Mitchell v. W. T. Grant Co., supra, 416 U.S., at 614-616, 94 S.Ct., at 1903-1904, and North Georgia Finishing, supra, 419 U.S., at 607, 95 S.Ct., at 722. Yet the very defect that made the statutes in Shevin and North Georgia Finishing unconstitutional—lack of state control—is, under today's decision, the factor that precludes constitutional review of the state statute. The Due Process Clause cannot command such incongruous results. If it is unconstitutional for a State to allow a private party to exercise a traditional state power because the state supervision of that power is purely mechanical, the State surely cannot immunize its actions from constitutional scrutiny by removing even the mechanical supervision.
47
Not only has the State removed its nominal supervision in this case,13 it has also authorized a private party to exercise a governmental power that is equally, if not more, significant than the power exercised in Shevin or North Georgia Finishing. In Shevin, the Florida statute allowed the debtor's property to be seized and held pending the outcome of the creditor's action for repossession. The property would not be finally disposed of until there was an adjudication of the underlying claim. Similarly, in North Georgia Finishing, the state statute provided for a garnishment procedure which deprived the debtor of the use of property in the garnishee's hands pending the outcome of litigation. The warehouseman's power under § 7-210 is far broader, as the Court of Appeals pointed out: "After giving the bailor speci ied notice, . . . the warehouseman is entitled to sell the stored goods in satisfaction of whatever he determines the storage charges to be. The warehouseman, unquestionably an interested party, is thus authorized by law to resolve any disputes over storage charges finally and unilaterally." 553 F.2d 764, 771.
48
Whether termed "traditional," "exclusive," or "significant," the state power to order binding, nonconsensual resolution of a conflict between debtor and creditor is exactly the sort of power with which the Due Process Clause is concerned. And the State's delegation of that power to a private party is, accordingly, subject to due process scrutiny. This, at the very least, is the teaching of Sniadach, Shevin, and North Georgia Finishing.
49
It is important to emphasize that, contrary to the Court's apparent fears, this conclusion does not even remotely suggest that "all private deprivations of property [will] be converted into public acts whenever the State, for whatever reason, denies relief sought by the putative property owner." Ante, at 165. The focus is not on the private deprivation but on the state authorization. "[W]hat is always vital to remember is that it is the state's conduct, whether action or inaction, not the private conduct, that gives rise to constitutional attack." Friendly, The Dartmouth College Case and The Public-Private Penumbra, 12 Texas Quarterly, No. 2, p. 17 (1969) (Supp.) (emphasis in original). The State's conduct in this case takes the concrete form of a statutory enactment, and it is that statute that may be challenged.
50
My analysis in this case thus assumes that petitioner Flagg Brothers' proposed sale will conform to the procedure specified by the state legislature and that respondents' challenge therefore will be to the constitutionality of that process. It is only what the State itself has enacted that they may ask the federal court to review in a § 1983 case. If there should be a deviation from the state statute—such as a failure to give the notice required by the state law—the defect could be remedied by a state court and there would be no occasion for § 1983 relief. This point has been well established ever since this Court's first explanations of the state-action doctrine in the Civil Rights Cases, 109 U.S. 3, 17, 3 S.Ct. 18, 25, 27 L.Ed. 835:
51
"[C]ivil rights, such as are guaranteed by the Constitution against State aggression, cannot be impaired by the wrongful acts of individuals, unsupported by State authority in the shape of laws, customs, or judicial or executive proceedings. The wrongful act of an individual, unsupported by any such authority, is simply a private wrong, or a crime of that individual; . . . but if not sanctioned in some way by the State, or not done under State authority, his rights remain in full force, and may presumably be vindicated by resort to the laws of the State for redress."14
52
On the other hand, if there is compliance with the New York statute, the state legislative action which enabled the deprivation to take place must be subject to constitutional challenge in a federal court.15 Under this approach, the f deral courts do not have jurisdiction to review every foreclosure proceeding in which the debtor claims that there has been a procedural defect constituting a denial of due process of law. Rather, the federal district court's jurisdiction under § 1983 is limited to challenges to the constitutionality of the state procedure itself—challenges of the kind considered in North Georgia Finishing and Shevin.
53
Finally, it is obviously true that the overwhelming majority of disputes in our society are resolved in the private sphere. But it is no longer possible, if it ever was, to believe that a sharp line can be drawn between private and public actions.16 The Court today holds that our examination of state delegations of power should be limited to those rare instances where the State has ceded one of its "exclusive" powers. As indicated, I believe that this limitation is neither logical nor practical. More troubling, this description of what is state action does not even attempt to reflect the concerns of the Due Process Clause, for the state-action doctrine is, after all, merely one aspect of this broad constitutional protection.
54
In the broadest sense, we expect government "to provide a reasonable and fair framework of rules which facilitate commercial transactions . . . ." Mitchell v. W. T. Grant Co., 416 U.S., at 624, 94 S.Ct., at 1908. (Powell, J., concurring). This "framework of rules" is premised on the assumption that the State will control nonconsensual deprivations of property and that the State's control will, in turn, be subject to the restrictions of the Due Process Clause.17 The power to order legally binding surrenders of property and the constitutional restrictions on that power are necessary correlatives in our system. In effect, today's decision allows the State to divorce these two elements by the simple expedient of transferring the implementation of its policy to private parties. Because the Fourteenth Amendment does not countenance such a division of power and responsibility, I respectfully dissent.
1
The challenged statute reads in full:
"§ 7-210. Enforcement of Warehouseman's Lien
"(1) Except as provided in subsection (2), a warehouseman's lien may be enforced by public or private sale of the goods in bloc or in parcels, at any time or place and on any terms which are commercially reasonable, after notifying all persons known to claim an interest in the goods. Such notification must include a statement of the amount due, the nature of the proposed sale and the time and place of any public sale. The fact that a better price could have been obtained by a sale at a different time or in a different method from that selected by the warehouseman is not of itself sufficient to establish that the sale was not made in a commercially reasonable manner. If the warehouseman either sells the goods in the usual manner in any recognized market therefor, or if he sells at the price current in such market at the tim of his sale, or if he has otherwise sold in conformity with commercially reasonable practices among dealers in the type of goods sold, he has sold in a commercially reasonable manner. A sale of more goods than apparently necessary to be offered to insure satisfaction of the obligation is not commercially reasonable except in cases covered by the preceding sentence.
"(2) A warehouseman's lien on goods other than goods stored by a merchant in the course of his business may be enforced only as follows:
"(a) All persons known to claim an interest in the goods must be notified.
"(b) The notification must be delivered in person or sent by registered or certified letter to the last known address of any person to be notified.
"(c) The notification must include an itemized statement of the claim, a
description of the goods subject to the lien, a demand for payment within a specified time not less than ten days after receipt of the notification, and a conspicuous statement that unless the claim is paid within that time the goods will be advertised for sale and sold by auction at a specified time and place.
"(d) The sale must conform to the terms of the notification.
"(e) The sale must be held at the nearest suitable place to that where the goods are held or stored.
"(f) After the expiration of the time given in the notification, an advertisement of the sale must be published once a week for two weeks consecutively in a newspaper of general circulation where the sale is to be held. The advertisement must include a description of the goods, the name of the person on whose account they are being held, and the time and place of the sale. The sale must take place at least fifteen days after the first publication. If there is no newspaper of general circulation where the sale is to be held, the advertisement must be posted at least ten days before the sale in not less than six conspicuous places in the neighborhood of the proposed sale.
"(3) Before any sale pursuant to this section any person claiming a right in the goods may pay the amount necessary to satisfy the lien and the reasonable expenses incurred under this section. In that event the goods must not be sold, but must be retained by the warehouseman subject to the terms of the receipt and this Article.
"(4) The warehouseman may buy at any public sale pursuant to this section.
"(5) A purchaser in good faith of goods sold to enforce a warehouseman's lien takes the goods free of any rights of persons against whom the lien was valid, despite noncompliance by the warehouseman with the requirements of this section.
"(6) The warehouseman may satisfy his lien from the proceeds of any sale pursuant to this section but must hold the balance, if any, for delivery on demand to any person to whom he would have been bound to deliver the goods.
"(7) The rights provided by this section shall be in addition to all other rights allowed by law to a creditor against his debtor.
"(8) Where a lien is on goods stored by a merchant in the course of his business the lien may be enforced in accordance with either subsection (1) or (2).
"(9) The warehouseman is liable for damages caused by failure to comply with the requirements for sale under this section and in case of willful violation is liable for conversion."
2
In his order granting the motions to intervene, Judge Gurfein noted that respondent Brooks' goods had been returned to her, but he found that her action had been saved from mootness by her claim for damages. 63 F.R.D. 409, 412 (SDNY1974). We have no occasion to consider the correctness of that decision, since we have concluded, n.3, infra, that the claim of respondent Jones remains alive.
3
Jones died prior to the court's decision. However, the court concluded that, under 42 U.S.C. § 1988, her claim survived for the benefit of her estate, since a comparable claim would survive under applicable New York law. 553 F.2d, at 768 n.7. For simplicity, Jones will be referred to as a respondent herein.
The court also noted that Jones had recovered most of her possessions after the District Court's dismissal of her action. Unlike Brooks, she paid the charges demanded by Flagg Brothers, but did so "only because of alleged threats of sale and the twenty-month detention of the goods." Ibid.
At this point in the litigation, it is clear that Flagg Brothers has not sold and will not sell the belongings of either respondent. Although injunctive relief against such sale is therefore no longer available, we must reach the merits of the claim if either respondent can demonstrate that she has suffered monetary damage by reason of the workings of § 7-210. See, e.g., Liner v. Jafco, Inc., 375 U.S. 301, 305-306, 84 S.Ct. 391, 394, 11 L.Ed.2d 347 (1964). The affidavit submitted with Jones' complaint alleges that Flagg Brothers charged her an auctioneer's fee, pursuant to § 7-210(3), which she has now paid. If she is correct that the warehouseman's invocation of the statute constitutes a violation by the State itself of the Fourteenth Amendment, she would surely be entitled to recover that fee. We express no opinion as to whether she could prove other damages causally related to the threatened use of the sale provisions.
4
Even if there is "state action," the ultimate inquiry in a Fourteenth Amendment case is, of course, whether that action constitutes a denial or deprivation by the State of rights that the Amendment protects.
5
Of course, where the defendant is a public official, the two elements of a § 1983 action merge. "The involvement of a state official . . . plainly provides the state action essential to show a direct violation of petitioner's Fourteenth Amendment . . . rights, whether or not the actions of the police were officially authorized, or lawful." Adickes v. S. H. Kress & Co., 398 U.S. 144, 152, 90 S.Ct. 1598, 1605, 26 L.Ed.2d 142 (1970) (citations omitted).
6
Indeed, the majority in Terry produced three separate opinions, none of which commanded a majority of the Court.
7
In construing the public-function doctrine in the election context, the Court has given special consideration to the fact that Congress, in 42 U.S.C. § 1971(a)(1), has made special provision to protect equal access to the ballot. Terry, 345 U.S., at 468, 73 S.Ct., at 821 (opinion of Black, J.); Smith, 321 U.S., at 651, 64 S.Ct., at 758. No such congressional pronouncement speaks to the ordinary commercial transaction presented here.
8
Respondents also contend that Evans v. Newton, 382 U.S. 296, 86 S.Ct. 486, 15 L.Ed.2d 373 (1966), establishes that the operation of a park for recreational purposes is an exclusively public function. We doubt that Newton intended to establish any such broad doctrine in the teeth of the experience of several American entrepreneurs who amassed great fortunes by operating parks for recreational purposes. We think Newton rests on a finding of ordinary state action under extraordinary circumstances. The Court's opinion emphasizes that the record showed "no change in the municipal maintenance and concern over this facility," id., at 301, 86 S.Ct. at 489, after the transfer of title to private trustees. That transfer had not been shown to have eliminated the actual involvement of the city in the daily maintenance and care of the park.
9
Unlike the parade of horribles suggested by our Brother STEVENS in dissent, post, at 170, this case does not involve state authorization of private breach of the peace.
10
It is undoubtedly true, as our Brother STEVENS says in dissent, post, at 169, that "respondents have a property interest in the possessions that the warehouseman proposes to sell." But that property interest is not a monolithic, abstract concept hovering in the legal stratosphere. It is a bundle of rights in personalty, the metes and bounds of which are determined by the decisional and statutory law of the State of New York. The validity of the property interest in these possessions which respondents previously acquired from some other private person depends on New York law, and the manner in which that same property interest in these same possessions may be lost or transferred to still another private person likewise depends on New York law. It would intolerably broaden, beyond the scope of any of our previous cases, the notion of state action under the Fourteenth Amendment to hold that the mere existence of a body of property law in a State, whether decisional or statutory, itself amounted to "state action" even though no process or state officials were ever involved in enforcing that body of law.
This situation is clearly distinguishable from cases such as North Georgia Finishing, Inc. v. Di-Chem, Inc., 419 U.S. 601, 95 S.Ct. 719, 42 L.Ed.2d 751 (1975); Fuentes v. Shevin, 407 U.S. 67, 92 S.Ct. 1983, 32 L.Ed.2d 556 (1972); and Sniadach v. Family Finance Corp., 395 U.S. 337, 89 S.Ct. 1820, 23 L.Ed.2d 349 (1969). In each of those cases a government official participated in the physical deprivation of what had concededly been the constitutional plaintiff's property under state law before the deprivation occurred. The constitutional protection attaches not because, as in North Georgia Finishing, a clerk issued a ministerial writ out of the court, but because as a result of that writ the property of the debtor was seized and impounded by the affirmative command of the law of Georgia. The creditor in North Georgia Finishing had not simply sought to pursue the collection of his debt by private means permissible under Georgia law; he had invoked the authority of the Georgia court, which in turn had ordered the garnishee not to pay over money which previously had been the property of the debtor. See Virginia v. Rives, 100 U.S. 313, 318, 25 L.Ed. 667 (1880); Shelley v. Kraemer, 334 U.S. 1, 63 S.Ct. 836, 92 L.Ed. 1161 (1948).
The "consent" inquiry in Fuentes occurred only after the Court had concluded that state action for purposes of the Fourteenth Amendment was supplied by the participation in the seizure on the part of the sheriff. The consent inquiry was directed to whether there had been a waiver of the constitutional right to due process which had been triggered by state deprivation of property. But our Brother STEVENS puts the cart before the horse; he concludes that the respondents' lack of consent to the deprivations triggers affirmative constitutional protections which the State is bound to provide. Thus what was a mere coda to the constitutional analysis in Fuentes becomes the major theme of the dissent.
11
It may well be, as my Brother STEVENS' dissent contends, that "[t]he power to order legally binding surrenders of property and the constitutional restrictions on that power are necessary correlatives in our system." Post, at 178-179. But here New York, unlike Florida in Fuentes, Georgia in North Georgia Finishing, and Wisconsin in Sniadach, has not ordered respondents to surrender any property whatever. It has merely enacted a statute which provides that a warehouseman conforming to the provisions of the statute may convert his traditional lien into good title. There is no reason whatever to believe that either Flagg Brothers or respondents could not, if they wished, seek resort to the New York courts in order to either compel or prevent the "surrenders of property" to which that dissent refers, and that the compliance of Flagg Brothers with applicable New York property law would be reviewed after customary notice and hearing in such a proceeding.
The fact that such a judicial review of a self-help remedy is seldom encountered bears witness to the important part that such remedies have played in our system of property rights. This is particularly true of the warehouseman's lien, which is the source of this provision in the Uniform Commercial Code which is the law in 49 States and the District of Columbia. The lien in this case, particularly because it is burdened by procedural constraints and provides for a compensatory remedy and judicial relief against abuse, is not atypical of creditors' liens historically, whether created by statute or legislatively enacted. The conduct of private actors in relying on the rights established under these liens to resort to self-help remedies does not permit their conduct to be ascribed to the State. Cf. Steele v. Louisville & Nashville R. Co., 323 U.S. 192, 65 S.Ct. 226, 89 L.Ed. 173 (1944); Railway Employees' Dept. v. Hanson, 351 U.S. 225, 76 S.Ct. 714, 100 L.Ed. 1112 (1956).
12
This is not to say that dispute resolution between creditors and debtors involves a category of human affairs that is never subject to constitutional constraints. We merely address the public-function doctrine as respondents would apply it to this case.
Self-help of the type involved in this case is not significantly different from creditor remedies generally, whether created by common law or enacted by legislatures. New York's statute has done nothing more than authorize (and indeed limit) without participation by any public official—what Flagg Brothers would tend to do, even in the absence of such authorization, i. e., dispose of respondents' property in order to free up its valuable storage space. The proposed sale pursuant to the lien in this case is not a significant departure from traditional private arrangements.
13
See also Davis v. Richmond, 512 F.2d 201, 203 (CA1 1975):
"[W]e are disinclined to decide the issue of state involvement on the basis of whether a particular class of creditor did or did not enjoy the same freedom to act in Elizabethan or Georgian England."
14
Contrary to Mr. Justice STEVENS' suggestion, post, at 172 n.8, this Court has never considered the private exercise of traditional police functions. In Griffin v. Maryland, 378 U.S. 130, 84 S.Ct. 1770, 12 L.Ed.2d 754 (1964), the State contended that the deputy sheriff in question had acted only as a private security employee, but this Court specifically found that he "purported to exercise the authority of a deputy sheriff." Id., at 135, 84 S.Ct. at 1772. Griffin thus sheds no light on the constitutional status of private police forces, and we express no opinion here.
1
New York's replevin statutes have been challenged by poor persons on the ground that they violated equal protection because the poor could not obtain the required "undertaking." See Laprease v. Raymours Furniture Co., 315 F.Supp. 716 (NDNY 1970) (three-judge court); Tamburro v. Trama, 59 Misc.2d 488, 299 N.Y.S.2d 528 (1969).
1
Of course the warehouseman may also have a property interest and the ultimate resolution of the due process issue will require a balancing of these interests. See Mitchell v. W. T. Grant Co., 416 U.S. 600, 604, 94 S.Ct. 1895, 1898, 40 L.Ed.2d 406.
2
Although the petitioners have at various stages of this case contended that there was an "implied contract" between the warehouseman and respondents providing for the sale of respondents' possessions in satisfaction of a lien, the Court of Appeals rejected this claim, 553 F.2d 764, 767 n. 3, and petitioners conceded in this Court that, taking respondents' allegations as fact, as we must, there is no contractual issue in this case. Tr. of Oral Arg. 11.
3
It could be argued that since the State has the power to create property interests, it should also have the power to determine what procedures should attend the deprivation of those interests. See Arnett v. Kennedy, 416 U.S. 134, 153-154, 94 S.Ct. 1633, 1644-1645, 40 L.Ed.2d 15 (Rehnquist, J.). Although a majority of this Court has never adopted that position, today's opinion revives the theory in a somewhat different setting by holding that the State can shield its legislation affecting property interests from due process scrutiny by delegating authority to private parties.
4
In Moose Lodge the Court found state action on the basis of the Liquor Control Board's regulation which required that "[e]very club licensee shall adhere to all of the provisions of its Constitution and By-Laws." As the Court recognized, this regulation was neutral on its face, see 407 U.S., at 178, 92 S.Ct. at 1974, and did not compel the Lodge to adopt a discriminatory membership rule.
5
In fact, § 7-210(5) (1964) provides:
"A purchaser in good faith of goods sold to enforce a warehouseman's lien takes the goods free of any rights of persons against whom the lien was valid, despite noncompliance by the warehouseman with the requirements of this section."
6
See, e. g., Burton v. Wilmington Parking Authority, 365 U.S. 715, 726, 81 S.Ct. 856, 862, 6 L.Ed.2d 45 (Stewart, J., concurring); id., at 727, 81 S.Ct. at 862 (Frankfurter J., dissenting); and id., at 729, 81 S.Ct. at 863 (Harlan, J., dissenting).
7
The New York State courts have recognized that the execution of a lien is a traditional function of the State. See Blye v. Globe-Wernicke Realty Co., 33 N.Y.2d 15, 20, 347 N.Y.S.2d 170, 175, 300 N.E.2d 710, 713-714 (1973). See also 3 W. Blackstone, Commentaries §§ 7-11, pp. * 3-6, which notes that the right of self-help at common law was severely limited.
I fully agree with the Court that the decision of whether or not a statute is subject to due process scrutiny should not depend on " 'whether a particular class of creditor did or did not enjoy the same freedom to act in Elizabethan or Georgian England.' " Ante, at 163 n. 13 (citation omitted). Nonetheless some reference to history and well-settled practice is necessary to determine whether a particular action is a "traditional state function." See Jackson v. Metropolitan Edison Co., 419 U.S. 345, 95 S.Ct. 449, 42 L.Ed.2d 477. Indeed, in Jackson the Court specifically referred to Pennsylvania decisions, rendered in 1879 and 1898, which had rejected the contention that the fur ishing of utility services was a state function. Id., at 353, 95 S.Ct., at 454.
8
See ante, at 157-158. As I understand the Court's notion of "exclusivity," the sovereign function here is not exclusive because there may be other state remedies, under different statutes or common-law theories, available to respondents. Ante, at 159-160. Even if I were to accept the notion that sovereign functions must be "exclusive," the Court's description of exclusivity is incomprehensible. The question is whether a particular action is a uniquely sovereign function, not whether state law forecloses any possibility of recovering for damages for such activity. For instance, it is clear that the maintenance of a police force is a unique sovereign function, and the delegation of police power to a private party will entail state action. See Griffin v. Maryland, 378 U.S. 130, 84 S.Ct. 1770, 12 L.Ed.2d 754. Under the Court's analysis, however, there would be no state action if the State provided a remedy, such as an action for wrongful imprisonment, for the individual injured by the "private" policeman. This analysis is not based on "exclusivity," but on some vague, and highly inappropriate, notion that respondents should not complain about this state statute if the State offers them a glimmer of hope of redeeming their possessions, or at least the value of the goods, through some other state action. Of course, the availability of other state remedies may be relevant in determining whether the statute provides sufficient procedural protections under the Due Process Clause, but it is not relevant to the state-action issue.
9
The Court, for instance, attempts to distinguish Evans v. Newton, 382 U.S. 296, 86 S.Ct. 486, 15 L.Ed.2d 373. Newton concededly involved a function which is not exclusively sovereign the operation of a park, but the Court claims that Newton actually rested on a determination that the city was still involved in the "daily maintenance and care of the park." Ante at 159 n. 8. This stark attempt to rewrite the rationale of the Newton opinion is fully answered by Mr. Justice White's opinion in that case. Mr. Justice White observed that:
"It is . . . evident that the record does not show continued involvement of the city in the operation of the park—the record is silent on this point." 382 U.S., at 304, 86 S.Ct., at 491.
10
As the Court is forced to recognize, its notion of exclusivity simply cannot be squared with the wide range of functions that are typically considered sovereign functions, such as "education, fire and police protection, and tax collection." Ante at 163.
11
See, e. g., Parks v. "Mr. Ford", 556 F.2d 132, 148 (CA3 1977) (en banc) (Adams, J., concurring); Gibbs v. Titelman, 502 F.2d 1107, 1113 n. 17 (CA3 1974), cert. denied sub nom. Gibbs v. Garver, 419 U.S. 1039, 95 S.Ct. 526, 42 L.Ed.2d 316; Shirley v. State Nat. Bank of Connecticut, 493 F.2d 739, 743 n. 5 (CA2 1974).
12
For instance, state officials often perform ministerial acts in the transferring of ownership in motor vehicles or real estate. See Burke & Reber, State Action, Congressional Power and Creditors' Rights: An Essay on The Fourth Amendment, 47 S.Cal.L.Rev. 1, 19-23 (1973). It is difficult to believe that the Court would hold that all car sales are invested with state action. See Parks v. "Mr. Ford", supra, 556 F.2d, at 141.
13
Of course, the State does "supervise" the warehouseman's actions in the sense that it prescribes the procedures that warehousemen must follow to complete a legally binding sale.
14
Furthermore, if the warehouseman has deviated from the statutory requirements, the statute would not provide him with the kind of support that would justify the conclusion that he acted "under color of law." With respect to this requirement of § 1983, while I agree with the majority that the concepts of "under color of law" and "state action" may be separately analyzed, see Lucas v. Wisconsin Electric Co., 466 F.2d 638, 654-655 (CA7 1972), normally as a practical matter they embody the same test of state involvement. See United States v. Price, 383 U.S. 787, 794 n. 7, 86 S.Ct. 1152, 1157, 16 L.Ed.2d 267.
15
Indeed, under the Court's analysis as I understand it, the state statute in this case would not be subject to due process scrutiny in a state court.
16
See, e. g., Thompson, Piercing the Veil of State Action: The Revisionist Theory and A Mythical Application To Self-Help Repossession, 1977 Wis.L.Rev. 1; Glennon & Nowak, A Functional Analysis of the Fourteenth Amendment "State Action" Requirement, 1976 S.Ct.Rev. 221; Black, Foreword: "State Action," Equal Protection, and California's Proposition 14, 81 Harv.L.Rev. 69 (1967); Williams, The Twilight of State Action, 41 Texas L.Rev. 347 (1963); Van Alstyne & Karst, State Action, 14 Stan.L.Rev. 3 (1961).
17
Mr. Justice Harlan explained this principle as follows:
"American society, of course, bottoms its systematic definition of individual rights and duties, as well as its machinery for dispute settlement, not on custom or the will of strategically placed individuals, but on the common-law model. It is to courts, or other quasi-judicial official bodies, that we ultimately look for the implementation of a regularized, orderly process of dispute settlement. Within this framework, those who wrote our original Constitution, in the Fifth Amendment, and later those who drafted the Fourteenth Amendment, recognized the centrality of the concept of due process in the operation of this system. Without this guarantee that one may not be deprived of his rights, neither liberty nor property, without due process of law, the State's monopoly over techniques for binding conflict resolution could hardly be said to be acceptable under our scheme of things. Only by providing that the social enforcement mechanism must function strictly within these bounds can we hope to maintain an ordered society that is also just. It is upon this premise that this Court has through years of adjudication put flesh upon the due process principle." Boddie v. Connect cut, 401 U.S. 371, 375, 91 S.Ct. 780, 784, 28 L.Ed.2d 113.
| 12
|
436 U.S. 84
98 S.Ct. 1690
56 L.Ed.2d 132
Ezra KULKO, Appellant,v.SUPERIOR COURT OF CALIFORNIA IN AND FOR the CITY AND COUNTY OF SAN FRANCISCO (Sharon Kulko Horn, Real Party in Interest).
No. 77-293.
Argued March 29, 1978.
Decided May 15, 1978.
Rehearing Denied June 26, 1978.
See 438 U.S. 908, 98 S.Ct. 3127.
Syllabus.
Appellant and appellee, both then New York domiciliaries, were married in 1959 in California during appellant's three-day stopover while he was en route to overseas military duty. After the marriage, appellee returned to New York, as did appellant following his to r of duty and a 24-hour stopover in California. In 1961 and 1962 a son and daughter were born to them in New York, where the family resided together until March 1972, when appellant and appellee separated. Appellee then moved to California. Under a separation agreement, executed by both parties in New York, the children were to remain with appellant father during the school year but during specified vacations with appellee mother, whom appellant agreed to pay $3,000 per year in child support for the periods when the children were in her custody. Appellee, after obtaining a divorce in Haiti, which incorporated the terms of the separation agreement, returned to California. In December 1973 the daughter at her request and with her father's consent joined her mother in California, and remained there during the school year, spending vacations with her father. Appellee, without appellant's consent, arranged for the son to join her in California about two years later. Appellee then brought this action against appellant in California to establish the Haitian divorce decree as a California judgment, to modify the judgment so as to award her full custody of the children, and to increase appellant's child-support obligations. Appellant, resisting the claim for increased support, appeared specially, claiming that he lacked sufficient "minimum contacts" with that State under International Shoe Co. v. Washington, 326 U.S. 310, 316, 66 S.Ct. 154, 158, 90 L.Ed. 95, to warrant the State's assertion of personal jurisdiction over him. The California Supreme Court, upholding lower-court determinations adverse to appellant, concluded that where a nonresident defendant has caused an "effect" in the State by an act or omission outside the State, personal jurisdiction over the defendant arising from the effect may be exercised whenever "reasonable," and that such exercise was "reasonable" here because appellant had "purposely availed himself of the benefits and protections of California" by sending the daughter to live with her mother there, and that it was "fair and reasonable" for the defendant to be subject to personal jurisdiction for the support of both children. Held: The exercise of in personam jurisdiction by the California courts over appellant, a New York domiciliary, would violate the Due Process Clause of the Fourteenth Amendment. The mere act of sending a child to California to live with her mother connotes no intent to obtain nor expectancy of receiving a corresponding benefit in that State that would make fair the assertion of that State's judicial jurisdiction over appellant. Pp. 91-101.
(a) A defendant to be bound by a judgment against him must "have certain minimum contacts with [the forum State] such that the maintenance of the suit does not offend 'traditional notions of fair play and substantial justice.' " International Shoe Co. v. Washington, supra, at 316, 66 S.Ct. at 158 quoting Milliken v. Meyer, 311 U.S. 457, 463, 61 S.Ct. 339, 342, 85 L.Ed. 278. P. 92.
(b) The acquiescence of appellant in his daughter's desire to live with her mother in California was not enough to confer jurisdiction over appellant in the California courts. See Shaffer v. Heitner, 433 U.S. 186, 216, 97 S.Ct. 2569, 2586, 53 L.Ed.2d 683. P. 94.
(c) Exercise of in personam jurisdiction over appellant was not warranted by the financial benefit appellant derived from his daughter's presence in California for nine months of the year, since any diminution in appellant's household costs resulted not from the child's presence in California but from her absence from appellant's home, and from appellee's failure to seek an increase in support payments in New York. Pp. 94-96.
(d) The "effects" rule that the California courts applied is intended to reach wrongful activity outside of the forum State causing injury within the State where such application would not be "unreasonable," but here, where there is no claim that appellant vis ted physical injury on either property or persons in California; where the cause of action arises from appellant's personal, domestic relations; and where the controversy arises from a separation that occurred in New York, and modification is sought of a contract negotiated and signed in New York that had virtually no connection with the forum State, it is "unreasonable" for California to assert personal jurisdiction over appellant. Pp. 96-97.
(e) Since appellant remained in the State of marital domicile and did no more than acquiesce in the stated preference of his daughter to live with her mother in California, basic considerations of fairness point decisively to appellant's State of domicile as the proper forum for adjudicating this case, whatever be the merits of appellee's underlying claim. Pp. 97-98. (f) California's legitimate interest in ensuring the support of children residing in California without unduly disrupting the children's lives is already being served by the State's participation in the Uniform Reciprocal Enforcement of Support Act of 1968, which permits a California resident claiming support from a nonresident to file a petition in California and have its merits adjudicated in the State of the alleged obligor's residence, without either party's having to leave his or her own State. New York is a signatory to a similar statute. Those statutes appear to provide appellee with means to vindicate her claimed right to additional child support from appellant and collection of any support payments found to be owed to her by appellant. Pp. 98-101.
Appeal dismissed and certiorari granted; 19 Cal.3d 514, 138 Cal.Rptr. 586, 564 P.2d 353, reversed.
Lawrence H. Stotter, San Francisco, Cal., for appellant.
Suzie S. Thorn, San Francisco, Cal., for appellee.
Mr. Justice MARSHALL delivered the opinion of the Court.
1
The issue before us is whether, in this action for child support, the California state courts may exercise in personam jurisdiction over a nonresident, nondomiciliary parent of minor children domiciled within the State. For reasons set forth below, we hold that the exercise of such jurisdiction would violate the Due Process Clause of the Fourteenth Amendment.
2
* Appellant Ezra Kulko married appellee Sharon Kulko Horn in 1959, during appellant's three-day stopover in California en route from a military base in Texas to a tour of duty in Korea. At the time of this marriage, both parties were domiciled in and residents of New York State. Immediately following the marriage, Sharon Kulko returned to New York, as did appellant after his tour of duty. Their first child, Darwin, was born to the Kulkos in New York in 1961, and a year later their second child, Ilsa, was born, also in New York. The Kulkos and their two children resided together as a family in New York City continuously until March 1972, when the Kulkos separated.
3
Following the separation, Sharon Kulko moved to San Francisco, Cal. A written separation agreement was drawn up in New York; in September 1972, Sharon Kulko flew to New York City in order to sign this agreement. The agreement provided, inter alia, that the children would remain with their father during the school year but would spend their Christmas, Easter, and summer vacations with their mother. While Sharon Kulko waived any claim for her own support or maintenance, Ezra Kulko agreed to pay his wife $3,000 per year in child support for the periods when the children were in her care, custody, and control. Immediately after execution of the separation agreement, Sharon Kulko flew to Haiti and procured a divorce there;1 the divorce decree incorporated the terms of the agreement. She then returned to California, where she remarried and took the name Horn.
4
The children resided with appellant during the school year and with their mother on vacations, as provided by the separation agreement, until December 1973. At this time, just before Ilsa was to leave New York to spend Christmas vacation with her mother, she told her father that she wanted to remain in California after her vacation. Appellant bought his daughter a one-way plane ticket, and Ilsa left, taking her clothing with her. Ilsa then commenced living in California with her mother during the school year and spending vacations with her father. In January 1976, appellant's other child, Darwin, called his mother from New York and advised her that he wanted to live with her in California. Unbeknownst to appellant, appellee Horn sent a plane ticket to her son, which he used to fly to California where he took up residence with his mother and sister.
5
Less than one month after Darwin's arrival in California, appellee Horn commenced this action against appellant in the California Superior Court. She sought to establish the Haitian divorce decree as a California judgment; to modify the judgment so as to award her full custody of the children; and to increase appellant's child-support obligations.2 Appellant appeared specially and moved to quash service of the summons on the ground that he was not a resident of California and lacked sufficient "minimum contacts" with the State under International Shoe Co. v. Washington, 326 U.S. 310, 316, 66 S.Ct. 154, 158, 90 L.Ed. 95 (1945), to warrant the State's assertion of personal jurisdiction over him.
6
The trial court summarily denied the motion to quash, and appellant sought review in the California Court of Appeal by petition for a writ of mandate. Appellant did not contest the court's jurisdiction for purposes of the custody determination, but, with respect to the claim for increased support, he renewed his argument that the California courts lacked personal jurisdiction over him. The appellate court affirmed the denial of appellant's motion to quash, reasoning that, by consenting to his children's living in California, appellant had "caused an effect in th[e] state" warranting the exercise of jurisdiction over him. 133 Cal.Rptr. 627, 628 (1976).
7
The California Supreme Court granted appellant's petition for review, and in a 4-2 decision sustained the rulings of the lower state courts. 19 Cal.3d 514, 138 Cal.Rptr. 586, 564 P.2d 353 (1977). It noted first that the California Code of Civil Procedure demonstrated an intent that the courts of California utilize all bases of in personam jurisdiction "not inconsistent with the Constitution."3 Agreeing with the court below, the Supreme Court stated that, where a nonresident defendant has caused an effect in the State by an act or omission outside the State, personal jurisdiction over the defendant in causes arising from that effect may be exercised whenever "reasonable." Id., at 521, 138 Cal.Rptr., at 588, 564 P.2d, at 356. It went on to hold that such an exercise was "reasonable" in this case because appellant had "purposely availed himself of the benefits and protections of the laws of California" by sending Ilsa to live with her mother in California. Id., at 521-522, 524, 138 Cal.Rptr., at 591, 564 P.2d, at 356, 358. While noting that appellant had not, "with respect to his other child, Darwin, caused an effect in [California]"—since it was appellee Horn who had arranged for Darwin to fly to California in January 1976—the court concluded that it was "fair and reasonable for defendant to be subject to personal jurisdiction for the support of both children, where he has committed acts with respect to one child which confers [sic] personal jurisdiction and has consented to the permanent residence of the other child in California." Id., at 525, 138 Cal.Rptr., at 591, 564 P.2d, at 358-359.
8
In the view of the two dissenting justices, permitting a minor child to move to California could not be regarded as a purposeful act by which appellant had invoked the benefits and protection of state law. Since appellant had been in the State of California on only two brief occasions many years before on military stopovers, and lacked any other contact with the State, the dissenting opinion argued that appellant could not reasonably be subjected to the in personam jurisdiction of the California state courts. Id., at 526-529, 138 Cal.Rptr., at 592-593, 564 P.2d, at 359-360.
9
On Ezra Kulko's appeal to this Court, probable jurisdiction was postponed. 434 U.S. 983, 98 S.Ct. 607, 54 L.Ed.2d 476 (1977). We have concluded that jurisdiction by appeal does not lie,4 but, treating the papers as a petition for a writ of certiorari, we hereby grant the petition and reverse the judgment below.5
II
10
The Due Process Clause of the Fourteenth Amendment operates as a limitation on the jurisdiction of state courts to enter judgments affecting rights or interests of nonresident defendants. See Shaffer v. Heitner, 433 U.S. 186, 198-200, 97 S.Ct. 2569, 2577, 53 L.Ed.2d 683 (1977). It has long been the rule that a valid judgment imposing a personal obligation or duty in favor of the plaintiff may be entered only by a court having jurisdiction over the person of the defendant. Pennoyer v. Neff, 95 U.S. 714, 732-733, 24 L.Ed. 565, 572 (1878); International Shoe Co. v. Washington, 326 U.S., at 316, 66 S.Ct., at 158. The existence of personal jurisdiction, in turn, depends upon the presence of reasonable notice to the defendant that an action has been brought. Mullane v. Central Hanover Trust Co., 339 U.S. 306, 313-314, 70 S.Ct. 652, 656-657, 94 L.Ed. 865 (1950), and a sufficient connection between the defendant and the forum State to make it fair to require defense of the action in the forum. Milliken v. Meyer, 311 U.S. 457, 463-464, 61 S.Ct. 339, 342-343, 85 L.Ed. 278 (1940). In this case, appellant does not dispute the adequacy of the notice that he received, but contends that his connection with the State of California is too attenuated, under the standards implicit in the Due Process Clause of the Constitution, to justify imposing upon him the burden and inconvenience of defense in California.
11
The parties are in agreement that the constitutional standard for determining whether the State may enter a binding judgment against appellant here is that set forth in this Court's opinion in International Shoe Co. v. Washington, supra: that a defendant "have certain minimum contacts with [the forum State] such that the maintenance of the suit does not offend 'traditional notions of fair play and substantial justice.' " 326 U.S., at 316, 66 S.Ct., at 158, quoting Milliken v. Meyer, supra, 311 U.S., at 463, 61 S.Ct., at 342. While the interests of the forum State and of the plaintiff in proceeding with the cause in the plaintiff's forum of choice are, of course, to be considered, see McGee v. International Life Insurance Co., 355 U.S. 220, 223, 78 S.Ct. 199, 201, 2 L.Ed.2d 223 (1957), an essential criterion in all cases is whether the "quality and nature" of the defendant's activity is such that it is "reasonable" and "fair" to require him to conduct his defense in that State. International Shoe Co. v. Washington, supra, 326 U.S., at 316-317, 319, 66 S.Ct., at 158, 159. Accord, Shaffer v. Heitner, supra, 433 U.S., at 207-212, 97 S.Ct., at 2581-2584; Perkins v. Benguet Mining Co., 342 U.S. 437, 445, 72 S.Ct. 413, 418, 96 L.Ed. 485 (1952).
12
Like any standard that requires a determination of "reasonableness," the "minimum contacts" test of International Shoe is not susceptible of mechanical application; rather, the facts of each case must be weighed to determine whether the requisite "affiliating circumstances" are present. Hanson v. Denckla, 357 U.S. 235, 246, 78 S.Ct. 1228, 1235, 2 L.Ed.2d 1283 (1958). We recognize that this determination is one in which few answers will be written "in black and white. The greys are dominant and even among them the shades are innumerable." Estin v. Estin, 334 U.S. 541, 545, 68 S.Ct. 1213, 1216, 92 L.Ed. 1561 (19 8). But we believe that the California Supreme Court's application of the minimum-contacts test in this case represents an unwarranted extension of International Shoe and would, if sustained, sanction a result that is neither fair, just, nor reasonable.
A.
13
In reaching its result, the California Supreme Court did not rely on appellant's glancing presence in the State some 13 years before the events that led to this controversy, nor could it have. Appellant has been in California on only two occasions, once in 1959 for a three-day military stopover on his way to Korea, see supra, at 86-87, and again in 1960 for a 24-hour stopover on his return from Korean service. To hold such temporary visits to a State a basis for the assertion of in personam jurisdiction over unrelated actions arising in the future would make a mockery of the limitations on state jurisdiction imposed by the Fourteenth Amendment. Nor did the California court rely on the fact that appellant was actually married in California on one of his two brief visits. We agree that where two New York domiciliaries, for reasons of convenience, marry in the State of California and thereafter spend their entire married life in New York, the fact of their California marriage by itself cannot support a California court's exercise of jurisdiction over a spouse who remains a New York resident in an action relating to child support.
14
Finally, in holding that personal jurisdiction existed, the court below carefully disclaimed reliance on the fact that appellant had agreed at the time of separation to allow his children to live with their mother three months a year and that he had sent them to California each year pursuant to this agreement. As was noted below, 19 Cal.3d, at 523-524, 138 Cal.Rptr., at 590, 564 P.2d, at 357, to find personal jurisdiction in a State on this basis, merely because the mother was residing there, would discourage parents from entering into reasonable visitation agreements. Moreover, it could arbitrarily subject one parent to suit in any State of the Union where the other parent chose to spend time while having custody of their offspring pursuant to a separation agreement.6 As we have emphasized:
15
"The unilateral activity of those who claim some relationship with a nonresident defendant cannot satisfy the requirement of contact with the forum State. . . . [I]t is essential in each case that there be some act by which the defendant purposefully avails [him]self of the privilege of conducting activities within the forum State . . .." Hanson v. Denckla, supra, 357 U.S., at 253, 78 S.Ct., at 1240.
16
The "purposeful act" that the California Supreme Court believed did warrant the exercise of personal jurisdiction over appellant in California was his "actively and fully consent[ing] to Ilsa living in California for the SCHOOL YEAR . . . AND . . . SEN[DIng] her to california for that purpose." 19 Cal.3d, at 524, 138 Cal.Rptr., at 591, 564 P.2d, at 358. We cannot accept the proposition that appellant's acquiescence in Ilsa's desire to live with her mother conferred jurisdiction over appellant in the California courts in this action. A father who agrees, in the interests of family harmony and his children's preferences, to allow them to spend more time in California than was required under a separation agreement can hardly be said to have "purposefully availed himself" of the "benefits and protections" of California's laws. See Shaffer v. Heitner, 433 U.S., at 216, 97 S.Ct., at 586.7
17
Nor can we agree with the assertion of the court below that the exercise of in personam jurisdiction here was warranted by the financial benefit appellant derived from his daughter's presence in California for nine months of the year. 19 Cal.3d at 524-525, 138 Cal.Rptr., at 590-591, 564 P.2d, at 358. This argument rests on the premise that, while appellant's liability for support payments remained unchanged, his yearly expenses for supporting the child in New York decreased. But this circumstance, even if true, does not support California's assertion of jurisdiction here. Any diminution in appellant's household costs resulted, not from the child's presence in California, but rather from her absence from appellant's home. Moreover, an action by appellee Horn to increase support payments could now be brought, and could have been brought when Ilsa first moved to California, in the State of New York;8 a New York court would clearly have personal jurisdiction over appellant and, if a judgment were entered by a New York court increasing appellant's child-support obligations, it could properly be enforced against him in both New York and California.9 Any ultimate financial advantage to appellant thus results not from the child's presence in California, but from appellee's failure earlier to seek an increase in payments under the separation agreement.10 The argument below to the contrary, in our view, confuses the question of appellant's liability with that of the proper forum in which to determine that liability.
B
18
In light of our conclusion that appellant did not purposefully derive benefit from any activities relating to the State of California, it is apparent that the California Supreme Court's reliance on appellant's having caused an "effect" in California was misplaced. See supra., at 89. This "effects" test is derived from the American Law Institute's Restatement (Second) of Conflict of Laws § 37 (1971), which provides:
19
"A state has power to e ercise judicial jurisdiction over an individual who causes effects in the state by an act done elsewhere with respect to any cause of action arising from these effects unless the nature of the effects and of the individual's relationship to the state make the exercise of such jurisdiction unreasonable."11
20
While this provision is not binding on this Court, it does not in any event support the decision below. As is apparent from the examples accompanying § 37 in the Restatement, this section was intended to reach wrongful activity outside of the State causing injury within the State, see, e. g., Comment a, p. 157 (shooting bullet from one State into another), or commercial activity affecting state residents, ibid. Even in such situations, moreover, the Restatement recognizes that there might be circumstances that would render "unreasonable" the assertion of jurisdiction over the nonresident defendant.
21
The circumstances in this case clearly render "unreasonable" California's assertion of personal jurisdiction. There is no claim that appellant has visited physical injury on either property or persons within the State of California. Cf. Hess v. Pawloski, 274 U.S. 352, 47 S.Ct. 632, 71 L.Ed. 1091 (1927). The cause of action herein asserted arises, not from the defendant's commercial transactions in interstate commerce, but rather from his personal, domestic relations. It thus cannot be said that appellant has sought a commercial benefit from solicitation of business from a resident of California that could reasonably render him liable to suit in state court; appellant's activities cannot fairly be analogized to an insurer's sending an insurance contract and premium notices into the State to an insured resident of the State. Cf. McGee v. International Life Insurance Co., 355 U.S. 220, 78 S.Ct. 199, 2 L.Ed.2d 223 (1957). Furthermore, the controversy between the parties arises from a separation that occurred in the State of New York; appellee Horn seeks modification of a contract that was negotiated in New York and that she flew to New York to sign. As in Hanson v. Denckla, 357 U.S., at 252, 78 S.Ct., at 1239, the instant action involves an agreement that was entered into with virtually no connection with the forum State. See also n. 6, supra.
22
Finally, basic considerations of fairness point decisively in favor of appellant's State of domicile as the proper forum for adjudication of this case, whatever the merits of appellee's underlying claim. It is appellant who has remained in the State of the marital domicile, whereas it is appellee who has moved across the continent. Cf. May v. Anderson, 345 U.S. 528, 534-535, n. 8, 73 S.Ct. 840, 843-844, 97 L.Ed. 1221 (1953). Appellant has at all times resided in New York State, and, until the separation and appellee's move to California, his entire family resided there as well. As noted above, appellant did no more than acquiesce in the stated preference of one of his children to live with her mother in California. This single act is surely not one that a reasonable parent would expect to result in the substantial financial burden and personal strain of litigating a child-support suit in a forum 3,000 miles away, and we therefore see no basis on which it can be said that appellant could reasonably have anticipated being "haled before a [California] court," Shaffer v. Heitner, 433 U.S., at 216, 97 S.Ct., at 2586.12 To make jurisdiction in a case such as this turn on whether appellant bought his daughter her ticket or instead unsuccessfully sought to prevent her departure would impose an unreasonable burden on family relations, and one wholly unjustified by the "quality and nature" of appellant's activities in or relating to the State of California. International Shoe Co. v. Washington, 326 U.S., at 319, 66 S.Ct., at 159.
III
23
In seeking to justify the burden that would be imposed on appellant were the exercise of in personam jurisdiction in California sustained, appellee argues that California has substantial interests in protecting the welfare of its minor residents and in promoting to the fullest extent possible a healthy and supportive family environment in which the children of the State are to be raised. These interests are unquestionably important. But while the presence of the children and one parent in California arguably might favor application of California law in a lawsuit in New York, the fact that California may be the " 'center of gravity' " for choice-of-law purposes does not mean that California has personal jurisdiction over the defendant. Hanson v. Denckla, supra, 357 U.S., at 254, 78 S.Ct., at 1240. And California has not attempted to assert any particularized interest in trying such cases in its courts by, e. g., enacting a special jurisdictional statute. Cf. McGee v. International Life Ins. Co., supra, 355 U.S., at 221, 224, 78 S.Ct., at 200-201.
24
California's legitimate interest in ensuring the support of children resident in California without unduly disrupting the children's lives, moreover, is already being served by the State's participation in the Revised Uniform Reciprocal Enforcement of Support Act of 1968. This statute provides a mechanism for communication between court systems in different States, in order to facilitate the procurement and enforcement of child-support decrees where the dependent children reside in a State that cannot obtain personal jurisdiction over the defendant. California's version of the Act essentially permits a California resident claiming support from a nonresident to file a petition in California and have its merits adjudicated in the State of the alleged obligor's residence, without either party's having to leave his or her own State. Cal.Civ.Proc. Code Ann. § 1650 et seq. (West 1972 and Supp. 1978).13 New York State is a signatory to a similar Act.14 Thus, not only may plaintiff-appellee here vindicate her claimed right to additional child support from her former husband in a New York court, seesupra, at 95, but also the Uniform Acts will facilitate both her prosecution of a claim for additional support and collection of any support payments found to be owed by appellant.15
25
It cannot be disputed that California has substantial interests in protecting resident children and in facilitating child-support actions on behalf of those children. But these interests simply do not make California a "fair forum," Shaffer v. Heitner, supra, 433 U.S., at 215, 97 S.Ct., at 2586, in which to require appellant, who derives no personal or commercial benefit from his child's presence in California and who lacks any other relevant contact with the State, either to defend a child-support suit or to suffer liability by default.
IV
26
We therefore believe that the state courts in the instant case failed to heed our admonition that "the flexible standard of International Shoe " does not "heral[d] the eventual demise of all restrictions on the personal jurisdiction of state courts." Hanson v. Denckla, 357 U.S., at 251, 78 S.Ct., at 1238. In McGee v. International Life Ins. Co., we commented on the extension of in personam jurisdiction under evolving standards of due process, explaining that this trend was in large part "attributable to the . . . increasing nationalization of commerce . . . [accompanied by] modern transportation and communication [that] have made it much less burdensome for a party sued to defend himself in a State where he engages in economic activity." 355 U.S., at 222-223, 78 S.Ct., at 201. But the mere act of sending a child to California to live with her mother is not a commercial act and connotes no intent to obtain or expectancy of receiving a corresponding benefit in the State that would make fair the assertion of that State's judicial jurisdiction.
27
Accordingly, we conclude that the appellant's motion to quash service, on the ground of lack of personal jurisdiction, was erroneously denied by the California courts. The judgment of the California Supreme Court is, therefore,
28
Reversed.
29
Mr. Justice BRENNAN, with whom Mr. Justice WHITE and Mr. Justice POWELL join, dissenting.
30
The Court properly treats this case as presenting a single narrow question. That question is whether the California Supreme Court correctly "weighed" "the facts," ante, at 92, of this particular case in applying the settled "constitutional standard," ibid., that before state courts may exercise in personam jurisdiction over a nonresident, nondomiciliary parent of minor children domiciled in the State, it must appear that the nonresident has "certain minimum contacts [with the forum State] such that the maintenance of the suit does not offend 'traditional notions of fair play and substantial justice.' " International Shoe Co. v. Washington, 326 U.S. 310, 316, 66 S.Ct. 154, 158, 90 L.Ed. 95 (1945). The Court recognizes that "this determination is one in which few answers will be written 'in black and white,' " ante, at 92. I cannot say that the Court's determination against state-court in personam jurisdiction is implausible, but, though the issue is close, my independent weighing of the facts leads me to conclude, in agreement with the analysis and determination of the California Supreme Court, that appellant's connection with the State of California was not too attenuated, under the standards of reasonableness and fairness implicit in the Due Process Clause, to require him to conduct his defense in the California courts. I therefore dissent.
1
While the Jurisdictional Statement, at 5, asserts that "the parties" flew to Haiti, appellant's affidavit submitted in the Superior Court stated that Sharon Kulko flew to Haiti with a power of attorney signed by appellant. App. 28. The Haitian decree states that Sharon Kulko appeared "in person" and that appellant filed a "Power of Attorney and submission to jurisdiction." Id., at 14.
2
Appellee Horn's complaint also sought an order restraining appellant from removing his children from the State. The trial court immediately granted appellee temporary custody of the children and restrained both her and appellant from removing the children from the State of California. See 19 Cal.3d 514, 520, 138 Cal.Rptr. 586, 588, 564 P.2d 353, 355 (1977). The record does not reflect whether appellant is still enjoined from removing his children from the State.
3
Section 410.10, Cal.Civ.Proc.Code Ann. (West 1973), provides:
"A court of this state may exercise jurisdiction on any basis not inconsistent with the Constitution of this state or of the United States."
The opinion below does not appear to distinguish between the requirements of the Federal and State Constitutions. See 19 Cal.3d, at 521-522, 138 Cal.Rptr., at 588-589, 564 P.2d, at 356.
4
As was true in both Hanson v. Denckla, 357 U.S. 235, 78 S.Ct. 1228, 2 L.Ed.2d 1283 (1958), and May v. Anderson, 345 U.S. 528, 73 S.Ct. 840, 97 L.Ed. 1221 (1953), this case was improperly brought to this Court as an appeal, since no state statute was "drawn in question . . . on the ground of its being repugnant to the Constitution, treaties or laws of the United States," 28 U.S.C. § 1257(2). The jurisdictional statute construed by the California Supreme Court provides that the State's jurisdiction is as broad as the Constitution permits. See n. 3, supra. Appellant did not argue below that this statute was unconstitutional, but instead argued that the Due Process Clause of the Fourteenth Amendment precluded the exercise of in personam jurisdiction over him. The opinion below does not purport to determine the constitutionality of the California jurisdictional statute. Rather, the question decided was whether the Constitution itself would permit the assertion of jurisdiction.
Appellant requested that, in the event that appellate jurisdiction under 28 U.S.C. § 1257(2) was found lacking, the papers be acted upon as a petition for certiorari pursuant to 28 U.S.C. § 2103. We follow the practice of both Hanson and May in deeming the papers to be a petition for a writ of certiorari. As in Hanson and May, moreover, we shall continue to refer to the parties herein as appellant and appellee to minimize confusion. See 357 U.S., at 244, 78 S.Ct., at 1234; 345 U.S., at 530, 73 S.Ct., at 841.
5
After the California Supreme Court's decision, appellant sought a continuance of trial-court proceedings pending this Court's disposition of his appeal. Appellant's request for a continuance was denied by the trial court, and subsequently that court determined that appellant was in arrears on his child-support payments. App. to Brief for Appellant ii-iii. In light of the change in custody arrangements, the court also ordered that appellant's child-support obligations be increased substantially. Ibid.
Appellee Horn argues that appellant's request for a continuance amounted to a general appearance and a waiver of jurisdictional objections, and that accordingly there is no longer a live controversy as to the jurisdictional issue before us. Appellee's argument concerning the jurisdictional effect of a motion for a continuance, however, does not find support in the California statutes, rules, or cases that she cites. Moreover, the state trial court expressly determined, subsequent to the request for a continuance, that appellant had "made a special appearance only to contest the jurisdiction of the Court." Id., at i. Under these circumstances, appellant's challenge to the state court's in personam jurisdiction is not moot.
6
Although the separation agreement stated that appellee Horn resided in California and provided that child-support payments would be mailed to her California address, it also specifically contemplated that appellee might move to a different State. The agreement directed appellant to mail the support payments to appellee's San Francisco address or "any other address which the Wife may designate from time to time in writing." App. 10.
7
The court below stated that the presence in California of appellant's daughter gave appellant the benefit of California's "police and fire protection, its school system, its hospital services, its recreational facilities, its libraries and museums . . . ." 19 Cal.3d, at 522, 138 Cal.Rptr., at 589, 564 P.2d, at 356. But, in the circumstances presented here, these services provided by the State were essentially benefits to the child, not the father, and in any event were not benefits that appellant purposefully sought for himself.
8
Under the separation agreement, appellant is bound to "indemnify and hold [his] Wife harmless from any and all attorney fees, costs and expenses which she may incur by reason of the default of [appellant] in the performance of any of the obligations required to be performed by him pursuant to the terms and conditions of this agreement." App. 11. To the extent that appellee Horn seeks arrearages, see n. 5, supra, her litigation expenses, presumably including any additional costs incurred by her as a result of having to prosecute the action in New York, would thus be borne by appellant.
9
A final judgment entered by a New York court having jurisdiction over the defendant's person and over the subject matter of the lawsuit would be entitled to full faith and credit in any State. See New York ex rel. Halvey v. Halvey, 330 U.S. 610, 614, 67 S.Ct. 903, 905, 91 L.Ed. 1133 (1947). See also Sosna v. Iowa, 419 U.S. 393, 407, 95 S.Ct. 553, 561, 42 L.Ed.2d 532 (1975).
10
It may well be that, as a matter of state law, appellee Horn could still obtain through New York proceedings additional payments from appellant for Ilsa's support from January 1974, when a de facto modification of the custody provisions of the separation agreement took place, until the present. See H. Clark, Domestic Relations § 15.2, p. 500 (1968); cf. In re Santa Clara County v. Hughes, 43 Misc.2d 559, 251 N.Y.S.2d 579 (1964).
11
Section 37 of the Restatement has effectively been incorporated into California law. See Judicial Council Comment (9) to Cal.Civ.Proc. Code Ann. § 410.10 (West 1973).
12
See also Developments in the Law—State-Court Jurisdiction, 73 Harv.L.Rev. 909, 911 (1960).
13
In addition to California, 24 other States are signatories to this Act. 9 U.L.A. 473 (Supp.1978). Under the Act, an "obligee" may file a petition in a court of his or her State (the "initiating court") to obtain support. 9 U.L.A. §§ 11, 14 (1973). If the court "finds that the [petition] sets forth facts from which it may be determined that the obligor owes a duty of support and that a court of the responding state may obtain jurisdiction of the obligor or his property," it may send a copy of the petition to the "responding state." § 14. This has the effect of requesting the responding State "to obtain jurisdiction over the obligor." § 18(b). If jurisdiction is obtained, then a hearing is set in a court in the responding State at which the obligor may, if he chooses, contest the claim. The claim may be litigated in that court, with deposition testimony submitted through the initiating court by the initiating spouse or other party. § 20. If the responding state court finds that the obligor owes a duty of support pursuant to the laws of the State where he or she was present during the time when support was sought, § 7, judgment for the petitioner is entered. § 24. If the money is collected from the spouse in the responding State, it is then sent to the court in the initiating State for distribution to the initiating party. § 28.
14
While not a signatory to the Uniform Reciprocal Enforcement of Support Act of 1968, New York is a party to he Uniform Reciprocal Enforcement of Support Act of 1950, as amended. N.Y. Dom. Rel. Law § 30 et seq. (McKinney 1977) (Uniform Support of Dependents Law). By 1957 this Act, or its substantial equivalent, had been enacted in all States, organized Territories, and the District of Columbia. 9 U.L.A. 885 (1973). The "two-state" procedure in the 1950 Act for obtaining and enforcing support obligations owed by a spouse in one State to a spouse in another is similar to that provided in the 1968 Act. See n. 13, supra. See generally Note, 48 Cornell L.Q. 541 (1963).
In Landes v. Landes, 1 N.Y.2d 358, 153 N.Y.S.2d 14, 135 N.E.2d 562, appeal dismissed, 352 U.S. 948, 77 S.Ct. 325, 1 L.Ed.2d 241 (1956), the court upheld a support decree entered against a divorced husband living in New York, on a petition filed by his former wife in California pursuant to the Uniform Act. No prior support agreement or decree existed between the parties; the California spouse sought support from the New York husband for the couple's minor child, who was residing with her mother in California. The New York Court of Appeals concluded that the procedures followed—filing of a petition in California, followed by its certification to New York's Family Court, the obtaining of jurisdiction over the husband, a hearing in New York on the merits of the petition, and entry of an award—were proper under the laws of both States and were constitutional. The constitutionality of these procedures has also been upheld in other jurisdictions. See, e. g., Watson v. Dreadin, 309 A.2d 493 (D.C.App.1973), cert. denied, 415 U.S. 959, 94 S.Ct. 1488, 39 L.Ed.2d 574 (1974); State ex rel. Terry v. Terry, 80 N.M. 185, 453 P.2d 206 (1969); Harmon v. Harmon, 184 Cal.App.2d 245, 7 Cal.Rptr. 279 (1960), appeal dismissed and cert. denied, 366 U.S. 270, 81 S.Ct. 1100, 6 L.Ed.2d 382 (1961).
15
Thus, it cannot here be concluded, as it was in McGee v. International Life Insurance Co., 355 U.S. 220, 223-224, 78 S.Ct. 199, 201, 2 L.Ed.2d 223 (1957), with respect to actions on insurance contracts, that resident plaintiffs would be at a "severe disadvantage" if in personam jurisdiction over out-of-state defendants were sometimes unavailable.
| 34
|
436 U.S. 128
98 S.Ct. 1717
56 L.Ed.2d 168
Frank R. SCOTT, etc. and Bernis L. Thurmon, etc., Petitioners,v.UNITED STATES.
No. 76-6767.
Argued March 1, 1978.
Decided May 15, 1978.
Rehearing Denied June 26, 1978.
See 438 U.S. 908, 98 S.Ct. 3127.
Syllabus
Title III of the Omnibus Crime Control and Safe Streets Act of 1968 requires that wiretapping or electronic surveillance "be conducted in such a way as to minimize" the interception of communications not otherwise subject to interception under that Title. 18 U.S.C. § 2518(5) (1976 ed.). Pursuant to a court wiretap authorization order requiring such minimization, Government agents intercepted for a one-month period virtually all conversations over a particular telephone suspected of being used in furtherance of a conspiracy to import and distribute narcotics. Forty percent of the calls were clearly narcotics related, and the remaining calls were for the most part very short, such as wrong-number calls, and calls to persons unavailable to come to the phone, or were ambiguous in nature, and in a few instances were between the person to whom the telephone was registered and her mother. After the interceptions were terminated, petitioners, among others, were indicted for various narcotics offenses. The District Court, on petitioners' pretrial motion, ordered suppression of all the intercepted conversations and derivative evidence, on the ground that the agents had failed to comply with the wiretap order's minimization requirement, primarily because only 40% of the conversations were shown to be narcotics related. The Court of Appeals reversed and remanded, stating that the District Court should not have based its determination upon a general comparison of the number of narcotics-related calls with the total number of calls intercepted, but rather should have engaged in a particularized assessment of the reasonableness of the agents' attempts to minimize in light of the purpose of the wiretap and information available to the agents at the time of interception. On remand, the District Court again ordered suppression, relying largely on the fact that the agents were aware of the minimization requirement "but made no attempt to comply therewith." The Court of Appeals again reversed, holding that the District Court had yet to apply the correct standard, that the decision on the suppression motion ultimately had to be based on the reasonableness of the actual interceptions and not on whether the agents subjectively intended to minimize their interceptions, and that suppression in this case was not appropriate. Petitioners were eventually convicted, and the Court of Appeals affirmed. Held:
1. The proper approach for evaluating compliance with the minimization requirement, like evaluation of all alleged violations of the Fourth Amendment, is objectively to assess the agent's or officer's actions in light of the facts and circumstances confronting him at the time without regard to his underlying intent or motive. Pp. 135-138.
2. Even if the agents fail to make good-faith efforts at minimization, that is not itself a violation of the statute requiring suppression, since the use of the word "conducted" in § 2518(5) makes it clear that the focus was to be on the agents' actions, not their motives, and since the legislative history shows that the statute was not intended to extend the scope of suppression beyond search-and-seizure law under the Fourth Amendment. Pp. 138-139.
3. The Court of Appeals did not err in rejecting petitioners' minimization claim, but properly analyzed the reasonableness of the wiretap. Pp. 139-143.
(a) Blind reliance on the percentage of nonpertinent calls intercepted is not a sure guide to the correct answer. While such percentages may provide assistance, there are cases, like this one, where the percentage of nonpertinent calls is relatively high and yet their interception was still reasonable. P. 140.
(b) It is also important to consider the circumstances of the wiretap, such as whether more extensive surveillance may be justified because of a suspected widespread conspiracy, or the type of use to which the wiretapped telephone is normally put. P. 140.
(c) Other factors, such as the exact point during the authorized period at which the interception was made, may be significant in a particular case. P. 141.
(d) As to most of the calls here that were not narcotics related, such calls did not give the agents an opportunity to develop a category of innocent calls that should not have been intercepted, and hence their interception cannot be viewed as a violation of the minimization requirement. As to the calls between the telephone registrant and her mother, it cannot be said that even though they turned out not to be relevant to the investigation, the Court of Appeals was incorrect in concluding that the agents did not act unreasonably at the time they made these interceptions. Pp. 142-143.
179 U.S.App.D.C. 281, 551 F.2d 467, affirmed.
John A. Shorter, Jr., Washington, D. C., for petitioners.
Richard A. Allen, Cambridge, Mass., for respondent.
Mr. Justice REHNQUIST delivered the opinion of the Court.
1
In 1968, Congress enacted Title III of the Omnibus Crime Control and Safe Streets Act of 1968, which deals with wiretapping and other forms of electronic surveillance. 18 U.S.C. §§ 2510-2520 (1976 ed.). In this Act Congress, after this Court's decisions in Berger v. New York, 388 U.S. 41, 87 S.Ct. 1873, 18 L.Ed.2d 1040 (1967), and Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967), set out to provide law enforcement officials with some of the tools thought necessary to combat crime without unnecessarily infringing upon the right of individual privacy. See generally S.Rep. No. 1097, 90th Cong., 2d Sess. (1968), U.S.Code Cong. & Admin.News 1968, p. 2112. We have had occasion in the past, the most recent being just last Term, to consider exactly how the statute effectuates this balance.1 This case requires us to construe the statutory requirement that wiretapping or electronic surveillance "be conducted in such a way as to minimize the interception of communications not otherwise subject to interception under this chapter . . . ." 18 U.S.C. § 2518(5) (1976 ed.).
2
Pursuant to judicial authorization which required such minimization, Government agents intercepted all the phone conversations over a particular phone for a period of one month. The District Court for the District of Columbia suppressed all intercepted conversations and evidence derived therefrom in essence because the "admitted knowing and purposeful failure by the monitoring agents to comply with the minimization order was unreasonable . . . even if every intercepted call were narcotic-related." App. 39. The Court of Appeals for the District of Columbia Circuit reversed, concluding that an assessment of the reasonableness of the efforts at minimization first requires an evaluation of the reasonableness of the actual interceptions in light of the purpose of the wiretap and the totality of the circumstances before any inquiry is made into the subjective intent of the agents conducting the surveillance. 170 U.S.App.D.C. 158, 516 F.2d 751 (1975). We granted certiorari to consider this important question, 434 U.S. 888, 98 S.Ct. 261, 54 L.Ed.2d 173 (1977), and, finding ourselves in asic agreement with the Court of Appeals, affirm.
3
* In January 1970, Government officials applied, pursuant to Title III, for authorization to wiretap a telephone registered to Geneva Jenkins.2 The supporting affidavits alleged that there was probable cause to believe nine individuals, all named, were participating in a conspiracy to import and distribute narcotics in the Washington, D. C., area and that Geneva Jenkins' telephone had been used in furtherance of the conspiracy, particularly by petitioner Thurmon, who was then living with Jenkins. The District Court granted the application on January 24, 1970, authorizing agents to "[i]ntercept the wire communications of Alphonso H. Lee, Bernis Lee Thurmon, and other persons as may make use of the facilities hereinbefore described." App. 80. The order also required the agents to conduct the wiretap in "such a way as to minimize the interception of communications that are [not] otherwise subject to interception" under the Act3 and to report to the court every five days "the progress of the interception and the nature of the communication intercepted." Ibid. Interception began that same day and continued, pursuant to a judicially authorized extension, until February 24, 1970, with the agents making the periodic reports to the judge as required. Upon cessation of the interceptions, search and arrest warrants were executed which led to the arrest of 22 persons and the indictment of 14.
4
Before trial the defendants, including petitioners Scott and Thurmon, moved to suppress all the intercepted conversations on a variety of grounds. After comprehensive discovery and an extensive series of hearings, the District Court held that the agents had failed to comply with the minimization requirement contained in the wiretap order and ordered suppression of the intercepted conversations and all derivative evidence. The court relied in large part on the fact that virtually all the conversations were intercepted while only 40% of them were shown to be narcotics related. This, the court reasoned, "strongly indicate[d] the indiscriminate use of wire surveillance that was proscribed by Katz4 and Berger."5 331 F.Supp. 233, 247 (D.C.1971).
5
The Court of Appeals for the District of Columbia Circuit reversed and remanded, stating that the District Court should not have based its determination upon a general comparison of the number of narcotics-related calls with the total number of calls intercepted, but rather should have engaged in a particularized assessment of the reasonableness of the agents' attempts to minimize in light of the purpose of the wiretap and the information available to the agents at the time of interception. 164 U.S.App.D.C. 125, 129, 504 F.2d 194, 198 (1974).6
6
Upon remand, the District Court again ordered suppression, this time relying largely on the fact that the agents were aware of the minimization requirement, "but made no attempt to comply therewith." App. 37, 38.7 "The admitted knowing and purposeful failure by the monitoring agents to comply with the minimization order was unreasonable . . . even if every intercepted call were narcotic-related." Id., at 39.
7
The Court of Appeals again reversed, holding that the District Court had yet to apply the correct standard. 170 U.S.App.D.C. 158, 516 F.2d 751 (1975). The court recognized that the "presence or absence of a good faith attempt to minimize on the part of the agents is undoubtedly one factor to be considered in assessing whether the minimization requirement has been satisfied," but went on to hold that "the decision on the suppression motion must ultimately be based on the reasonableness of the actual interceptions and not on whether the agents subjectively intended to minimize their interceptions." Id., at 163, 516 F.2d, at 756. Then, because of the extended period of time which had elapsed since the commission of the offense in question, that court itself examined the intercepted conversations and held that suppression was not appropriate in this case because the court could not conclude that "some conversation was intercepted which clearly would not have been intercepted had reasonable attempts at minimization been made." Id., at 164, 516 F.2d, at 757.8
8
On the remand from the Court of Appeals, following a nonjury trial on stipulated evidence which consisted primarily of petitioners' intercepted conversations, Scott was found guilty of selling and purchasing narcotics not in the original stamped package, see 26 U.S.C. § 4704(a) (1964 ed.), and Thurmon of conspiracy to sell narcotics, see 26 U.S.C. §§ 7237(b) and 4705(a) (1964 ed.).9 The Court of Appeals affirmed the convictions, 179 U.S.App.D.C. 281, 551 F.2d 467 (1977), and we granted certiorari. 434 U.S. 888, 98 S.Ct. 261, 54 L.Ed.2d 173 (1977).
II
9
Petitioners' principal contention is that the failure to make good-faith efforts to comply with the minimization r quirement is itself a violation of § 2518(5). They urge that it is only after an assessment is made of the agents' good-faith efforts, and presumably a determination that the agents did make such efforts, that one turns to the question of whether those efforts were reasonable under the circumstances. See Reply Brief for Petitioner 4-5. Thus, argue petitioners, Agent Cooper's testimony, which is basically a concession that the Government made no efforts which resulted in the noninterception of any call, is dispositive of the matter. The so-called "call analysis," which was introduced by the Government to suggest the reasonableness of intercepting most of the calls, cannot lead to a contrary conclusion because, having been prepared after the fact by a Government attorney and using terminology and categories which were not indicative of the agents' thinking at the time of the interceptions, it does not reflect the perceptions and mental state of the agents who actually conducted the wiretap.
10
The Government responds that petitioners' argument fails to properly distinguish between what is necessary to establish a statutory or constitutional violation and what is necessary to support a suppression remedy once a violation has been established.10 In view of the deterrent purposes of the exclusionary rule, consideration of official motives may play some part in determining whether application of the exclusionary rule is appropriate after a statutory or constitutional violation has been established. But the existence vel non of such a violation turns on an objective assessment of the officer's actions in light of the facts and circumstances confronting him at the time. Subjective intent alone, the Government contends, does not make otherwise lawful conduct illegal or unconstitutional.11
11
We think the Government's position, which also served as the basis for decision in the Court of Appeals, embodies the proper approach for evaluating compliance with the minimization requirement. Although we have not examined this exact question at great length in any of our prior opinions, almost without exception in evaluating alleged violations of the Fourth Amendment the Court has first undertaken an objective assessment of an officer's actions in light of the facts and circumstances then known to him. The language of the Amendment itself proscribes only "unreasonable" searches and seizures. In Terry v. Ohio, 392 U.S. 1, 21-22, 88 S.Ct. 1868, 1880, 20 L.Ed.2d 889 (1968), the Court emphasized the objective aspect of the term "reasonable."
12
"And in justifying the particular intrusion the police officer must be able to point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion. The scheme of the Fourth Amendment becomes meaningful only when it is assured that at some point the conduct of those charged with enforcing the laws can be subjected to the more detached, neutral scrutiny of a judge who must evaluate the reasonableness of a particular search or seizure in light of the particular circumstances. And in making that assessment it is imperative that the facts be judged against an objective standard; would the facts available to the officer at the moment of the seizure or the search 'warrant a man of reasonable caution in the belief' that the action taken was appropriate?" (Footnotes omitted.)
13
See also Beck v. Ohio, 379 U.S. 89, 96-97, 85 S.Ct. 223, 228, 13 L.Ed.2d 142 (1964); Henry v. United States, 361 U.S. 98, 102-103, 80 S.Ct. 168, 171, 4 L.Ed.2d 134 (1959).
14
We have since held that the fact that the officer does not have the state of mind which is hypothecated by the reasons which provide the legal justification for the officer's action does not invalidate the action taken as long as the circumstances, viewed objectively, justify that action. In United States v. Robinson, 414 U.S. 218, 94 S.Ct. 467, 38 L.Ed.2d 427 (1973), a suspect was searched incident to a lawful arrest. He challenged the search on the ground that the motivation for the search did not coincide with the legal justification for the search-incident-to-arrest exception. We rejected this argument: "Since it is the fact of custodial arrest which gives rise to the authority to search, it is of no moment that [the officer] did not indicate any subjective fear of the respondent or that he did not himself suspect that respondent was armed." Id., at 236, 94 S.Ct., at 477. The Courts of Appeals which have considered the matter have likewise generally followed these principles, first examining the challenged searches under a standard of objective reasonableness without regard to the underlying intent or motivation of the officers involved.12
15
Petitioners do not appear, however, to rest their argument entirely on Fourth Amendment principles. Rather, they argue in effect that regardless of the search-and-seizure analysis conducted under the Fourth Amendment, the statute regulating wiretaps requires the agents to make good-faith efforts at minimization, and the failure to make such efforts is itself a violation of the statute which requires suppression.
16
This argument fails for more than one reason. In the first place, in the very section in which it directs minimization Congress, by its use of the word "conducted," made it clear that the focus was to be on the agents' actions not their motives. Any lingering doubt is dispelled by the legislative history which, as we have recognized before in another context, declares that § 2515 was not intended "generally to press the scope of the suppression role beyond present search and seizure law." S.Rep. No. 1097, 90th Cong., 2d Sess., 96 (1968), U.S.Code Cong. & Admin.News 1968, p. 2185. See Alderman v. United States, 394 U.S. 165, 175-176, 89 S.Ct. 961, 967, 968, 22 L.Ed.2d 176 (1969).13
III
17
We turn now to the Court of Appeals' analysis of the reasonableness of the agents' conduct in intercepting all of the calls in this particular wiretap. Because of the necessarily ad hoc nature of any determination of reasonableness, there can be no inflexible rule of law which will decide every case. The statute does not forbid the interception of all nonrelevant conversations, but rather instructs the agents to conduct the surveillance in such a manner as to "minimize" the interception of such conversations. Whether the agents have in fact conducted the wiretap in such a manner will depend on the facts and circumstances of each case.
18
We agree with the Court of Appeals that blind reliance on the percentage of nonpertinent calls intercepted is not a sure guide to the correct answer. Such percentages may provide assistance, but there are surely cases, such as the one at bar, where the percentage of nonpertinent calls is relatively high and yet their interception was still reasonable. The reasons for this may be many. Many of the nonpertinent calls may have been very short. Others may have been one-time only calls. Still other calls may have been ambiguous in nature or apparently involved guarded or coded language. In all these circumstances agents can hardly be expected to know that the calls are not pertinent prior to their termination.
19
In determining whether the agents properly minimized, it is also important to consider the circumstances of the wiretap. For example, when the investigation is focusing on what is thought to be a widespread conspiracy more extensive surveillance may be justified in an attempt to determine the precise scope of the enterprise. And it is possible that many more of the conversations will be permissibly interceptible because they will involve one or more of the co-conspirators. The type of use to which the telephone is normally put may also have some bearing on the extent of minimization required. For example, if the agents are permitted to tap a public telephone because one individual is thought to be placing bets over the phone, substantial doubts as to minimization may arise if the agents listen to every call which goes out over that phone regardless of who places the call. On the other hand, if the phone is located in the residence of a person who is thought to be the head of a major drug ring, a contrary conclusion may be indicated.
20
Other factors may also play a significant part in a particular case. For example, it may be important to determine at exactly what point during the authorized period the interception was made. During the early stages of surveillance the agents may be forced to intercept all calls to establish categories of nonpertinent calls which will not be intercepted thereafter. Interception of those same types of calls might be unreasonable later on, however, once the nonpertinent categories have been established and it is clear that this particular conversation is of that type. Other situations may arise where patterns of nonpertinent calls do not appear. In these circumstances it may not be unreasonable to intercept almost every short conversation because the determination of relevancy cannot be made before the call is completed.
21
After consideration of the minimization claim in this case in the light of these observations, we find nothing to persuade us that the Court of Appeals was wrong in its rejection of that claim.14 Forty percent of the calls were clearly narcotics related and the propriety of their interception is, of course, not in dispute. Many of the remaining calls were very short, such as wrong number calls, calls to persons who were not available to come to the phone, and calls to the telephone company to hear the recorded weather message which lasts less than 90 seconds. In a case such as this, involving a wide-ranging conspiracy with a large number of participants, even a seasoned listener would have been hard pressed to determine with any precision the relevancy of many of the calls before they were completed.15 A large number were ambiguous in nature, making characterization virtually impossible until the completion of these calls. And some of the nonpertinent conversations were one-time conversations. Since these calls did not give the agents an opportunity to develop a category of innocent calls which should not have been intercepted, their interception cannot be viewed as a violation of the minimization requirement.
22
We are thus left with the seven calls between Jenkins and her mother. The first four calls were intercepted over a three-day period at the very beginning of the surveillance. They were of relatively short length and at least two of them indicated that the mother may have known of the conspiracy. The next two calls, which occurred about a week later, both contained statements from the mother to the effect that she had something to tell Jenkins regarding the "business" but did not want to do so over the phone. The final call was substantially longer and likewise contained a statement which could have been interpreted as having some bearing on the conspiracy, i. e., that one "Reds," a suspect in the conspiracy, had called to ask for a telephone number. Although none of these conversations turned out to be material to the investigation at hand, we cannot say that the Court of Appeals was incorrect in concluding that the agents did not act unreasonably at the time they made these interceptions. Its judgment is accordingly
23
Affirmed.
24
Mr. Justice BRENNAN, with whom Mr. Justice MARSHALL joins, dissenting.
25
In 1968, Congress departed from the longstanding national policy forbidding surreptitious interception of wire communications,1 by enactment of Title III of the Omnibus Crime Control and Safe Streets Act of 1968, 18 U.S.C. §§ 2510-2520 (1976 ed.). That Act, for the first time authorizing law enforcement personnel to monitor private telephone conversations, provided strict guidelines and limitations on the use of wiretaps as a barrier to Government infringement of individual privacy. One of the protections thought essential by Congress as a bulwark against unconstitutional governmental intrusion on private conversations is the "minimization requirement" of § 2518(5). The Court today eviscerates this congressionally mandated protection of individual privacy, marking the third decision in which the Court has disregarded or diluted congressionally established safeguards2 designed to prevent Government electronic surveillance from becoming the abhorred general warrant which historically had destroyed the cherished expectation of privacy in the home.3
26
The "minimization provision" of § 2518(5) provides, inter alia, that every order authorizing interception of wire communications include a requirement that the interception "shall be conducted in such a way as to minimize the interception of communications not otherwise subject to interception under this chapter . . . ." (Emphasis added.) The District Court's findings of fact, not challenged here or in the Court of Appeals, plainly establish that this requirement was shamelessly violated. The District Court found:
27
"[T]he monitoring agents made no attempt to comply with the minimization order of the Court but listened to and recorded all calls over the [subject] telephone. They showed no regard for the right of privacy and did nothing to avoid unnecessary intrusion." App. 36.
28
The District Court further found that the special agent who conducted the wiretap testified under oath that "he and the agents working under him knew of the minimization requirement but made no attempt to comply therewith." Id., at 37. The District Court found a "knowing and purposeful failure" to comply with the minimization requirements. Id., at 39. These findings, made on remand after re-examination, reiterated the District Court's initial finding that: "[the agents] did not even attempt 'lip service compliance' with the provision of the order and statutory mandate but rather completely disregarded it." 331 F.Supp. 233, 247 (D.C.1971). In the face of this clear finding that the agents monitored every call and, moreover, knowingly failed to conduct the wiretap "in such a way as to minimize the interception of communications" not subject to interception, and despite the fact that 60% of all calls intercepted were not subject to interception, the Court holds that no violation of § 2518(5) occurred. The basis for that conclusion is a post hoc reconstruction offered by the Government of what would have been reasonable assumptions on the part of the agents had they attempted to comply with the statute. Since, on the basis of this reconstruction of reality, it would have been reasonable for the agents to assume that each of the calls dialed and received was likely to be in connection with the criminal enterprise, there was no violation, notwithstanding the fact that the agents intercepted every call with no effort to minimize interception of the noninterceptable calls. That reasoning is thrice flawed.
29
First, and perhaps most significant, it totally disregards the explicit congressional command that the wiretap be conducted so as to minimize interception of communications not subject to interception. Second, it blinks reality by accepting, as a substitute for the good-faith exercise of judgment as to which calls should not be intercepted by the agent most familiar with the investigation, the post hoc conjectures of the Government as to how the agent would have acted had he exercised his judgment. Because it is difficult to know with any degree of certainty whether a given communication is subject to interception prior to its interception, there necessarily must be a margin of error permitted. But we do not enforce the basic premise of the Act that intrusions of privacy must be kept to the minim m by excusing the failure of the agent to make the good-faith effort to minimize which Congress mandated. In the nature of things it is impossible to know how many fewer interceptions would have occurred had a good-faith judgment been exercised, and it is therefore totally unacceptable to permit the failure to exercise the congressionally imposed duty to be excused by the difficulty in predicting what might have occurred had the duty been exercised. Finally, the Court's holding permits Government agents deliberately to flout the duty imposed upon them by Congress. In a linguistic tour ide force the Court converts the mandatory language that the interception "shall be conducted" to a precatory suggestion. Nor can the Court justify its disregard of the statute's language by any demonstration that it is necessary to do so to effectuate Congress' purpose as expressed in the legislative history. On the contrary, had the Court been faithful to the congressional purpose, it would have discovered in § 2518(10)(a) and its legislative history the unambiguous congressional purpose to have enforced the several limitations on interception imposed by the statute. Section 2518(10)(a) requires suppression of evidence intercepted in violation of the statute's limitations on interception, and the legislative history emphasizes Congress' intent that the exclusionary remedy serve as a deterrent against the violation of those limitations by law enforcement personnel. See S.Rep. No. 1097, 90th Cong., 2d Sess., 96 (1968).
30
The Court's attempted obfuscation in Part II, ante, at 1722-1724, of its total disregard of the statutory mandate4 is a transparent failure. None of the cases discussed there deciding the reasonableness under the Fourth Amendment of searches and seizures deals with the discrete problems of wire interceptions or addresses the construction of the minimization requirement of § 2518(5). Congress provided the answer to that problem, and the wording of its command, and not general Fourth Amendment principles, must be the guide to our decision. The Court offers no explanation for its failure to heed the aphorism: "Though we may not end with the words in construing a disputed statute, one certainly begins there." Frankfurter, Some Reflections on the Reading of Statutes, 47 Colum.L.Rev. 527, 535 (1947).5
31
Moreover, today's decision does not take even a sidelong glance at United States v. Kahn, 415 U.S. 143, 94 S.Ct. 977, 39 L.Ed.2d 225 (1974), whose reasoning it undercuts, and which may now require overruling. Answering the question in Kahn of who must be named in an application and order authorizing electronic surveillance, the Court held:
32
"Title III requires the naming of a person in the application or interception order only when the law enforcement authorities have probable cause to believe that that individual is 'committing the offense' for which the wiretap is sought." Id., at 155, 94 S.Ct. at 984.
33
To support that holding against the argument that it would, in effect, approve a general warrant proscribed by Title III, and the Fourth Amendment, see id., at 158-163, 94 S.Ct. at 985-988 (Douglas, J., dissenting), the Court relied on the minimization requirement as an adequate safeguard to prevent § ch unlimited invasions of personal privacy:
34
"[I]n accord with the statute the order required the agents to execute the warrant in such a manner as to minimize the interception of any innocent conversations. . . . Thus, the failure of the order to specify that Mrs. Kahn's conversations might be the subject of interception hardly left the executing agents free to seize at will every communication that came over the wire—and there is no indication that such abuses took place in this case." Id., at 154-155, 94 S.Ct., at 983-984. (Footnotes omitted.)
35
Beyond the inconsistency of today's decision with the reasoning of Kahn, the Court manifests a disconcerting willingness to unravel individual threads of statutory protection without regard to their interdependence and to whether the cumulative effect is to rend the fabric of Title III's "congressionally designed bulwark against conduct of authorized electronic surveillance in a manner that violates the constitutional guidelines announced in Berger v. New York, 388 U.S. 41, 87 S.Ct. 1873, 18 L.Ed.2d 1040 (1967), and Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967)," Bynum v. United States, 423 U.S. 952, 96 S.Ct. 357, 46 L.Ed.2d 277 (1975) (BRENNAN, J., dissenting from denial of certiorari). This process of myopic, incremental denigration of Title III's safeguards raises the specter that, as judicially "enforced," Title III may be vulnerable to constitutional attack for violation of Fourth Amendment standards, thus defeating the careful effort Congress made to avert that result.
1
See United States v. Donovan, 429 U.S. 413, 97 S.Ct. 658, 50 L.Ed.2d 652 (1977), which involved that part of the Act which requires the Government to identify the person, if known, whose conversations are to be intercepted.
2
The application and subsequent court order identified the subscriber as Geneva Thornton, but that was apparently an alias. 331 F.Supp. 233, 236 (D.C.1971).
3
The word "not" was inadvertently omitted, but the agents apparently understood the intent of the order. Id., at 245 n. 1.
4
Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967).
5
Berger v. New York, 388 U.S. 41, 87 S.Ct. 1873, 18 L.Ed.2d 1040 (1967).
6
The District Court also made a number of other related rulings which were affirmed on appeal. It upheld Title III against a claim that the statute contravened the Fourth Amendment restriction against unreasonable searches and seizures; determined that the application and affidavits were sufficient on their face to establish probable cause; and held that the order complied with the requirements of the statute. Petitioners have not sought review of any of these holdings. The Court of Appeals also held that Scott could introduce evidence based on conversations in which he did not participate to demonstrate that the intercepted conversations to which he was a party were not seized "in conformity with the order of authorization." 8 U.S.C. § 2518(10)(a)(iii) (1976 ed.). See 164 U.S.App.D.C., at 127-128, 504 F.2d, at 196-197.
7
This conclusion was based on the fact that virtually all calls were intercepted and on the testimony of Special Agent Glennon Cooper, the agent in charge of the investigation, who testified that the only steps taken which actually resulted in the nonreception of a conversation were those taken when the agents discovered the wiretap had inadvertently been connected to an improper line. The court laid particular stress on the following exchange:
"BY THE COURT:
* * * * *
"Q. The question I wish to ask you is this, whether at any time during the course of the wiretap—of the intercept, what if any steps were taken by you or any agent under you to minimize the listening?
"A. Well, as I believe I mentioned before, I would have to say that the only effective steps taken by us to curtail the reception of conversations was in that instance where the line was connected to—misconnected from the correct line and connected to an improper line. We discontinued at that time.
"Q. Do I understand from you then that the only time that you considered minimization was when you found that you had been connected with a wrong number?
"A. That is correct, Your Honor." App. 179.
8
The Court of Appeals, with four judges dissenting, denied rehearing and rehearing en banc, 173 U.S.App.D.C. 118, 522 F.2d 1333 (1975), and we denied certiorari, 425 U.S. 917, 96 S.Ct. 1519, 47 L.Ed.2d 768 (1976). Mr. Justice BRENNAN, Mr. Justice MARSHALL, and Mr. Justice POWELL dissented from the denial of certiorari.
9
The specific statutes under which petitioners were convicted were repealed in connection with the enactment of the Comprehensive Drug Abuse Prevention and Control Act of 1970, 84 Stat. 1292.
10
The Government also argues that even if the agents in this case violated the minimization requirement by intercepting some conversations which could not have reasonably been intercepted, § 2518(10) requires suppression of only those conversations which were illegally intercepted, not suppression of all the intercepted conversations. See, e. g., United States v. Cox, 462 F.2d 1293, 1301-1302 (C.A.8 1972), cert. denied, 417 U.S. 918, 94 S.Ct. 2623, 41 L.Ed.2d 223 (1974); United States v. Sisca, 361 F.Supp. 735, 746-747 (S.D.N.Y.1973), aff'd, 503 F.2d 1337 (C.A.2), cert. denied, 419 U.S. 1008, 95 S.Ct. 328, 42 L.Ed.2d 283 (1974); United States v. Mainello, 345 F.Supp. 863, 874-877 (E.D.N.Y.1972); United States v. LaGorga, 336 F.Supp. 190 (W.D.Pa.1971). It also renews its argument that petitioner Scott does not have standing to raise a minimization challenge based upon the interception of conversations to which he was not a party. To permit such a challenge would allow Scott to secure the suppression of evidence against him by showing that the rights of other parties were violated. This, argues the Government, would contravene well-settled principles of Fourth Amendment law, cf. Brown v. United States, 411 U.S. 223, 230, 93 S.Ct. 1565, 1569, 36 L.Ed.2d 208 (1973); Alderman v. United States, 394 U.S. 165, 197, 89 S.Ct. 961, 22 L.Ed.2d 176 (1969); Simmons v. United States, 390 U.S. 377, 88 S.Ct. 967, 19 L.Ed.2d 1247 (1968), which clearly apply to Title III cases, see S.Rep. No. 1097, 90th Cong., 2d Sess., 91, 106 (1968); Alderman v. United States, supra, 394 U.S. at 175-176, 89 S.Ct. at 967-968.
Given our disposition of this case we find it unnecessary to reach the Government's contention regarding the scope of the suppression remedy in the event of a violation of the minimization requirement. We also decline to address the Government's argument with respect to standing. The Government concedes that petitioner Thurmon was a party to some nonnarcotics-related calls and thus has standing to make the arguments advanced herein. Thus, even if we were to decide that Scott has no standing we would be compelled to undertake the decision of the e issues. If, on the other hand, we were to decide that Scott does have standing, we would simply repeat exactly the same analysis made with respect to Thurmon's claim and find against Scott as well. In this circumstance we need not decide the questions of Scott's standing. See California Bankers Assn. v. Shultz, 416 U.S. 21, 44-45, 94 S.Ct. 1494, 1509, 39 L.Ed.2d 812 (1974); Doe v. Bolton, 410 U.S. 179, 189, 93 S.Ct. 739, 746, 35 L.Ed.2d 201 (1973).
11
The Government also adds that even if subjective intent were the standard, the record does not support the District Court's conclusion that the agents subjectively intended to violate the statute or the Constitution. It contends that the failure to stop intercepting calls, the interception of which was entirely reasonable, does not support a finding that the agents would have intercepted calls that should not have been intercepted had they been confronted with that situation. We express no view on this matter.
12
See, e. g., United States v. Bugarin-Casas, 484 F.2d 853, 854 n. 1 (C.A. 9 1973), cert. denied, 414 U.S. 1136, 94 S.Ct. 881, 38 L.Ed.2d 762 (1974) ("The fact that the agents were intending at the time they stopped the car to search it in any event . . . does not render the search, supported by independent probable cause, invalid"); Dodd v. Beto, 435 F.2d 868, 870 (C.A. 5 1970), cert. denied, 404 U.S. 845, 92 S.Ct. 145, 30 L.Ed.2d 81 (1971); Klingler v. United States, 409 F.2d 299, 304 (C.A. 8), cert. denied, 396 U.S. 859, 90 S.Ct. 127, 24 L.Ed.2d 110 (1969); Green v. United States, 386 F.2d 953, 956 (C.A. 10 1967); Sirimarco v. United States, 315 F.2d 699, 702 (C.A. 10), cert. denied, 374 U.S. 807, 83 S.Ct. 1696, 10 L.Ed.2d 1032 (1963). As is our usual custom, we do not, in citing these or other cases, intend to approve any particular language or holding in them.
13
This is not to say, of course, that the question of motive plays absolutely no part in the suppression inquiry. On occasion, the motive with which the officer conducts an illegal search may have some relevance in determining the propriety of applying the exclusionary rule. For example, in United States v. Janis, 428 U.S. 433, 458, 96 S.Ct. 3021, 3034, 49 L.Ed.2d 1046 (1976), we ruled that evidence unconstitutionally seized by state police could be introduced in federal civil tax proceedings because "the imposition of the exclusionary rule . . . is unlikely to provide significant, much less substantial, additional deterrence. It falls outside the offending officer's zone of primary interest." See also United States v. Ceccolini, 435 U.S. 268 at 276-277, 98 S.Ct. 1054 at 1060-1061, 55 L.Ed.2d 268 (1978). This focus on intent, however, becomes relevant only after it has been determined that the Constitution was in fact violated. We also have little doubt that as a practical matter the judge's assessment of the motives of the officers may occasionally influence his judgment regarding the credibility of the officers' claims with respect to what information was or was not available to them at the time of the incident in question. But the assessment and use of motive in this limited manner is irrelevant to our analysis of the questions at issue in this case.
14
Petitioners argue that the "district court found that the call analysis contained errors of characterization and factual inaccuracies an did not represent information known to the agents at the time of interception." Brief for Petitioners 25-26. We do not think petitioners have fairly characterized the District Court's findings, however. The District Court found: "The 'call analysis' conflicts with the reports and characterizations of the intercepted calls as made and determined by the monitoring agents whose conduct is controlling in this case." App. 38. This does not suggest that the call analysis was factually erroneous, but rather that the categories used by the attorney who prepared the analysis were not necessarily of the same sort employed by the monitoring agents. This finding would thus have relevance if the critical inquiry focused on the subjective intent of the agents, but it certainly cannot be read as a finding that the general analysis of the calls set forth in the call analysis contains "factual inaccuracies."
15
Petitioners intimate that the scope of the investigation was narrower than originally anticipated because the intercepts revealed only local purchases within the Washington area. That certainly has no bearing on what the officers had reasonable cause to believe at the time they made the interceptions, however. And while it is true that the conspiracy turned out to involve mainly local distribution rather than major interstate and international importation, it is not at all clear that the information garnered through the wiretap reduced the agents' estimates of the number of people involved or the extent of the drug traffic. In short, there is little doubt on the record that, as the agents originally thought, the conspiracy can fairly be characterized as extensive.
1
Prior to the enactment of Title III, § 605 of the Communications Act of 1934, ch. 652, 48 Stat. 1064, 1104, provided that "no person n t being authorized by the sender shall intercept any communication and divulge or publish the existence, contents, substance, purport, effect, or meaning of such intercepted communication to any person . . . ."
2
See United States v. Donovan, 429 U.S. 413, 445, 97 S.Ct. 658, 676, 50 L.Ed.2d 652 (1977) (MARSHALL, J., dissenting in part); United States v. Kahn, 415 U.S. 143, 158, 94 S.Ct. 977, 39 L.Ed.2d 225 (1974) (Douglas, J., dissenting); see also United States v. Chavez, 416 U.S. 562, 580, 94 S.Ct. 1849, 1858, 40 L.Ed.2d 380 (1974) (Douglas, J., dissenting).
3
See United States v. Kahn, supra, 415 U.S. 143, 160-162, and nn. 3-4, 94 S.Ct. 977, 986, 987, and nn. 3-4, 39 L.Ed.2d 225 (opinion of Douglas, J.).
4
Although the Court's refusal to recognize as violative of § 2518(5) a wiretap conducted in bad faith without regard to minimization necessarily will result in many invasions of privacy which otherwise would not occur, the objective requirement of "reasonableness" left unimpaired by the Court will clearly require suppression of interceptions in other circumstances. See, e. g., Bynum v. United States, 423 U.S. 952, 96 S.Ct. 357, 46 L.Ed.2d 277 (1975) (BRENNAN, J., dissenting from denial of certiorari).
5
Accord, United States v. Kahn, 415 U.S., at 151, 94 S.Ct., at 982 ("[T]he starting point, as in all statutory construction, is the precise wording chosen by Congress in enacting Title III").
| 01
|
436 U.S. 103
98 S.Ct. 1702
56 L.Ed.2d 148
SECURITIES AND EXCHANGE COMMISSION, Petitioner,v.Samuel H. SLOAN.
No. 76-1607.
Argued March 27-28, 1978.
Decided May 15, 1978.
Syllabus
The Securities and Exchange Commission (Commission) has the authority under § 12(k) of the Securities Exchange Act of 1934 (Act) "summarily to suspend trading in any security . . . for a period not exceeding ten days" if "in its opinion the public interest and the protection of investors so require." Acting pursuant to § 12(k) and its predecessor, the Commission issued a series of summary 10-day orders continuously suspending trading in the common stock of a certain corporation for over a year. Respondent, who owned 13 shares of the stock and who had engaged in substantial purchases and short sales of shares of the stock, filed a petition pursuant to the Act in the Court of Appeals for a review of the orders, contending, inter alia, that the "tacking" of the 10-day summary suspension orders exceeded the Commission's authority under § 12(k). Because shortly after the suit was brought no suspension order remained in effect and the Commission asserted that it had no plans to issue such orders in the foreseeable future, the Commission claimed that the case was moot. The court rejected that claim and upheld respondent's position on the merits. In this Court, the Commission contends that the facts on the record are inadequate to allow a proper resolution of the mootness issue and that in any event it has the authority to issue consecutive 10-day summary suspension orders. Held :
1. The case is not moot, since it is "capable of repetition, yet evading review," Southern Pacific Terminal Co. v. ICC, 219 U.S. 498, 515, 31 S.Ct. 279, 283, 55 L.Ed. 310. Effective judicial review is precluded during the life of the orders because a series of consecutive suspension orders may last no more than 20 days. In view of the numerous violations ascribed to the corporation involved, there is a reasonable probability that its stock will again be subjected to consecutive sum ary suspension orders; thus, there is a "reasonable expectation that the same complaining party" will be subjected to the same action again. Cf. Weinstein v. Bradford, 423 U.S. 147, 96 S.Ct. 347, 46 L.Ed.2d 350. Pp. 108-110.
2. The Commission does not have the authority under § 12(k), based upon a single set of circumstances, to issue a series of summary orders that would suspend trading in a stock beyond the initial 10-day period, even though the Commission periodically redetermines that such action is required by "the public interest" and for "the protection of investors." Pp. 110-123.
(a) The language of the statute establishes the 10-day period as the maximum time during which stock trading can be suspended for any single set of circumstances. Pp. 111-112.
(b) In view of congressional recognition in other sections of the Act that any long-term sanctions or continuation of summary restrictions must be accompanied by notice and an opportunity for a hearing, the absence of any provision in § 12(k) for extending summary suspensions beyond the initial 10-day period must be taken as a clear indication that extended summary restrictions are not authorized under § 12(k). Pp. 112-114.
(c) The statutory pattern leaves little doubt that § 12(k) is designed to empower the Commission to prepare to deploy such other remedies as injunctive relief or a suspension or revocation of security registration, not to empower the Commission to reissue a summary order absent the discovery of a new manipulative scheme. Pp. 114-115.
(d) Those other remedies are not as unavailable as the Commission claims, as is evidenced by this very case, where the Commission during the first series of suspension orders actually sought an injunction against the corporation involved and certain of its principals and during the second series of suspensions approved the filing of an injunction action against its management. Moreover, though the Commission contends that the suspension of trading is necessary for the dissemination in the marketplace of information about manipulative schemes, the Commission is at liberty to reveal such information at the end of the 10-day period and let investors make their own judgments. And in any event the mere claim that a broad summary suspension power is necessary cannot persuade the Court to read § 12(k) more broadly than its language and the statutory scheme reasonably permit. Pp. 115-117.
(e) Though the Commission's view that the Act authorizes successive suspension orders may be entitled to deference, that consideration cannot overcome the clear contrary indications of the statute itself, especially when the Commission has not accompanied its administrative construction with a contemporaneous well-reasoned explanation of its action. Adamo Wrecking Co. v. United States, 434 U.S. 275, 287-288, 98 S.Ct. 566, 574, 54 L.Ed.2d 538 n. 5. Pp. 117-119.
(f) There is no convincing indication that Congress has approved the Commission's construction of the Act. Pp. 119-123.
547 F.2d 152, affirmed.
Harvey L. Pitt, Washington, D. C., for petitioner.
Samuel H. Sloan, respondent, pro se.
Mr. Justice REHNQUIST delivered the opinion of the Court.
1
Under the Securities Exchange Act of 1934, ch. 404, 48 Stat. 881, the Securities and Exchange Commission has the authority "summarily to suspend trading in any security . . . for a period not exceeding ten days" if "in its opinion the public interest and the protection of investors so require."1 Acting pursuant to this authority the Commission issued a series of consecutive orders suspending trading in the common stock of Canadian Javelin, Ltd. (CJL), for over a year. The Court of Appeals for the Second Circuit held that such a series of suspensions was beyond the scope of the Commission's statutory authority. 547 F.2d 152, 157-158 (1976). We granted certiorari to consider this important question, 434 U.S. 901, 98 S.Ct. 295, 54 L Ed.2d 187 (1977), and, finding ourselves in basic agreement with the Court of Appeals, we affirm. We hold that even though there be a periodic redetermination of whether such action is required by "the public interest" and for "the protection of investors," the Commission is not empowered to issue, based upon a single set of circumstances, a series of summary orders which would suspend trading beyond the initial 10-day period.
2
* On November 29, 1973, apparently because CJL had disseminated allegedly false and misleading press releases concerning certain of its business activities, the Commission issued the first of what was to become a series of summary 10-day suspension orders continuously suspending trading in CJL common stock from that date until January 26, 1975. App. 109. During this series of suspensions respondent Sloan, who owned 13 shares of CJL stock and had engaged in substantial purchases and short sales of shares of that stock, filed a petition in the United States Court of Appeals for the Second Circuit challenging the orders on a variety of grounds. On October 15, 1975, the court dismissed as frivolous all respondent's claims, except his allegation that the "tacking" of 10-day summary suspension orders for an indefinite period was an abuse of the agency's authority and a deprivation of due process. It further concluded, however, that in light of two events which had occurred prior to argument, it could not address this question at that time. The first event of significance was the resumption of trading on January 26, 1975. The second was the commencement of a second series of summary 10-day suspension orders, which was still in effect on October 15. This series had begun on April 29, 1975, when the Commission issued a 10-day order based on the fact that the Royal Canadian Mounted Police had launched an extensive investigation into alleged manipulation of CJL common stock on the American Stock Exchange and several Canadian stock exchanges. App. 11-12. This time 37 separate orders were issued, suspending trading continuously from April 29, 1975, to May 2, 1976. The court thought the record before it on October 15 inadequate in light of these events and dismissed respondent's appeal "without prejudice to his repleading after an administrative hearing before the SEC . . .," which hearing, though apparently not required by statute or regulation, had been offered by the Commission at oral argument. 527 F.2d 11, 12 (1975), cert. denied, 426 U.S. 935, 96 S.Ct. 2649, 49 L.Ed.2d 387 (1976).
3
Thereafter respondent immediately petitioned the Commission for the promised hearing. The hearing was not forthcoming, however, so on April 23, 1976, during the period when the second series of orders was still in effect, respondent brought the p esent action pursuant to § 25(a)(1) of the Act, 15 U.S.C. § 78y(a)(1) (1976 ed.), challenging the second series of suspension orders. He argued, among other things, that there was no rational basis for the suspension orders, that they were not supported by substantial evidence in any event, and that the "tacking" of 10-day summary suspension orders was beyond the Commission's authority because the statute specifically authorized suspension "for a period not exceeding ten days."2 The court held in respondent's favor on this latter point. It first concluded that despite the fact that there had been no 10-day suspension order in effect since May 2, 1976, and the Commission had asserted that it had no plans to consider or issue an order against CJL in the foreseeable future, the case was not moot because it was " 'capable of repetition, yet evading review.' " 547 F.2d, at 158, quoting from Southern Pacific Terminal Co. v. ICC, 219 U.S. 498, 515, 31 S.Ct. 279, 283, 55 L.Ed. 310 (1911).
4
The court then decided that the statutes which authorized summary suspensions—§ 12(k) and its predecessors—did not empower the Commission to issue successive orders to curtail trading in a security for a period beyond the initial 10-day period. 547 F.2d, at 157-158. We granted certiorari, specifically directing the attention of the parties to the question of mootness, 434 U.S. 901, 98 S.Ct. 295, 54 L.Ed.2d 187 (1977), to which we now turn.
II
5
Respondent argues that this case is not moot because, as the Court of Appeals observed, it is "capable of repetition, yet evading review."3 The Commission, on the other hand, does not urge that the case is demonstrably moot, but rather that there simply are not enough facts on the record to allow a proper determination of mootness. It argues that there is no "reasonable expectation" that respondent will be harmed by further suspensions because, " 'the investing public now ha[ving] been apprised of the relevant facts, the concealment of which had threatened to disrupt the market in CJL stock, there is no reason to believe that it will be necessary to suspend trading again.' " Brief for Petitioner 15, quoting from Pet. for Cert. 12 n. 7. Cf. Weinstein v. Bradford, 423 U.S. 147, 149, 96 S.Ct. 347, 348, 46 L.Ed.2d 350 (1975). The Commission concedes, however, that respondent, in his capacity as a diversified investor, might be harmed in the future by the suspension of some other security which he owns. But it further contends that respondent has not provided enough data about the number or type of securities in his portfolio to enable the Court to determine whether there is a "reasonable" likelihood that any of those securities will be subjected to consecutive summary suspension orders.4
6
Contrary to the Commission's contention, we think even on the record presently before us this case falls squarely within the general principle first enunciated in Southern Pacific Terminal Co. v. ICC, supra, and further clarified in Weinstein v. Bradford, supra, that even in the absence of a class action a case is not moot when "(1) the challenged action was in its duration too short to be fully litigated prior to its cessation or expiration, and (2) there was a reasonable expectation that the same complaining party would be subjected to the same action again." Weinstein v. Bradford, supra, at 147, 96 S.Ct. at 349 (emphasis added). That the first prong of this test is satisfied is not in dispute. A series of consecutive suspension orders may last no more than 20 days, making effective judicial review impossible during the life of the orders. We likewise have no doubt that the second part of the test also has been met here. CJL has, to put it mildly, a history of sailing close to the wind.5 Thus, the Commission's protestations to the contrary notwithstanding, there is a reasonable expectation, within the meaning of Weinstein v. Bradford, supra, that CJL stock will again be subjected to consecutive summary suspension orders and that respondent, who apparently still owns CJL stock, will suffer the same type of injury he suffered before. This is sufficient in and of itself to satisfy this part of the test. But in addition, respondent owns other securities, the trading of which may also be summarily suspended. As even the Commission admits, this fact can only increase the probability that respondent will again suffer the type of harm of which he is presently complaining. It thus can only buttress our conclusion that there is a reasonable expectation of recurring injury to the same complaining party.
III
A.
7
Turning to the merits, we note that this is not a case where the Commission, discovering the existence of a manipulative scheme affecting CJL stock, suspended trading for 10 days and then, upon the discovery of a second manipulative scheme or other improper activity unrelated to the first scheme, ordered a second 10-day suspension.6 Instead it is a case in which the Commission issued a series of summary suspension orders lasting over a year on the basis of evidence revealing a single, though likely sizable, manipulative scheme.7 Thus, the only question confronting us is whether, even upon a periodic redetermination of "necessity," the Commission is statutorily authorized to issue a series of summary suspension orders based upon a single set of events or circumstances which threaten an orderly market. This question must, in our opinion, be answered in the negative.
8
The first and most salient point leading us to this conclusion is the language of the statute. Section 12(k) authorizes the Commission "summarily to suspend trading in any security . . . for a period not exceeding ten days . . . ." 15 U.S.C. § 78l (k) (1976 ed.) (emphasis added). The Commission would have us read the underscored phrase as a limitation only upon the duration of a single suspension order. So read, the Commission could indefinitely suspend trading in a security without any hearing or other procedural safeguards as long as it redetermined every 10 days that suspension was required by the public interest and for the protection of investors. While perhaps not an impossible reading of the statute, we are persuaded it is not the most natural or logical one. The duration limitation rather appears on its face to be just that—a maximum time period for which trading can be suspended for any single set of circumstances.
9
Apart from the language of the statute, which we find persuasive in and of itself, there are other reasons to adopt this construction of the statute. In the first place, the power to summarily suspend trading in a security even for 10 days, without any notice, opportunity to be heard, or findings based upon a record, is an awesome power with a potentially devastating impact on the issuer, its shareholders, and other investors. A clear mandate from Congress, such as that found in § 12(k), is necessary to confer this power. No less clear a mandate can be expected from Congress to authorize the Commission to extend, virtually without limit, these periods of suspension. But we find no such unmistakable mandate in § 12(k). Indeed, if anything, that section points in the opposite direction.
10
Other sections of the statute reinforce the conclusion that in this area Congress considered summary restrictions to be somewhat drastic and properly used only for very brief periods of time. When explicitly longer term, though perhaps temporary, measures are to be taken against some person, company, or security, Congress invariably requires the Commission to give some sort of notice and opportunity to be heard. For example, § 12(j) of the Act authorizes the Commission, as it deems necessary for the protection of investors, to suspend the registration of a security for a period not exceeding 12 months if it makes certain findings "on the record after notice and opportunity for hearing . . . ." 15 U.S.C. § 78l (j) (1976 ed.) (emphasis added). Another section of the Act empowers the Commission to suspend broker-dealer registration or a period not exceeding 12 months upon certain findings made only "on the record after notice and opportunity for hearing." § 78o (b)(4) (1976 ed.) (emphasis added). Still another section allows the Commission, pending final determination whether a broker-dealer's registration should be revoked, to temporarily suspend that registration, but only "after notice and opportunity for hearing." § 78o (b)(5) (1976 ed.) (emphasis added). Former § 15(b)(6), which dealt with the registration of broker-dealers, also lends support to the notion that as a general matter Congress meant to allow the Commission to take summary action only for the period specified in the statute when that action is based upon any single set of circumstances. That section allowed the Commission to summarily postpone the effective date of registration for 15 days, and then, after appropriate notice and opportunity for hearing, to continue that postponement pending final resolution of the matter.8 The section which replaced § 15(b)(6) even further underscores this general pattern. It requires the Commission to take some action—either granting the registration or instituting proceedings to determine whether registration should be denied within 45 days. 15 U.S.C. § 78o (b)(1) (1976 ed.). In light of the explicit congressional recognition in other sections of the Act, both past and present, that any long-term sanctions or any continuation of summary restrictions must be accompanied by notice and an opportunity for a hearing, it is difficult to read the silence in § 12(k) as an authorization for an extension of summary restrictions without such a hearing, as the Commission contends. The more plausible interpretation is that Congress did not intend the Commission to have the power to extend the length of suspensions under § 12(k) at all, much less to repeatedly extend such suspensions without any hearing.
B
11
The Commission advances four arguments in support of its position, none of which we find persuasive. It first argues that only its interpretation makes sense out of the statute. That is, if the Commission discovers a manipulative scheme and suspends trading for 10 days, surely it can suspend trading 30 days later upon the discovery of a second manipulative scheme. But if trading may be suspended a second time 30 days later upon the discovery of another manipulative scheme, it surely could be suspended only 10 days later if the discovery of the second scheme were made on the eve of the expiration of the first order. And, continues the Commission, since nothing on the face of the statute requires it to consider only evidence of new manipulative schemes when evaluating the public interest and the needs of investors, it must have the power to issue consecutive suspension orders even in the absence of a new or different manipulative scheme, as long as the public interest requires it.
12
This argument is unpersuasive, however, because the conclusion simply does not follow from the va ious premises. Even assuming the Commission can again suspend trading upon learning of another event which threatens the stability of the market, it simply does not follow that the Commission therefore must necessarily have the power to do so even in the absence of such a discovery. On its face and in the context of this statutory pattern, § 12(k) is more properly viewed as a device to allow the Commission to take emergency action for 10 days while it prepares to deploy its other remedies, such as a temporary restraining order, a preliminary or permanent injunction, or a suspension or revocation of the registration of a security. The Commission's argument would render unnecessary to a greater or lesser extent all of these other admittedly more cumbersome remedies which Congress has given to it.
13
Closely related to the Commission's first argument is its second—its construction furthers the statute's remedial purposes. Here the Commission merely asserts that it "has found that the remedial purposes of the statute require successive suspension of trading in particular securities, in order to maintain orderly and fair capital markets." Brief for Petitioner 37. Other powers granted the Commission are, in its opinion, simply insufficient to accomplish its purposes.
14
We likewise reject this argument. In the first place, the Commission has not made a very persuasive showing that other remedies are ineffective. It argues that injunctions and temporary restraining orders are insufficient because they take time and evidence to obtain and because they can be obtained only against wrongdoers and not necessarily as a stopgap measure in order to suspend trading simply until more information can be disseminated into the marketplace. The first of these alleged insufficiencies is no more than a reiteration of the familiar claim of many Government agencies that any semblance of an adversary proceeding will delay the imposition of the result which they believe desirable. It seems to us that Congress, in weighing the public interest against the burden imposed upon private parties, has concluded that 10 days is sufficient for gathering necessary evidence.
15
This very case belies the Commission's argument that injunctions cannot be sought in appropriate cases. At exactly the same time the Commission commenced the first series of suspension orders it also sought a civil injunction against CJL and certain of its principals, alleging violations of the registration and antifraud provisions of the Securities Act of 1933, violations of the antifraud and reporting provisions of the Securities Exchange Act of 1934, and various other improper practices, including the filing of false reports with the Commission and the dissemination of a series of press releases containing false and misleading information. App. 109. And during the second series of suspension orders, the Commission approved the filing of an action seeking an injunction against those in the management of CJL to prohibit them from engaging in further violations of the Acts. Id., at 101.
16
The second of these alleged insufficiencies is likewise less than overwhelming. Even assuming that it is proper to suspend trading simply in order to enhance the information in the marketplace, there is nothing to indicate that the Commission cannot simply reveal to the investing public at the end of 10 days the reasons which it thought justified the initial summary suspension and then let the investors make their own judgments.
17
Even assuming, however, that a totally satisfactory remedy—at least from the Commission's viewpoint—is not available in every instance in which the Commission would like such a remedy, we would not be inclined to read § 12(k) more broadly than its language and the statutory scheme reasonably permit. Indeed, the Commission's argument amounts to little more than the notion that § 12(k) ought to be a panacea for every type of problem which may beset the marketplace. This does not appear to be the first time the Commission has adopted this construction of the statute. As early as 1961 a recognized authority in this area of the law called attention to the fact that the Commission was gradually carrying over the summary suspension power granted in the predecessors of § 12(k) into other areas of its statutory authority and using it as a pendente lite power to keep in effect a suspension of trading pending final disposition of delisting proceedings. 2 L. Loss, Securities Regulation 854-855 (2d ed. 1961).
18
The author then questioned the propriety of extending the summary suspension power in that manner, id., at 854, and we think those same questions arise when the Commission argues that the summary suspension power should be available not only for the purposes clearly contemplated by § 12(k), but also as a solution to virtually any other problem which might occur in the market place. We do not think § 12(k) was meant to be such a cure-all. It provides the Commission with a powerful weapon for dealing with certain problems. But its time limit is clearly and precisely defined. It cannot be judicially or administratively extended simply by doubtful arguments as to the need for a greater duration of suspension orders than it allows. If extension of the summary suspension power is desirable, the proper source of that power is Congress. Cf. FMC v. Seatrain Lines, Inc., 411 U.S. 726, 744-745, 93 S.Ct. 1773, 1784, 36 L.Ed.2d 620 (1973).
19
The Commission next argues that its interpretation of the statute—that the statute authorizes successive suspension orders has been both consistent and longstanding, dating from 1944. It is thus entitled to great deference. See United States v. National Assn. of Securities Dealers, 422 U.S. 694, 719, 95 S.Ct. 2427, 2442, 45 L.Ed.2d 486 (1975); Saxbe v. Bustos, 419 U.S. 65, 74, 95 S.Ct. 272, 278, 42 L.Ed.2d 231 (1974).
20
While this undoubtedly is true as a general principle of law, it is not an argument of sufficient force in this case to overcome the clear contrary indications of the statute itself. In the first place it is not apparent from the record that on any of the occasions when a series of consecutive summary suspension orders was issued the Commission actually addressed in any detail the statutory authorization under which it took that action. As we said just this Term in Adamo Wrecking Co. v. United States, 434 U.S. 275, 287 n. 5, 98 S.Ct. 566, 574 n. 5, 54 L.Ed.2d 538 (1978):
21
"This lack of specific attention to the statutory authorization is especially important in light of this Court's pronouncement in Skidmore v. Swift & Co., 323 U.S. 134, 140, 65 S.Ct. 161, 164, 89 L.Ed. 124 (1944), that one factor to be considered in giving weight to an administrative ruling is 'the thoroughness evident in its consideration, the validity of its reasoning, its consistency with earlier and later pronouncements, and all those factors which give it power to persuade, if lacking power to control.' "
22
To further paraphrase that opinion, since this Court can only speculate as to the Commission's reasons for reaching the conclusion that it did, the mere issuance of consecutive summary suspension orders, without a concomitant exegesis of the statutory authority for doing so, obviously lacks "power to persuade" as to the existence of such authority. Ibid. Nor does the existence of a prior administrative practice, even a well-explained one, relieve us of our responsibility to determine whether that practice is consistent with the agency's statutory authority.
23
"The construction put on a statute by the agency charged with administering it is entitled to deference by the courts, and ordinarily that construction will be affirmed if it has a 'reasonable basis in law.' NLRB v. Hearst Publications, 322 U.S. 111, 131, 64 S.Ct. 851, 860, 88 L.Ed. 1170; Unemployment Commission v. Aragon, 329 U.S. 143, 153-154, 67 S.Ct. 245, 250, 251, 91 L.Ed. 136. But the courts are the f nal authorities on issues of statutory construction, FTC v. Colgate-Palmolive Co., 380 U.S. 374, 385, 85 S.Ct. 1035, 1042, 13 L.Ed.2d 904, and 'are not obliged to stand aside and rubber-stamp their affirmance of administrative decisions that they deem inconsistent with a statutory mandate or that frustrate the congressional policy underlying a statute.' NLRB v. Brown, 380 U.S. 278, 291, 85 S.Ct. 980, 988, 13 L.Ed.2d 839." Volkswagenwerk v. FMC, 390 U.S. 261, 272, 88 S.Ct. 929, 935, 19 L.Ed.2d 1090 (1968).
24
And this is just such a case—the construction placed on the statute by the Commission, though of long standing, is, for the reasons given in Part III-A of this opinion, inconsistent with the statutory mandate. We explicitly contemplated just this situation in FMC v. Seatrain Lines, Inc., supra, 411 U.S., at 745, 93 S.Ct., at 1785, where we said:
25
"But the Commission contends that since it is charged with administration of the statutory scheme, its construction of the statute over an extended period should be given great weight. . . . This proposition may, as a general matter, be conceded, although it must be tempered with the caveat that an agency may not bootstrap itself into an area in which it has no jurisdiction by repeatedly violating its statutory mandate."
26
And our clear duty in such a situation is to reject the administrative interpretation of the statute.
27
Finally, the Commission argues that for a variety of reasons Congress should be considered to have approved the Commission's construction of the statute as correct. Not only has Congress re-enacted the summary suspension power without disapproving the Commission's construction, but the Commission participated in the drafting of much of this legislation and on at least one occasion made its views known to Congress in Committee hearings.9 Furthermore, at least one Committee indicated on one occasion that it understood and approved of the Commission's practice.10 See Zuber v. Allen, 396 U.S. 168, 192, 90 S.Ct. 314, 327, 24 L.Ed.2d 345 (1969); United States v. Correll, 389 U.S. 299, 305-306, 88 S.Ct. 445, 448-449, 19 L.Ed.2d 537 (1967); Fribourg Navigation Co. v. Commissioner of Internal Revenue, 383 U.S. 272, 283, 86 S.Ct. 862, 868, 15 L.Ed.2d 751 (1966).
28
While we of course recognize the validity of the general principle illustrated by the cases upon which the Commission relies, we do not believe it to be applicable here. In Zuber v. Allen, supra, 396 U.S. at 192, 90 S.Ct. at 328, the Court stated that a contemporaneous administrative construction of an agency's own enabling legislation "is only one input in the interpretational equation. Its impact carries most weight when the administrators participated in drafting and directly made known their views to Congress in Committee hearings." Here the administrators, so far as we are advised, made no reference at all to their present construction of § 12(k) to the Congress which drafted the "enabling legislation" here in question—the Securities Exchange Act of 1934. They made known to at least one Committee their subsequent construction of that section 29 years later, at a time when the attention of the Committee and of the Congress was focused on issues not directly related to the one presently before the Court.11 Although the section in question was re-enacted in 1964, and while it appears that the Committee Report did recognize and approve of the Commission's practice, this is scarcely the sort of congressional approval referred to in Zuber, supra.
29
We are extremely hesitant to presume general congressional awareness of the Commission's construction based only upon a few isolated statements in the thousands of pages of legislative documents. That language in a Committee Report, without additional indication of more widespread congressional awareness, is simply not sufficient to invoke the presumption in a case such as this. For here its invocation would result in a construction of the statute which not only is at odds with the language of the section in question and the pattern of the statute taken as a whole, but also is extremely far reaching in terms of the virtually untrammeled and unreviewable power it would vest in a regulatory agency.
30
Even if we were willing to presume such general awareness on the part of Congress, we are not at all sure that such awareness at the time of re-enactment would be tantamount to amendment of what we conceive to be the rather plain meaning of the language of § 12(k). On this point the present case differs significantly from United States v. Correll, supra, 389 U.S. at 304, 88 S.Ct. at 448, where the Court took pains to point out in relying on a construction of a tax statute by the Commissioner of Internal Revenue that "to the extent that the words chosen by Congress cut in either direction, they tend to support rather than defeat the Commissioner's position . . . ."
31
Subsequent congressional pronouncements also cast doubt on whether the prior statements called to our attention can be taken at face value. When consolidating the former §§ 15(c)(5) and 19(a)(4) in 1975, see n. 1, supra, Congress also enacted § 12(j), which allows the Commission "to suspend for a period not exceeding twelve months, or to revoke the registration of a security, if the Commission finds, on the record after notice and opportunity for hearing, that the issuer of such security has failed to comply with any provision of this chapter or the rules and regulations thereunder." 15 U.S.C. § 78l (j) (1976 ed.). While this particular power is not new, see 15 U.S.C. § 78s(a)(2), the effect of its exercise was expanded to include a suspension of trading.12 "With this change," stated the Senate Committee on Banking, Housing and Urban Affairs, "the Commission is expected to use this section rather than its ten-day suspension power in cases of extended duration." S.Rep.No.94-75, 106 (1975) (emphasis added); U.S.Code Cong. & Admin.News 1975, p. 284. Thus, even assuming, arguendo, that the 1963 statements have more force than we are willing to attribute to them, and that, as the Commission argues, § 12(j) does not cover quite as broad a range of situations as § 12(k), the 1975 congressional statements would still have to be read as seriously undermining the continued validity of the 1963 statements as a basis upon which to adopt the Commission's construction of the statute.
32
In sum, had Congress intended the Commission to have the power to summarily suspend trading virtually indefinitely we expect that it could and would have authorized it more clearly than it did in § 12(k). The sweeping nature of that power supports this expectation. The absence of any truly persuasive legislative history to support the Commission's view, and the entire statutory scheme suggesting that in fact the Commission is not so empowered, reinforce our conclusion that the Court of Appeals was correct in concluding no such power exists. Accordingly, its judgment is
33
Affirmed.
34
Mr. Justice BRENNAN, with whom Mr. Justice MARSHALL joins, concurring in the judgment.
35
Although I concur in much of the Court's reasoning and in its holding that "the Commission is not empowered to issue, based upon a single set of circumstances, a series of summary orders which would suspend trading beyond the initial 10-day period," ante, at 106, I cannot join the Court's opinion because of its omissions and unfortunate dicta.
36
* The Court's opinion does not reveal how flagrantly abusive the Security and Exchange Commission's use of its § 12(k) authority has been. That section authorizes the Commission "summarily to suspend trading in any security . . . for a period not exceeding ten days . . . ." 15 U.S.C. § 78l (k) (1976 ed.). As the Court says, this language "is persuasive in and of itself" that 10 days is the "maximum time period for which trading can be suspended for any single set of circumstances." Ante, at 112. But the Commission has used § 12(k), or its predecessor statutes, see ante, at 105 n. 1, to suspend trading in a security for up to 13 years. See App. to Brief for Canadian Javelin, Ltd., as Amicus Curiae 1a. And, although the 13-year suspension is an extreme example, the record is replete with suspensions lasting the better part of a year. See App. 184-211. I agree that § 12(k) is clear on its face and that it prohibits this administrative practice. But even if § 12(k) were unclear, a 13-year suspension, or even a 1-year suspension as here, without notice or hearing so obviously violates fundamentals of due process and fair play that no reasonable individual could suppose that Congress intended to authorize such a thing. See also 15 U.S.C. § 78l (j) (1976 ed.) (requiring notice and a hearing before a registration statement can be suspended), discussed ante, at 121-122.
37
Moreover, the SEC's procedural implementation of its § 12(k) power mocks any conclusion other than that the SEC simply could not care whether its § 12(k) orders are justified. So far as this record shows, the EC never reveals the reasons for its suspension orders.1 To be sure, here respondent was able long after the fact to obtain some explanation through a Freedom of Information Act request, but even the information tendered was heavily excised and none of it even purports to state the reasoning of the Commissioners under whose authority § 12(k) orders issue.2 Nonetheless, when the SEC finally agreed to give respondent a hearing on the suspension of Canadian Javelin stock, it required respondent to state, in a verified petition (that is, under oath ) why he thought the unrevealed conclusions of the SEC to be wrong.3 This is obscurantism run riot.
38
Accordingly, while we today leave open the question whether the SEC could tack successive 10-day suspensions if this were necessary to meet first one and then a different emergent situation, I for one would look with great disfavor on any effort to tack suspension periods unless the SEC concurrently adopted a policy of stating its reasons for each suspension. Without such a statement of reasons, I fear our holding today will have no force since the SEC's administration of its suspension power will be reviewable, if at all, only by the circuitous and time-consuming path followed by respondent here.
II
39
In addition, I cannot join the Court's reaffirmance of Adamo Wrecking § increasingly scholastic approach to the use of administrative practice in interpreting federal statutes. See ante, at 117-118. This reaffirmance is totally unnecessary in this case for, as the Court notes, whatever that administrative construction might be in this case, it is "inconsistent with the statutory mandate," ante, at 118, which is clear on the face of the statute. Ante, at 112.
40
Worse, however, is the Court's insistence that, to be credited, an administrative practice must pay " 'specific attention to the statutory authorization' " under which an agency purports to operate. Ante, at 117, quoting Adamo Wrecking Co. v. United States, 434 U.S. 275, 287 . 5, 98 S.Ct. 566, 574 n. 5, 54 L.Ed.2d 538 (1978). As my Brother STEVENS noted in dissent in Adamo, see id., at 302, 98 S.Ct., at 577, Norwegian Nitrogen Co. v. United States, 288 U.S. 294, 53 S.Ct. 350, 77 L.Ed. 796 (1933)—perhaps our leading case on the use of administrative practice as a guide to statutory interpretation says not a word about attention to statutory authority. Nor does it reduce the value of administrative practice to its "persuasive effect" as the Court would apparently do here. Instead, as I understand the case, Norwegian Nitrogen focuses on the "contemporaneous construction of a statute by the men charged with the responsibility of setting its machinery in motion,"id., at 315, 53 S.Ct. at 358, precisely because their action is itself evidence of assumptions—perhaps unspoken by either the administrators or Congress—brought to a regulatory problem by all involved in its solution. Indeed, common experience tells us that it is assumptions which everyone shares which often go unspoken because their very obviousness negates the need to set them out.
41
Therefore, while I do not dispute that well-reasoned administrative opinions which pay scrupulous attention to every jot and tittle of statutory language are more persuasive than unexplained actions—and certainly more in keeping with a norm of administrative action that ought to be encouraged—I cannot dismiss, as the Court apparently does, less well-reasoned, or even unexplained, administrative actions as irrelevant to the meaning of a statute.
42
Mr. Justice BLACKMUN, concurring in the judgment.
43
I join the Court in its judgment, but I am less sure than the Court is that the Congress has not granted the Securities and Exchange Commission at least some power to suspend trading in a nonexempt security for successive 10-day periods despite the absence of a new set of circumstances. The Congress' awareness, recognition, and acceptance of the Commission's practice, see ante, at 119-120, nn. 9 and 10, at the time of the 1964 amendments, blunts, it seems to me, the original literal language of the statute. The 1975 Report of the Senate Banking Committee, stating that the Commission was "expected to use" § 12(j)'s amended suspension-of-registration provision "in cases of extended duration," ante, at 122, certainly demands new circumspection of the Commission, but I do not believe it wholly extinguished Congress' acceptance of restrained use of successive 10-day suspensions when an emergency situation is presented, as for instance, where the Commission is unable adequately to inform the public of the existence of a suspected market manipulation within a single 10-day period. Section 12(j)'s suspension remedy provides no aid when a nonissuer has violated the securities law, or where the security involved is not registered, or in the interim period before notice and an opportunity for a hearing can be provided and a formal finding of misconduct made on the record.
44
Here, the Commission indulged in 37 suspension orders, all but the last issued "quite bare of any emergency findings," to borrow Professor Loss' phrase. Beyond the opaque suggestion in an April 1975 Release, No. 11,383, that the Commission was awaiting the "dissemination of information concerning regulatory action by Canadian authorities," shareholders of CJL were given no hint why their securities were to be made nonnegotiable for over a year. Until April 22, 1976, see Release No. 12,361, the SEC provided no opportunity to shareholders to dispute the factual premises of a suspension, and, in the absence of any explanation by the Commission of the basis for its suspension orders, such a right to comment would be useless. As such, I conclude that the use of suspension orders in this case exceeded the limits of the Commission's discretion. Given the 1975 amendments, a year-long blockade of trading without reasoned explanation of the supposed emergency or opportunity for an interim hearing clearly ex eeds Congress' intention.
1
This authority is presently found in § 12(k) of the Act, which was added by amendment in 1975 by Pub.L. 94-29 § 9, 89 Stat. 118. It provides in pertinent part:
"If in its opinion the public interest and the protection of investors so require, the Commission is authorized summarily to suspend trading in any security (other than an exempted security) for a period not exceeding ten days . . . . No member of a national securities exchange, broker, or dealer shall make use of the mails or any means or instrumentality of interstate commerce to effect any transaction in, or to induce the purchase or sale of, any security in which trading is so suspended." 15 U.S.C. § 78l (k) (1976 ed.).
This power was previously found in §§ 15(c)(5) and 19(a)(4) of the Act, which for all purposes relevant to this case were substantially identical to the current statute, § 12(k), except that § 15(c)(5) authorized summary suspension of trading in securities which were traded in the over-the-counter market, while § 19(a)(4) permitted summary suspension of trading in securities which were traded on the national exchanges. 15 U.S.C. §§ 78 o (c)(5) and 78s(a)(4). Congress consolidated those powers in § 12(k).
2
Respondent also argued that the orders violated his due process rights because he was never given notice and an opportunity for a hearing and that § 12(k) was an unconstitutional delegation of legislative power. The court found it unnecessary to address these issues.
3
Respondent also contends that he has suffered collateral legal consequences from the series of suspension orders, and thus the case is not moot. Cf. Sibron v. New York, 392 U.S. 40, 57, 88 S.Ct. 1889, 1899, 20 L.Ed.2d 917 (1968). We find it unnecessary to address this further contention.
4
The Commission contends that to determine the mathematical probability that at least one of the securities held by respondent will be subjected to consecutive suspension orders it is necessary to know, in addition to other information admittedly available in the Commission's own records, the number of publicly traded corporations of which respondent is a shareholder. This datum cannot be ascertained with any accuracy on this record, however, claims the Commission, because respondent has made various representations regarding that number at various stages of the litigation. Compare App. 153 with Brief in Response 18. The Commission adds that the pr bability could be determined with even greater accuracy if respondent revealed the nature of his portfolio because certain securities—those listed on the New York Stock Exchange, for example—are seldom summarily suspended.
5
Within the last five years the Commission has twice issued a series of orders, each of which suspended trading in CJL stock for over a year. In the various staff reports given to the Commission in connection with and attached to the second series of orders, the Division of Enforcement indicates in no less than six separate reports that either the Commission or the various stock exchanges view CJL as a "chronic violator." App. 20, 22, 24, 26, 28, 31. And reference is made to "the continuous [CJL] problems." Id., at 61. Furthermore, counsel for the Commission represented at oral argument that there were in fact three separate bases for the second series of suspensions—alleged market manipulation, a change in management of the company, and a failure to file current reports. Tr. of Oral Arg. 17-18.
6
Neither does the first series of orders appear to be of this type. Rather, like the second series, it appears to be predicated mainly on one major impropriety on the part of CJL and its personnel, which impropriety requ red the Commission, in its opinion, to issue a year-long series of summary suspension orders to protect investors and for the public interest.
7
As previously indicated, see n. 5, supra, the Commission advances three separate reasons for the suspensions, thus implicitly suggesting that perhaps this is a case where the Commission discovered independent reasons to suspend trading after the initial suspension. We note first that there are doubts whether these "reasons" independently would have justified suspension. For example, we doubt the Commission regularly suspends trading because of a "change in management." A suspension might be justified if management steps down under suspicious circumstances, but the suspicious circumstance here is the initial reason advanced for suspension—the manipulative scheme and thus the change in management can hardly be considered an independent justification for suspension. More importantly, however, even assuming the existence of three independent reasons for suspension, that leaves 34 suspension orders that were not based on independent reasons and thus the question still remains. Does the statute empower the Commission to continue to "roll over" suspension orders for the same allegedly improper activity simply upon a redetermination that the continued suspension is "required" by the public interest and for the protection of investors?
8
The former § 15(b)(6) provided in pertinent part:
"Pending final determination whether any registration under this subsection shall be denied, the Commission may by order postpone the effective date of such registration for a period not to exceed fifteen days, but if, after appropriate notice and opportunity for hearing (which may consist solely of affidavits and oral arguments), it shall appear to the Commission to be necessary or appropriate in the public interest or for the protection of investors to postpone the effective date of such registration until final determination, the Commission shall so order. Pending final determination whether any such registration shall be revoked, the Commission shall by order suspend such registration if, after appropriate notice and opportunity for hearing, such suspension shall appear to the Commission to be necessary or appropriate in the public interest or for the protection of investors. . . ." 15 U.S.C. § 78o (b)(6).
9
In 1963, when Congress was considering the former § 15(c)(5), which extended the Commission's summary suspension power to securities traded in the over-the-counter market, the Commission informed a Subcommittee of the House Committee on Interstate and Foreign Commerce of its current administrative practice. One paragraph in the Commission's 30-page report to the Subcommittee reads as follows:
"Under section 19(a)(4), the Commission has issued more than one suspension when, upon reexamination at the end of the 10-day period, it has determined that another suspension is necessary. At the same time the Commission has recognized that suspension of trading in a security is a serious step, and therefore has exercised the power with restraint and has proceeded with diligence to develop the necessary facts in order that any suspension can be terminated as soon as possible. The Commission would follow that policy in administering the proposed new section 15(c)(5)." Hearings on H.R. 6789, H.R. 6793, S. 1642 before a Subcommittee of the House Committee on Interstate and Foreign Commerce 88th Cong., 1st Sess., 219 (1963).
10
The Senate Committee on Banking and Currency, when it reported on the proposed 1964 amendments to the Act, indicated that it understood and did not disapprove of the Commission's practice. It stated:
"The Commission has consistently construed section 19(a)(4) as permitting it to issue more than one suspension if, upon reexamination at the end of the 10-day period, it determines that another suspension is necessary. The committee accepts this interpretation. At the same time the committee recognizes that suspension of trading in a security is a drastic § ep and that prolonged suspension of trading may impose considerable hardship on stockholders. The committee therefore expects that the Commission will exercise this power with restraint and will proceed with all diligence to develop the necessary facts in order that any suspension can be terminated as soon as possible." S.Rep.No.379, 88th Cong., 1st Sess., 66-67 (1963).
11
The purpose of the 1964 amendments was merely to grant the Commission the same power to summarily deal with securities traded in the over-the-counter market as it already had to deal with securities traded on national exchanges. The purpose of the 1975 amendments was simply to consolidate into one section the power formerly contained in two.
12
Under the new provision, when the Commission suspends or revokes the registration of a security, "[no] . . . broker, or dealer shall make use of the mails or any means or instrumentality of interstate commerce to effect any transaction in, or to induce the purchase or sale of, any security the registration of which has been and is suspended or revoked pursuant to the preceding sentence." 15 U.S.C. § 78l (j) (1976 ed.).
1
The only document made public by the SEC at the time it suspends trading in a security is a "Notice of Suspension of Trading." Numerous copies of this notice are included in the Appendix and each contains only the boilerplate explanation:
"It appearing to the Securities and Exchange Commission that the summary suspension of trading in such securities on such exchange and otherwise than on a national securities exchange is required in the public interest and for the protection of investors; [therefore, trading is suspended]."
See App. 11, 13, 16, 19, 21, 23, 25, 27, 30, 33, 36, 39, 41, 44, 47, 50, 53, 56, 59, 62, 65, 67, 69, 71, 73, 76, 79, 82, 85, 88, 91, 94, 97, 100, 103, 106. The sole exception to this monotonous pattern is the notice which issued after respondent lodged his verified petition with the SEC. That notice recounted the allegations of the petition and stated in some detail why it was necessary to continue the suspension of Canadian Javelin stock. See id., at 109-110.
2
In each instance, the explanation consists only of memoranda from the SEC's Division of Enforcement to the Commission. See, e. g., id., at 12, 14, 15. In at least one instance, the memorandum postdates the public notice of suspension. Compare id., at 11 with id., at 12. In no case is there a memorandum from the Commission explaining its action. The Court apparently assumes that the memoranda of the Division of Enforcement adequately explain the Commission's action, although the basis for any such assumption is not apparent. Moreover, since the recommendations portion of each memoranda is excised, presumably as permitted (but not required) by Exemption 5 of the Freedom of Information Act, see EPA v. Mink, 410 U.S. 73, 89, 93 S.Ct. 827, 836, 35 L.Ed.2d 119 (1973), there is no statement of reasons in any traditional sense in any of the memoranda.
3
See Brief for Respondent 19; App. to Brief for Respondent 20a-21a.
| 78
|
436 U.S. 49
98 S.Ct. 1670
56 L.Ed.2d 106
SANTA CLARA PUEBLO et al., Petitioners,v.Julia MARTINEZ et al.
No. 76-682.
Argued Nov. 29, 1977.
Decided May 15, 1978.
Syllabus
Respondents, a female member of the Santa Clara Pueblo and her daughter, brought this action for declaratory and injunctive relief against petitioners, the Pueblo and its Governor, alleging that a Pueblo ordinance that denies tribal membership to the children of female members who marry outside the tribe, but not to similarly situated children of men of that tribe, violates Title I of the Indian Civil Rights Act of 1968 (ICRA), 25 U.S.C. §§ 1301-1303, which in relevant part provides that "[n]o Indian tribe in exercising powers of self-government shall . . . deny to any person within its jurisdiction the equal protection of its laws." 25 U.S.C. § 1302(8). The ICRA's only express remedial provision, 25 U.S.C. § 1303, extends the writ of habeas corpus to any person, in a federal court, "to test the legality of his detention by order of an Indian tribe." The District Court held that jurisdiction was conferred by 28 U.S.C. § 1343(4) and 25 U.S.C. § 1302(8), apparently concluding that the substantive provisions of Title I impliedly authorized civil actions for declaratory and injunctive relief, and also that the tribe was not immune from such a suit. Subsequently, the court found for petitioners on the merits. The Court of Appeals, while agreeing on the jurisdictional issue, reversed on the merits. Held:
1. Suits against the tribe under the ICRA are barred by the tribe's sovereign immunity from suit, since nothing on the face of the ICRA purports to subject tribes to the jurisdiction of federal courts in civil actions for declaratory or injunctive relief. Pp. 58-59.
2. Nor does § 1302 impliedly authorize a private cause of action for declaratory and injunctive relief against the Pueblo's Governor. Congress' failure to provide remedies other than habeas corpus for enforcement of the ICRA was deliberate, as is manifest from the structure of the statutory scheme and the legislative history of Title I. Pp. 59-72.
(a) Congress was committed to the goal of tribal self-determination, as is evidenced by the provisions of Title I itself. Section 1302 selectively incorporated and in some instances modified the safeguards of the Bill of Rights to fit the unique needs of tribal governments, and other parts of the ICRA similarly manifest a congressional purpose to protect tribal sovereignty from undue interference. Creation of a federal cause of action for the enforcement of § 1302 rights would not comport with the congressional goal of protecting tribal self-government. Pp. 62-65.
(b) Tribal courts, which have repeatedly been recognized as appropriate forums for adjudicating disputes involving important interes § of both Indians and non-Indians, are available to vindicate rights created by the ICRA. Pp. 65-66.
(c) After considering numerous alternatives for review of tribal criminal convictions, Congress apparently decided that review by way of habeas corpus would adequately protect the individual interests at stake while avoiding unnecessary intrusions on tribal governments. Similarly, Congress considered and rejected proposals for federal review of alleged violations of the ICRA arising in a civil context. It is thus clear that only the limited review mechanism of § 1303 was contemplated. Pp. 66-70.
(d) By not exposing tribal officials to the full array of federal remedies available to redress actions of federal and state officials, Congress may also have considered that resolution of statutory issues under § 1302, and particularly those issues likely to arise in a civil context, will frequently depend on questions of tribal tradition and custom that tribal forums may be in a better position to evaluate than federal courts. Pp. 71-72.
10th Cir., 540 F.2d 1039, reversed.
Marcelino Prelo, Jr., Albuquerque, N. M., for petitioners.
Richard B. Collins, Window Rock, Ariz., for respondents.
Mr. Justice MARSHALL delivered the opinion of the Court.*
1
This case requires us to decide whether a federal court may pass on the validity of an Indian tribe's ordinance denying membership to the children of certain female tribal members.
2
Petitioner Santa Clara Pueblo is an Indian tribe that has been in existence for over 600 years. Respondents, a female member of the tribe and her daughter, brought suit in federal court against the tribe and its Governor, petitioner Lucario Padilla, seeking declaratory and injunctive relief against enforcement of a tribal ordinance denying membership in the tribe to children of female members who marry outside the tribe, while extending membership to children of male members who marry outside the tribe. Respondents claimed that this rule discriminates on the basis of both sex and ancestry in violation of Title I of the Indian Civil Rights Act of 1968 (ICRA), 25 U.S.C. §§ 1301-1303, which provides in relevant part that "[n]o Indian tribe in exercising powers of self-government shall . . . deny to any person within its jurisdiction the equal protection of its laws." § 1302(8).1
3
Title I of the ICRA does not expressly authorize the bringing of civil actions for declaratory or injunctive relief to enforce its substantive provisions. The threshold issue in this case is thus whether the Act may be interpreted to impliedly authorize such actions, against a tribe or its officers in the federal courts. For the reasons set forth below, we hold that the Act cannot be so read.
4
* Respondent Julia Martinez is a fullblooded member of the Santa Clara Pueblo, and resides on the Santa Clara Reservation in Northern New Mexico. In 1941 she married a Navajo Indian with whom she has since had several children, including respondent Audrey Martinez. Two years before this marriage, the Pueblo passed the membership ordinance here at issue, which bars admission of the Martinez children to the tribe because their father is not a Santa Claran.2 Although the children were raised on the reservation and continue to reside there now that they are adults, as a result of their exclusion from membership they may not vote in tribal elections or hold secular office in the tribe; moreover, they have no right to remain on the reservation in the event of their mother's death, or to inherit their mother's home or her possessory interests in the communal lands.
5
After unsuccessful efforts to persuade the tribe to change the membership rule, respondents filed this lawsuit in the United States District Court for the District of New Mexico, on behalf of themselves and others similarly situated.3 Petitioners moved to dismiss the complaint on the ground that the court lacked jurisdiction to decide intratribal controversies affecting matters of tribal self-government and sovereignty. The District Court rejected petitioners' contention, finding that jurisdiction was conferred by 28 U.S.C. § 1343(4) and 25 U.S.C. § 1302(8). The court apparently concluded, first, that the substantive provisions of Title I impliedly authorized civil actions for declaratory and injunctive relief, and second, that the tribe was not immune from such suit.4 Accordingly, the motion to dismiss was denied. 402 F.Supp. 5 (1975).
6
Following a full trial, the District Court found for petitioners on the merits. While acknowledging the relatively recent origin of the disputed rule, the District Court nevertheless found it to reflect traditional values of patriarchy still significant in tribal life. The court recognized the vital importance of respondents' interests,5 but also determined that membership rules were "no more or less than a mechanism of social . . . self-definition," and as such were basic to the tribe's survival as a cultural a d economic entity. Id., at 15.6 In sustaining the ordinance's validity under the "equal protection clause" of the ICRA, 25 U.S.C. § 1302(8), the District Court concluded that the balance to be struck between these competing interests was better left to the judgment of the Pueblo:
7
"[T]he equal protection guarantee of the Indian Civil Rights Act should not be construed in a manner which would require or authorize this Court to determine which traditional values will promote cultural survival and should therefore be preserved . . . . Such a determination should be made by the people of Santa Clara; not only because they can best decide what values are important, but also because they must live with the decision every day. . . .
8
". . . To abrogate tribal decisions, particularly in the delicate area of membership, for whatever 'good' reasons, is to destroy cultural identity under the guise of saving it." 402 F.Supp., at 18-19.
9
On respondents' appeal, the Court of Appeals for the Tenth Circuit upheld the District Court's determination that 28 U.S.C. § 1343(4) provides a jurisdictional basis for actions under Title I of the ICRA. 540 F.2d 1039, 1042 (1976). It found that "since [the ICRA] was designed to provide protection against tribal authority, the intention of Congress to allow suits against the tribe was an essential aspect [of the ICRA]. Otherwise, it would constitute a mere unenforceable declaration of principles." Ibid. The Court of Appeals disagreed, however, with the District Court's ruling on the merits. While recognizing that standards of analysis developed under the Fourteenth Amendment's Equal Protection Clause were not necessarily controlling in the interpretation of this statute, the Court of Appeals apparently concluded that because the classification was one based upon sex it was presumptively invidious and could be sustained only if justified by a compelling tribal interest. See id., at 1047-1048. Because of the ordinance's recent vintage, and because in the court's view the rule did not rationally identify those persons who were emotionally and culturally Santa Clarans, the court held that the tribe's interest in the ordinance was not substantial enough to justify its discriminatory effect. Ibid.
10
We granted certiorari, 431 U.S. 913, 97 S.Ct. 2172, 53 L.Ed.2d 223 (1977), and we now reverse.
II
11
Indian tribes are "distinct, independent political communities, retaining their original natural rights" in matters of local self-government. Worcester v. Georgia, 6 Pet. 515, 559, 8 L.Ed. 483 (1832); see United States v. Mazurie, 419 U.S. 544, 557, 95 S.Ct. 710, 717, 42 L.Ed.2d 706 (1975); F. Cohen, Handbook of Federal Indian Law 122-123 (1945). Although no longer "possessed of the full attributes of sovereignty," they remain a "separate people, with the power of regulating their internal and social relations." United States v. Kagama, 118 U.S. 375, 381-382, 6 S.Ct. 1109, 1112-1113, 30 L.Ed. 228 (1886). See United States v. Wheeler, 435 U.S. 313, 98 S.Ct. 1079, 55 L.Ed.2d 303 (1978). They have power to make their own substantive law in internal matters, see Roff v. Burney, 168 U.S. 218, 18 S.Ct. 60, 42 L.Ed. 442 (1897) (membership)s Jones v. Meehan, 175 U.S. 1, 29, 20 S.Ct. 1, 12, 44 L.Ed. 49 (1899) (inheritance rules); United States v. Quiver, 241 U.S. 602, 36 S.Ct. 699, 60 L.Ed. 1176 (1916) (domestic relations), and to enforce that law in their own forums, see e. g., Williams v. Lee, 358 U.S. 217, 79 S.Ct. 269, 3 L.Ed.2d 251 (1959).
12
As separate sovereigns pre-existing the Constitution, tribes have historically been regarded as unconstrained by those constitutional provisions framed specifically as limitations on federal or state authority. Thus, inTalton v. Mayes, 163 U.S. 376, 16 S.Ct. 986, 41 L.Ed. 196 (1896), this Court held that the Fifth Amendment did not "operat[e] upon" "the powers of local self-government enjoyed" by the tribes. Id., at 384, 16 S.Ct. at 989. In ensuing years the lower federal courts have extended the holding of Talton to other provisions of the Bill of Rights, as well as to the Fourteenth Amendment.7
13
As the Court in Talton recognized, however, Congress has plenary authority to limit, modify or eliminate the powers of local self-government which the tribes otherwise possess. Ibid. See, e. g., United States v. Kagama, supra, 118 U.S., at 379-381, 383-384, 6 S.Ct., at 1111-1112, 1113-1114; Cherokee Nation v. Hitchcock, 187 U.S. 294, 305-307, 23 S.Ct. 115, 119, 47 L.Ed. 183 (1902). Title I of the ICRA, 25 U.S.C. §§ 1301-1303, represents an exercise of that authority. In 25 U.S.C. § 1302, Congress acted to modify the effect of Talton and its progeny by imposing certain restrictions upon tribal governments similar, but not identical, to those contained in the Bill of Rights and the Fourteenth Amendment.8 In 25 U.S.C. § 1303, the only remedial provision expressly supplied by Congress, the "privilege of the writ of habeas corpus" is made "available to any person, in a court of the United States, to test the legality of his detention by order of an Indian tribe."
14
Petitioners concede that § 1302 modifies the substantive law applicable to the tribe; they urge, however, that Congress did not intend to authorize federal courts to review violations of its provisions except as they might arise on habeas corpus. They argue, further, that Congress did not waive the tribe's sovereign immunity from suit. Respondents, on the other hand, contend that § 1302 not only modifies the substantive law applicable to the exercise of sovereign tribal powers, but also authorizes civil suits for equitable relief against the tribe and its officers in federal courts. We consider these contentions first with respect to the tribe.
III
15
Indian tribes have long been recognized as possessing the common-law immunity from suit traditionally enjoyed by sovereign powers. Turner v. United States, 248 U.S. 354, 358, 39 S.Ct. 109, 110, 63 L.Ed. 291 (1919); United States v. United States Fidelity & Guaranty Co., 309 U.S. 506, 512-513, 60 S.Ct. 653, 656, 84 L.Ed. 894 (1940); Puyallup Tribe, Inc. v. Washington Dept. of Game, 433 U.S. 165, 172-173, 97 S.Ct. 2616, 2620-2621, 53 L.Ed.2d 667 (1977). This aspect of tribal sovereignty, like all others, is subject to the superior and plenary control of Congress. But "without congressional authorization," the "Indian Nations are exempt from suit." United States v. United States Fidelity & Guaranty Co., supra, 309 U.S., at 512, 60 S.Ct. at 656.
16
It is settled that a waiver of sovereign immunity " 'cannot be implied but must be unequivocally expressed.' " United States v. Testan, 424 U.S. 392, 399, 96 S.Ct. 948, 953, 47 L.Ed.2d 114 (1976), quoting, United States v. King, 395 U.S. 1, 4, 89 S.Ct. 1501, 1502, 23 L.Ed.2d 52 (1969). Nothing on the face of Title I of the ICRA purports to subject tribes to the jurisdiction of the federal courts in civil actions for injunctive or declaratory relief. Moreover, since the respondent in a habeas corpus action is the individual custodian of the prisoner, see, e. g., 28 U.S.C. § 2243, the provisions of § 1303 can hardly be read as a general waiver of the tribe's sovereign immunity. In the absence here of any unequivocal expression of contrary legislative intent, we conclude that suits against the tribe under the ICRA are barred by its sovereign immunity from suit.
IV
17
As an officer of the Pueblo, petitioner Lucario Padilla is not protected by the tribe's immunity from suit. See Puyallup Tribe, Inc. v. Washington Dept. of Game, supra, 433 U.S., at 171-172, 97 S.Ct., at 2620-2621; cf. Ex parte Young, 209 U.S. 123, 28 S.Ct. 441, 52 L.Ed. 714 (1908). We must therefore determine whether the cause of action for declaratory and inj nctive relief asserted here by respondents, though not expressly authorized by the statute, is nonetheless implicit in its terms.
18
In addressing this inquiry, we must bear in mind that providing a federal forum for issues arising under § 1302 constitutes an interference with tribal autonomy and self-government beyond that created by the change in substantive law itself. Even in matters involving commercial and domestic relations, we have recognized that "subject[ing] a dispute arising on the reservation among reservation Indians to a forum other than the one they have established for themselves," Fisher v. District Court, 424 U.S. 382, 387-388, 96 S.Ct. 943, 947, 47 L.Ed.2d 106 (1976), may "undermine the authority of the tribal cour[T] . . . AND HENCE . . . iNfringe on the right of the indians to govern themselves." Williams v. Lee, 358 U.S., at 223, 79 S.Ct., at 272.9 A fortiori, resolution in a foreign forum of intratribal disputes of a more "public" character, such as the one in this case, cannot help but unsettle a tribal government's ability to maintain authority. Although Congress clearly has power to authorize civil actions against tribal officers, and has done so with respect to habeas corpus relief in § 1303, a proper respect both for tribal sovereignty itself and for the plenary authority of Congress in this area cautions that we tread lightly in the absence of clear indications of legislative intent. Cf. Antoine v. Washington, 420 U.S. 194, 199-200, 95 S.Ct. 944, 948, 43 L.Ed.2d 129 (1975); Choate v. Trapp, 224 U.S. 665, 675, 32 S.Ct. 565, 569, 56 L.Ed. 941 (1912).
19
With these considerations of "Indian sovereignty . . . [as] a backdrop against which the applicable . . . federal statut[e] must be read," McClanahan v. Arizona State Tax Comm'n, 411 U.S. 164, 172, 93 S.Ct. 1257, 1262, 36 L.Ed.2d 129 (1973), we turn now to those factors of more general relevance in determining whether a cause of action is implicit in a statute not expressly providing one. See Cort v. Ash, 422 U.S. 66, 95 S.Ct. 2080, 45 L.Ed.2d 26 (1975).10 We note at the outset that acentral purpose of the ICRA and in particular of Title I was to "secur[e] for the American Indian the broad constitutional rights afforded to other Americans," and thereby to "protect individual Indians from arbitrary and unjust actions of tribal governments." S.Rep. No. 841, 90th Cong., 1st Sess., 5-6 (1967). There is thus no doubt that respondents, American Indians living on the Santa Clara Reservation, are among the class for whose especial benefit this legislation was enacted. Texas & Pacific R. Co. v. Rigsby, 241 U.S. 33, 39, 36 S.Ct. 482, 484, 60 L.Ed. 874 (1916); see Cort v. Ash, supra, 422 U.S., at 78, 95 S.Ct., at 2087. Moreover, we have freq ently recognized the propriety of inferring a federal cause of action for the enforcement of civil rights, even when Congress has spoken in purely declarative terms. See, e. g., Jones v. Alfred H. Mayer Co., 392 U.S. 409, 414 n. 13, 88 S.Ct. 2186, 2189, 20 L.Ed.2d 1189 (1968); Sullivan v. Little Hunting Park, Inc., 396 U.S. 229, 238-240, 90 S.Ct. 400, 405-406, 24 L.Ed.2d 386 (1969). See also Bivens v. Six Unknown Fed. Narcotics Agents, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971). These precedents, however, are simply not dispositive here. Not only are we unpersuaded that a judicially sanctioned intrusion into tribal sovereignty is required to fulfill the purposes of the ICRA, but to the contrary, the structure of the statutory scheme and the legislative history of Title I suggest that Congress' failure to provide remedies other than habeas corpus was a deliberate one. See National Railroad Passenger Corp. v. Na- tional Assn. of Railroad Passengers, 414 U.S. 453, 94 S.Ct. 690, 38 L.Ed.2d 646 (1974); Cort v. Ash, supra.
20
Two distinct and competing purposes are manifest in the provisions of the ICRA: In addition to its objective of strengthening the position of individual tribal members vis-a-vis the tribe, Congress also intended to promote the well-established federal "policy of furthering Indian self-government." Morton v. Mancari, 417 U.S. 535, 551, 94 S.Ct. 2474, 2483, 41 L.Ed.2d 290 (1974); see Fisher v. District Court, 424 U.S., at 391, 96 S.Ct. at 948.11 This commitment to the goal of tribal self-determination is demonstrated by the provisions of Title I itself. Section 1302, rather than providing in wholesale fashion for the extension of constitutional requirements to tribal governments, as had been initially proposed,12 selectively incorporated and in some instances modified the safeguards of the Bill of Rights to fit the unique political, cultural, and economic needs of tribal governments.13 See n. 8, supra. Thus, for example, the statute does not prohibit the establishment of religion, nor does it require jury trials in civil cases, or appointment of counsel for indigents in criminal cases, cf. Argersinger v. Hamlin, 407 U.S. 25, 92 S.Ct. 2006, 32 L.Ed.2d 530 (1972).14
21
The other Titles of the ICRA also manifest a congressional purpose to protect tribal sovereignty from undue interference. For instance, Title III, 25 U.S.C. §§ 1321-1326, hailed by some of the ICRA's supporters as the most important part of the Act,15 provides that States may not assume civil or criminal jurisdiction over "Indian country" without the prior consent of the tribe, thereby abrogating prior law to the contrary.16 Other Titles of the ICRA provide for strengthening certain tribal courts through training of Indian judges,17 and for minimizing interference by the Federal Bureau of Indian Affairs in tribal litigation.18
22
Where Congress seeks to promote dual objectives in a single statute, courts must be more than usually hesitant to infer from its silence a cause of action that, while serving one legislative purpose, will disserve the other. Creation of a federal cause of action for the enforcement of rights created in Title I, however useful it might be in securing compliance with § 1302, plainly would be at odds with the congressional goal of protecting tribal self-government. Not only would it undermine the authority of tribal forums, see supra, at 59-60, but it would also impose serious financial burdens on already "financially disadvantaged" tribes. Subcommittee on Constitutional Rights, Senate Judiciary Committee, Constitutional Rights of the American Indian: Summary Report of Hearings and Investigations Pursuant to S.Res. 194, 89th Cong., 2d Sess., 12 (Comm. Print 1966) (hereinafter cited as Summary Report).19
23
Moreover, contrary to the reasoning of the court below, implication of a federal remedy in addition to habeas corpus is not plainly required to give effect to Congress' objective of extending constitutional norms to tribal self-government. Tribal forums are available to vindicate rights created by the ICRA, and § 1302 has the substantial and intended effect of changing the law which these forums are obliged to apply.20 Tribal courts have repeatedly been recognized as appropriate forums for the exclusive adjudication of disputes affecting important personal and property interests of both Indians and non-Indians.21 See, e. g., Fisher v. District Court, 424 U.S. 382, 96 S.Ct. 943, 47 L.Ed.2d 106 (1976); Williams v. Lee, 358 U.S. 217, 79 S.Ct. 269, 3 L.Ed.2d 251 (1959). See also Ex parte Crow Dog, 109 U.S. 556, 3 S.Ct. 396, 27 L.Ed. 1030 (1883). Nonjudicial tribal institutions have also been recognized as competent law-applying bodies. See United States v. Mazurie, 419 U.S. 544, 95 S.Ct. 710, 42 L.Ed.2d 706 (1975).22 Under these circumstances, we are reluctant to disturb the balance between the dual statutory objectives which Congress apparently struck in providing only for habeas corpus relief.
B
24
Our reluctance is strongly reinforced by the specific legislative history underlying 25 U.S.C. § 1303. This history, extending over more than three years,23 indicates that Congress' provision for habeas corpus relief, and nothing more, reflected a considered accommodation of the competing goals of "preventing injustices perpetrated by tribal governments, on the one hand, and, on the other, avoiding undue or precipitous interference in the affairs of the Indian people." Summary Report 11.
25
In settling on habeas corpus as the exclusive means for federal-court review of tribal criminal proceedings, Congress opted for a less intrusive review mechanism than had been initially proposed. Originally, the legislation would have authorized de novo review in federal court of all convictions obtained in tribal courts.24 At hearings held on the proposed legislation in 1965, however, it became clear that even those in agreement with the general thrust of the review provision—to provide some form of judicial review of criminal proceedings in tribal courts—believed that de novo review would impose unmanageable financial burdens on tribal governments and needlessly displace tribal courts. See id., at 12; 1965 Hearings 22-23, 157, 162, 341-342. Moreover, tribal representatives argued that de novo review would "deprive the tribal court of all jurisdiction in the event of an appeal, thus having a harmful effect upon law enforcement within the reservation," and urged instead that "decisions of tribal courts . . . be reviewed in the U.S. district courts upon petition for a writ of habeas corpus." Id., at 79. After considering numerous alternatives for review of tribal convictions, Congress apparently decided that review by way of habeas corpus would adequately protect the individual interests at stake while avoiding unnecessary intrusions on tribal governments.
26
Similarly, and of more direct import to the issue in this case, Congress considered and rejected proposals for federal review of alleged violations of the Act arising in a civil context. As initially introduced, the Act would have required the Attorney General to "receive and investigate" complaints relating to deprivations of an Indian's statutory or constitutional rights, and to bring "such criminal or other action as he deems appropriate to vindicate and secure such right to such Indian."25 Notwithstanding the screening effect this proposal would have had on frivolous or vexatious lawsuits, it was bitterly opposed by several tribes. The Crow Tribe representative stated:
27
"This [bill] would in effect subject the tribal sovereignty of self-government to the Federal government. . . . [B]y its broad terms [it] would allow the Attorney General to bring any kind of action as he deems appropriate. By this bill, any time a member of the tribe would not be satisfied with an action by the [tribal] council, it would allow them [sic ] to file a complaint with the Attorney General and subject the tribe to a multitude of investigations and threat of court action." 1965 Hearings 235 (statement of Mr. Real Bird).
28
In a similar vein, the Mescalero Apache Tribal Council argued that "[i]f the perpetually dissatisfied individual Indian were to be armed with legislation such as proposed in [this bill] he could disrupt the whole of a tribal government." Id., at 343. In response, this provision for suit by the Attorney General was completely eliminated from the ICRA. At the same time, Congress rejected a substitute proposed by the Interior Department that would have authorized the Department to adjudicate civil complaints concerning tribal actions, with review in the district courts available from final decisions of the agency.26
29
Given this history, it is highly unlikely that Congress would have intended a private cause of action for injunctive and declaratory relief to be available in the federal courts to secure enforcement of § 1302. Although the only Committee Report on the ICRA in its final form, S.Rep. No. 841, 90th Cong., 1st Sess. (1967), sheds little additional light on this question, it would hardly support a contrary conclusion.27 Indeed its description of the purpose of Title I,28 as well as the floor debates on the bill,29 indicates that the ICRA was generally understood to authorize federal judicial review of tribal actions only through the habeas corpus provisions of § 1303.30 These factors, together with Congress' rejection of proposals that clearly would have authorized causes of action other than habeas corpus, persuade us that Congress, aware of the intrusive effect of federal judicial review upon tribal self-government, intended to create only a limited mechanism for such review, namely, that provided for expressly in § 1303.
V
30
As the bill's chief sponsor, Senator Ervin,31 commented in urging its passage, the ICRA "should not be considered as the final solution to the many serious constitutional problems con ronting the American Indian." 113 Cong.Rec. 13473 (1967). Although Congress explored the extent to which tribes were adhering to constitutional norms in both civil and criminal contexts, its legislative investigation revealed that the most serious abuses of tribal power had occurred in the administration of criminal justice. See ibid., quoting Summary Report 24. In light of this finding, and given Congress' desire not to intrude needlessly on tribal self-government, it is not surprising that Congress chose at this stage to provide for federal review only in habeas corpus proceedings.
31
By not exposing tribal officials to the full array of federal remedies available to redress actions of federal and state officials, Congress may also have considered that resolution of statutory issues under § 1302, and particularly those issues likely to arise in a civil context, will frequently depend on questions of tribal tradition and custom which tribal forums may be in a better position to evaluate than federal courts. Our relations with the Indian tribes have "always been . . . anomalous . . . and of a complex character." United States v. Kagama, 118 U.S., at 381, 6 S.Ct., at 1112. Although we early rejected the notion that Indian tribes are "foreign states" for jurisdictional purposes under Art. III, Cherokee Nation v. Georgia, 5 Pet. 1, 8 L.Ed. 25 (1831), we have also recognized that the tribes remain quasi-sovereign nations which, by government structure, culture, and source of sovereignty are in many ways foreign to the constitutional institutions of the federal and state governments. See Elk v. Wilkins, 112 U.S. 94, 5 S.Ct. 41, 28 L.Ed. 643 (1884). As is suggested by the District Court's opinion in this case, see supra, at 54, efforts by the federal judiciary to apply the statutory prohibitions of § 1302 in a civil context may substantially interfere with a tribe's ability to maintain itself as a culturally and politically distinct entity.32
32
As we have repeatedly emphasized, Congress' authority over Indian matters is extraordinarily broad, and the role of courts in adjusting relations between and among tribes and their members correspondingly restrained. See Lone Wolf v. Hitchcock, 187 U.S. 553, 565, 23 S.Ct. 216, 221, 47 L.Ed. 299 (1903). Congress retains authority expressly to authorize civil actions for injunctive or other relief to redress violations of § 1302, in the event that the tribes themselves prove deficient in applying and enforcing its substantive provisions. But unless and until Congress makes clear its intention to permit the additional intrusion on tribal sovereignty that adjudication of such actions in a federal forum would represent, we are constrained to find that § 1302 does not impliedly authorize actions for declaratory or injunctive relief against either the tribe or its officers.
33
The judgment of the Court of Appeals, is, accordingly,
34
Reversed.
35
Mr. Justice BLACKMUN took no part in the consideration or decision of this case.
36
Mr. Justice WHITE, dissenting.
37
The declared purpose of the Indian Civil Rights Act of 1968 (ICRA or Act), 25 U.S.C. §§ 1301-1341, is "to insure that the American Indian is afforded the broad constitutional rights secured to other Americans." S.Rep. No. 841, 90th Cong., 1st Sess., 6 (1967) (hereinafter Senate Report). The Court today, by denying a federal forum to Indians who allege that their rights under the ICRA have been denied by their tribes, substantially undermines the goal of the ICRA and in particular frustrates Title I's1 purpose of "protect[ing] individual Indians from arbitrary and unjust actions of tribal governments." Ibid. Because I believe that implicit within Title I's declaration of constitutional rights is the authorization for an individual Indian to bring a civil action in federal court against tribal officials2 for declaratory and injunctive relief to enforce those provisions, I dissent.
38
Under 28 U.S.C. § 1343(4), federal district courts have jurisdiction over "any civil action authorized by law to be commenced by any person . . . [t]o recover damages or to secure equitable or other relief under any Act of Congress providing for the protection of civil rights, including the right to vote." Because the ICRA is unquestionably a federal Act "providing for the protection of civil rights," the necessary inquiry is whether the Act authorizes the commencement of a civil action for such relief.
39
The Court noted in Bell v. Hood, 327 U.S. 678, 684, 66 S.Ct. 773, 777, 90 L.Ed. 939 (1946) (footnote omitted), that "where federally protected rights have been invaded, it has been the rule from the beginning that courts will be alert to adjust their remedies so as to grant the necessary relief." The fact that a statute is merely declarative and does not expressly provide for a cause of action to enforce its terms "does not, of course, prevent a federal court from fashioning an effective equitable remedy," Jones v. Alfred H. Mayer Co., 392 U.S. 409, 414 n. 13, 88 S.Ct. 2186, 2190, 20 L.Ed.2d 1189 (1968), for "[t]he existence of a statutory right implies the existence of all necessary and appropriate remedies." Sullivan v. Little Hunting Park, Inc., 396 U.S. 229, 239, 90 S.Ct. 400, 405, 24 L.Ed.2d 386 (1969). We have previously identified the factors that are relevant in determining whether a private remedy is implicit in a statute not expressly providing one: whether the plaintiff is one of the class for whose especial benefit the statute was enacted; whether there is any indication of legislative intent either to create a remedy or to deny one; whether such a remedy is consistent with the underlying purposes of the statute; and whether the cause of action is one traditionally relegated to state law. Cort v. Ash, 422 U.S. 66, 78, 95 S.Ct. 2080, 2087, 45 L.Ed.2d 26 (1975). Application of these factors in the present context indicates that a private cause of action under Title I of the ICRA should be inferred.
40
As the majority readily concedes, "respondents, American Indians living on the Santa Clara reservation, are among the class for whose especial benefit this legislation was enacted." Ante, at 61. In spite of this recognition of the congressional intent to provide these particular respondents with the guarantee of equal protection of the laws, the Court denies them access to the federal courts to enforce this right because it concludes that Congress intended habeas corpus to be the exclusive remedy under Title I. My reading of the statute and the legislative history convinces me that Congress did not intend to deny a private cause of action to enforce the rights granted under § 1302.
41
The ICRA itself gives no indication that the constitutional rights it extends to American Indians are to be enforced only by means of federal habeas corpus actions. On the con rary, since several of the specified rights are most frequently invoked in noncustodial situations,3 the natural assumption is that some remedy other than habeas corpus must be contemplated. This assumption is not dispelled by the fact that the Congress chose to enumerate specifically the rights granted under § 1302, rather than to state broadly, as was originally proposed, that "any Indian tribe in exercising its powers of local self-government shall be subject to the same limitations and restraints as those which are imposed on the Government of the United States by the United States Constitution." S. 961, 89th Cong., 1st Sess. (1965). The legislative history reflects that the decision "to indicate in more specific terms the constitutional protections the American Indian possesses in relation to his tribe," was made in recognition of the "peculiarities of the Indian's economic and social condition, his customs, his beliefs, and his attitudes . . . ." Subcommittee on Constitutional Rights of the Senate Committee on the Judiciary, Constitutional Rights of the American Indian: Summary Report of Hearings and Investigations pursuant to S.Res.194, 89th Cong., 2d Sess., 25, 9 (Comm. Print 1966) (hereinafter Summary Report). While I believe that the uniqueness of the Indian culture must be taken into consideration in applying the constitutional rights granted in § 1302, I do not think that it requires insulation of official tribal actions from federal-court scrutiny. Nor do I find any indication that Congress so intended.
42
The inferences that the majority draws from various changes Congress made in the originally proposed legislation are to my mind unsupported by the legislative history. The first change the Court points to is the substitution of a habeas corpus provision for S. 962's provision of de novo federal-court review of tribal criminal proceedings. See ante, at 67. This change, restricted in its concern to the criminal context, is of limited relevance to the question whether Congress intended a private cause of action to enforce rights arising in a civil context. Moreover, the reasons this change was made are not inconsistent with the recognition of such a cause of action. The Summary Report explains that the change in S. 962 was made only because of displeasure with the degree of intrusion permitted by the original provision:
43
"No one appearing before the subcommittee or submitting testimony for the subcommittee's consideration opposed the provision of some type of appeal from the decisions of tribal courts. Criticism of S. 962, however, was directed at the bill's use of a trial de novo in a U.S. district court as the appropriate means of securing appellate review. . . .
44
* * * * *
45
"There was considerable support for the suggestion that the district court, instead of reviewing tribal court decisions on a de novo basis, be authorized only to decide whether the accused was deprived of a constitutional right. If no deprivation were found, the tribal court decision would stand. If, on the other hand, the district court determined that an accused had suffered a denial of his rights at the hands of the tribal court, the case would be remanded with instructions for dismissal or retrial, as the district court might decide." Summary Report 12-13 (footnote omitted).
46
The degree of intrusion permitted by a private cause of action to enforce the civil provisions of § 1302 would be no greater than that permitted in a habeas corpus proceeding. The federal district court's duty would be limited to determining whether the challenged tribal action violated one of the enumerated rights. If found to be in violation, the action would be invalidated; if not, it would be allowed to stand. In no event would the court be authorized, as in a de novo review proceeding, to substitute its judgment concerning the wisdom of the action taken for that of the tribal authorities.
47
Nor am I persuaded that Congress, by rejecting various proposals for administrative review of alleged violations of Indian rights, indicated its rejection of federal judicial review of such violations. As the majority notes, the original version of the Act provided for investigation by the Attorney General of "any written complaint filed with him by any Indian . . . alleging that such Indian has been deprived of a right conferred upon citizens of the United States by the laws and Constitution of the United States." S. 963, 89th Cong., 1st Sess. (1965). The bill would have authorized the Attorney General to bring whatever action he deemed appropriate to vindicate such right. Although it is true that this provision was eliminated from the final version of the ICRA, the inference the majority seeks to draw from this fact is unwarranted.
48
It should first be noted that the focus of S. 963 was in large part aimed at nontribal deprivations of Indian rights. In explaining the need for the bill, the Subcommittee stated that it had received complaints of deprivations of Indians' constitutional rights in the following contexts, only two of which concern tribal actions: "[I]llegal detention of reservation Indians by State and tribal officials; arbitrary decisionmaking by the Bureau of Indian Affairs; denial of various State welfare services to Indians living off the reservations; discrimination by government officials in health services; mistreatment and brutality against Indians by State and tribal law enforcement officers; and job discrimination by Federal and State agencies and private businesses." Hearings on S. 961-968 and S.J.Res. 40 before the Subcommittee on Constitutional Rights of the Senate Committee on the Judiciary, 89th Cong., 1st Sess., 8 (1965) (hereinafter 1965 Hearings). See also id., at 86 (testimony of Arthur Lazarus, Jr., General Counsel for the Association on American Indian Affairs, Inc.: "It is my understanding . . . that the complaints to be filed with the Attorney General are generally to be off-reservation violations of rights along the lines of the provisions in the Civil Rights Act"). Given this difference in focus, the elimination of this proposal has little relevance to the issue before us.
49
Furthermore, the reasons for the proposal's deletion are not as clear as the majority seems to indicate. While two witnesses did express their fears that the proposal would disrupt tribal governments, many others expressed the view that the proposals gave the Attorney General no more authority than he already possessed. Id., at 92, 104, 227, 319. The Acting Secretary of the Interior was among those who thought that this additional authorization was not needed by the Attorney General because the Department of the Interior already routinely referred complaints of Indian rights violations to him for the commencement of appropriate litigation. Id., at 319.
50
The failure of Congress to adopt the Department of the Interior's substitute provision provides even less support for the view that Congress opposed a private cause of action. This proposal would have allowed the Secretary of the Interior to review "[a]ny action, other than a criminal action, taken by an Indian tribal government which deprives any American Indian of a right or freedom established and protected by this Act . . ." and to take "such corrective action" as he deemed necessary. Id., at 318. It was proposed in tandem with a provision that would have allowed an Indian to appeal from a criminal conviction in a tribal court to the Secretary, who would then have been authorized to affirm, modify, or reverse the tribal court's decision. Most of the discussion about this joint proposal focused on the review of criminal proceedings, and several witnesses expressed objection to it because it improperly "mixed" "the judicial process . . . with the executive process." Id., at 96. See also id., at 294. Senator Ervin himself stated that he had difficulty reconciling [his] ideas of the nature of the judicial process and the notion of taking an appeal in what is supposed to be a judicial proceeding to the executive branch of the Government." Id., at 225. While the discussion of the civil part of the proposal was limited, it may be assumed that Congress was equally unreceptive to the idea of the Executive Branch's taking "corrective actions" with regard to noncriminal actions of tribal governments.
51
In sum, then, I find no positive indication in the legislative history that Congress opposed a private cause of action to enforce the rights extended to Indians under § 1302.4 The absence of any express approval of such a cause of action, of course, does not prohibit its inference, for, as we stated in Cort : "[I]n situations in which it is clear that federal law has granted a class of persons certain rights, it is not necessary to show an intention tocreate a private cause of action, although an explicit purpose to deny such cause of action would be controlling." 422 U.S., at 82, 95 S.Ct., at 2090 (footnote omitted).
52
The most important consideration, of course, is whether a private cause of action would be consistent with the underlying purposes of the Act. As noted at the outset, the Senate Report states that the purpose of the ICRA "is to insure that the American Indian is afforded the broad constitutional rights secured to other Americans." Senate Report 6. Not only is a private cause of action consistent with that purpose, it is necessary for its achievement. The legislative history indicates that Congress was concerned, not only about the Indian's lack of substantive rights, but also about the lack of remedies to enforce whatever rights the Indian might have. During its consideration of this legislation, the Senate Subcommittee pointed out that "[t]hough protected against abridgment of his rights by State or Federal action, the individual Indian is . . . without redress against his tribal authorities." Summary Report 3. It is clear that the Subcommittee's concern was not limited to the criminal context, for it explained:
53
"It is not only in the operation of tribal courts that Indians enjoy something other than full benefit of the Bill of ights. For example, a Navajo tribal council ordinance prohibiting the use of peyote resulted in an alleged abridgment of religious freedom when applied to members of the Native American Church, an Indian sect which uses the cactus plant in connection with its worship services.
54
"The opinion of the U.S. Court of Appeals for the 10th Circuit, in dismissing an action of the Native American Church against the Navajo tribal council, is instructive in pointing up the lack of remedies available to the Indian in resolving his differences with tribal officials." Id., at 3-4 (footnotes omitted).5
55
It was "[t]o remedy these various situations and thereby to safeguard the rights of Indian citizens . . . " that the legislation resulting in the ICRA was proposed. Id., at 5.
56
Several witnesses appearing before the Senate Subcommittee testified concerning deprivations of their rights by tribal authorities and their inability to gain relief. Mr. Frank Takes Gun, President of the Native American Church, for example, stated that "the Indian is without an effective means to enforce whatever constitutional rights he may have in tribal proceedings instituted to deprive him of liberty or property. While I suppose that abstractedly [sic] we might be said to enjoy [certain] rights . . ., the blunt fact is that unless the tribal court elects to confer that right upon us we have no way of securing it." 1965 Hearings 164. Miss Emily Schuler, who accompanied a former Governor of the Isleta Pueblo to the hearings, echoed these concerns. She complained that "[t]he people get governors and sometimes they get power hungry and then the people have no rights at all," to which Senator Ervin responded: " 'Power hungry' is a pretty good shorthand statement to show why the people of the United States drew up a Constitution. They wanted to compel their rulers to stay within the bounds of that Constitution and not let that hunger for power carry them outside it." Id., at 264.
57
Given Congress' concern about the deprivations of Indian rights by tribal authorities, I cannot believe, as does the majority, that it desired the enforcement of these rights to be left up to the very tribal authorities alleged to have violated them. In the case of the Santa Clara Pueblo, for example, both legislative and judicial powers are vested in the same body, the Pueblo Council. See App. 3-5. To suggest that this tribal body is the "appropriate" forum for the adjudication of alleged violations of the ICRA is to ignore both reality and Congress' desire to provide a means of redress to Indians aggrieved by their tribal leaders.6
58
Although the Senate Report's statement of the purpose of the ICRA refers only to the granting of constitutional rights to the Indians. I agree with the majority that the legislative history demonstrates that Congress was also concerned with furthering Indian self-government. I do not agree, however, that this concern on the part of congress precludes our recognition of a federal cause of action to enforce the terms of the Act. The major intrusion upon the tribe's right to govern itself occurred when Congress enacted the ICRA and mandated that the tribe "in exercising powers of self-government" observe the rights enumerated in § 1302. The extension of constitutional rights to individual citizens is intended to intrude upon the authority of government. And once it has been decided that an individual does possess certain rights vis-a-vis his government, it necessarily follows that he has some way to enforce those rights. Although creating a federal cause of action may "constitut[e] an interference with tribal autonomy and self-government beyond that created by the change in substantive law itself," ante, at 59, in my mind it is a further step that must be taken; otherwise, the change in the law may be meaningless.
59
The final consideration suggested in Cort is the appropriateness of a federal forum to vindicate the right in question. As even the majority acknowledges, "we have frequently recognized the propriety of inferring a federal cause of action for the enforcement of civil rights . . . ." Ante, at 61. For the reasons set out above, I would make no exception here.
60
Because I believe that respondents stated a cause of action over which the federal courts have jurisdiction, I would proceed to the merits of their claim. Accordingly, I dissent from the opinion of the Court.
*
Mr. Justice REHNQUIST joins Parts I, II, IV, and V of this opinion.
1
The ICRA was initially passed by the Senate in 1967, 113 Cong.Rec. 35473, as a separate bill containing six Titles. S. 1843, 90th Cong., 1st Sess. (1967). It was re-enacted by the Senate in 1968 without change, 114 Cong.Rec. 5838, as an amendment to a House-originated bill, H.R. 2516, 90th Cong., 2d Sess. (1968), and was then approved by the House and signed into law by the President as Titles II through VII of the Civil Rights Act of 1968, Pub.L. 90-284, 82 Stat. 77. Thus, the first Title of the ICRA was enacted as Title II of the Civil Rights Act of 1968. The six Titles of the ICRA will be referred to herein by their title numbers as they appeared in the version of S. 1843 passed by the Senate in 1967.
2
The ordinance, enacted by the Santa Clara Pueblo Council pursuant to its legislative authority under the Constitution of the Pueblo, establishes the following membership rules:
"1. All children born of marriages between members of the Santa Clara Pueblo shall be members of the Santa Clara Pueblo.
"2. . . . [C]hildren born of marriages between male members of the Santa Clara Pueblo and non-members shall be members of the Santa Clara Pueblo.
"3. Children born of marriages between female members of the Santa Clara Pueblo and non-members shall not be members of the Santa Clara Pueblo.
"4. Persons shall not be naturalized as members of the Santa Clara Pueblo under any circumstances."
Respondents challenged only subparagraphs 2 and 3. By virtue of subparagraph 4, Julia Martinez' husband is precluded from joining the Pueblo and thereby assuring the children's membership pursuant to subparagraph 1.
3
Respondent Julia Martinez was certified to represent a class consisting of all women who are members of the Santa Clara Pueblo and have married men who are not members of the Pueblo, while Audrey Martinez was certified as the class representative of all children born to marriages between Santa Claran women and men who are not members of the Pueblo.
4
Section 1343(4) gives the district courts "jurisdiction of any civil action authorized by law to be commenced by any person . . . to secure equitable or other relief under any Act of Congress providing for the protection of civil rights" (emphasis added). The District Court evidently believed that jurisdiction could not exist under § 1343(4) unless the ICRA did in fact authorize actions for declaratory or injunctive relief in appropriate cases. For purposes of this case, we need not decide whether § 1343(4) jurisdiction can be established merely by presenting a substantial question concerning the availability of a particular form of relief. Cf. Bell v. Hood, 327 U.S. 678, 66 S.Ct. 773, 90 L.Ed. 939 (1946) (jurisdiction under 28 U.S.C. § 1331). See also United States v. Memphis Cotton Oil Co., 288 U.S. 62, 67-68, 53 S.Ct. 278, 280, 77 L.Ed. 619 (1933) (Cardozo, J.).
5
The court found that "Audrey Martinez and many other children similarly situated have been brought up on the Pueblo, speak the Tewa language, participate in its life, and are, culturally, for all practical purposes, Santa Claran Indians." 402 F.Supp., at 18.
6
The Santa Clara Pueblo is a relatively small tribe. Approximately 1,200 members reside on the reservation; 150 members of the Pueblo live elsewhere. In addition to tribal members, 150-200 nonmembers live on the reservation.
7
See, e. g., Twin Cities Chippewa Tribal Council v. Minnesota Chippewa Tribe, 370 F.2d 529, 533 (CA8 1967) (Due Process Clause of Fourteenth Amendment); Native American Church v. Navajo Tribal Council, 272 F.2d 131 (CA10 1959) (freedom of religion under First and Fourteenth Amendments); Barta v. Oglala Sioux Tribe, 259 F.2d 553 (CA8 1958), cert. denied, 358 U.S. 932, 79 S.Ct. 320, 3 L.Ed.2d 304 (1959) (Fourteenth Amendment). See also Martinez v. Southern Ute Tribe, 249 F.2d 915, 919 (CA10 1957), cert. denied, 356 U.S. 960, 78 S.Ct. 998, 2 L.Ed.2d 1067 (1958) (applying Talton to Fifth Amendment due process claim); Groundhog v. Keeler, 442 F.2d 674, 678 (CA10 1971). But see Colliflower v. Garland, 342 F.2d 369 (CA9 1965), and Settler v. Yakima Tribal Court, 419 F.2d 486 (CA9 1969), cert. denied, 398 U.S. 903, 90 S.Ct. 1690, 26 L.Ed.2d 61 (1970), both holding that where a tribal court was so pervasively regulated by a federal agency that it was in effect a federal instrumentality, a writ of habeas corpus would lie to a person detained by that court in violation of the Constitution.
The line of authority growing out of Talton, while exempting Indian tribes from constitutional provisions addressed specifically to State or Federal Governments, of course, does not relieve State and Federal Governments of their obligations to individual Indians under these provisions.
8
Section 1302 in its entirety provides that:
"No Indian tribe in exercising powers of self-government shall—
"(1) make or enforce any law prohibiting the free exercise of religion, or abridging the freedom of speech, or of the press, or the right of the people peaceably to assemble and to petition for a redress of grievances;
"(2) violate the right of the people to be secure in their persons, houses, papers, and effects against unreasonable search and seizures, nor issue warrants, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched and the person or thing to be seized;
"(3) subject any person for the same offense to be twice put in jeopardy;
"(4) compel any person in any criminal case to be a witness against himself;
"(5) take any private property for a public use without just compensation;
"(6) deny to any person in a criminal proceeding the right to a speedy and public trial, to be informed of the nature and cause of the accusation, to be confronted with the witnesses against him, to have compulsory process for obtaining witnesses in his favor, and at his own expense to have the assistance of counsel for his defense;
"(7) require excessive bail, impose excessive fines, inflict cruel and unusual punishments, and in no event impose for conviction of any one offense any penalty or punishment greater than imprisonment for a term of six months or a fine of $500, or both;
"(8) deny to any person within its jurisdiction the equal protection of its laws or deprive any person of liberty or property without due process of law;
"(9) pass any bill of attainder or ex post facto law; or
"(10) deny to any person accused of an offense punishable by imprisonment the right, upon request, to a trial by jury of not less than six persons."
Section 1301 is a definitional section, which provides, inter alia, that the "powers of self-government" shall include "all governmental powers possessed by an Indian tribe, executive, legislative, and judicial, and all offices, bodies, and tribunals by and through which they are executed . . . ." 25 U.S.C. § 1301(2).
9
In Fisher, we held that a state court did not have jurisdiction over an adoption proceeding in which all parties were members of an Indian tribe and residents of the reservation. Rejecting the mother's argument that denying her access to the state courts constituted an impermissible racial discrimination, we reasoned:
"The exclusive jurisdiction of the Tribal Court does not derive from the race of the plaintiff but rather from the quasi-sovereign status of the Northern Cheyenne Tribe under federal law . . . . [E]ven if a jurisdictional holding occasionally results in denying an Indian plaintiff a forum to which a non-Indian has access, such disparate treatment of the Indian is justified because it is intended to benefit the class of which he is a member by furthering the congressional policy of Indian self-government." 424 U.S., at 390-391, 96 S.Ct., at 948.
In Williams v. Lee, we held that a non-Indian merchant could not invoke the jurisdiction of a state court to collect a debt owed by a reservation Indian and arising out of the merchant's activities on the reservation, but instead must seek relief exclusively through tribal remedies.
10
"First, is the plaintiff 'one of the class for whose especial benefit the statute was enacted,' Texas & Pacific R. Co. v. Rigsby, 241 U.S. 33, 39, [36 S.Ct. 482, 60 L.Ed. 874] (1916) (emphasis supplied)—that is, does the statute create a federal right in favor of the plaintiff? Second, is there any indication of legislative intent, explicit or implicit, either to create such a remedy or to deny one? See, e. g., National Railroad Passenger Corp. v. National Assn. of Railroad Passengers, 414 U.S. 453, 458, 460, 94 S.Ct. 690, 38 L.Ed.2d 646 (1974) (Amtrak ). Third, is it consistent with the underlying purposes of the legislative scheme to imply such a remedy for the plaintiff? See, e. g., Amtrak, supra ; Securities Investor Protection Corp. v. Barbour, 421 U.S. 512, 423, 95 S.Ct. 1733, 44 L.Ed.2d 263 (1975); Calhoon v. Harvey, 379 U.S. 134, 85 S.Ct. 292, 13 L.Ed.2d 190 (1964). And finally, is the cause of action one traditionally relegated to state [or tribal] law, in an area basically the concern of the States [or tribes], so that it would be inappropriate to infer a cause of action based solely on federal law?" Cort v. Ash, 422 U.S., at 78, 95 S.Ct., at 2088.
See generally Note, Implication of Civil Remedies Under the Indian Civil Rights Act, 75 Mich.L.Rev. 210 (1976).
11
One month before passage of the ICRA, President Johnson had urged its enactment as part of a legislative and administrative program with the overall goal of furthering "self-determination," "self-help," and "self-development" of Indian tribes. See 114 Cong.Rec. 5518, 5520 (1968).
12
Exploratory hearings which led to the ICRA commenced in 1961 before the Subcommittee on Constitutional Righ § of the Senate Judiciary Committee. In 1964, Senator Ervin, Chairman of the Subcommittee, introduced S. 3041-3048, 88th Cong., 2d Sess., on which no hearings were had. The bills were reintroduced in the 89th Congress as S. 961-968 and were the subject of extensive hearings by the Subcommittee. Hearings on S. 961-968 and S.J.Res. 40 before the Subcommittee on Constitutional Rights of the Senate Committee on the Judiciary, 89th Cong., 1st Sess. (1965) (hereinafter cited as 1965 Hearings).
S. 961 would have extended to tribal governments all constitutional provisions applicable to the Federal Government. After criticism of this proposal at the hearings, Congress instead adopted the approach found in a substitute bill submitted by the Interior Department, reprinted in 1965 Hearings 318, which, with some changes in wording, was enacted into law as 25 U.S.C. §§ 1302-1303. See also n. 1, supra.
13
See, e. g., Subcommittee on Constitutional Rights of the Senate Committee on the Judiciary, Constitutional Rights of the American Indian: Summary Report of Hearings and Investigations Pursuant to S.Res. 194, 89th Cong., 2d Sess., 8-11, 25 (Comm. Print 1966); 1965 Hearings 17, 21, 50 (statements of Solicitor of the Dept. of Interior); id., at 65 (statement of Arthur Lazarus, Jr., General Counsel for the Association of American Indian Affairs).
14
The provisions of § 1302, set forth fully in n. 8, supra, differ in language and in substance in many other respects from those contained in the constitutional provisions on which they were modeled. The provisions of the Second and Third Amendments, in addition to those of the Seventh Amendment, were omitted entirely. The provision here at issue, § 1302(8), differs from the constitutional Equal Protection Clause in that it guarantees "the equal protection of its [the tribe's] laws," rather than of "the laws." Moreover, § 1302(7), which prohibits cruel or unusual punishments and excessive bails, sets an absolute limit of six months' imprisonment and a $500 fine on penalties which a tribe may impose. Finally, while most of the guarantees of the Fifth Amendment were extended to tribal actions, it is interesting to note that § 1302 does not require tribal criminal prosecutions to be initiated by grand jury indictment, which was the requirement of the Fifth Amendment specifically at issue and found inapplicable to tribes in Talton v. Mayes, discussed, supra, at 56.
15
See, e. g., 114 Cong.Rec. 9596 (1968) (remarks of Rep. Meeds); Hearings on H.R. 15419 before the Subcommittee on Indian Affairs of the House Committee on Interior & Insular Affairs, 90th Cong., 2d Sess., 108 (1968) (hereinafter cited as House Hearings). See also 1965 Hearings 198 (remarks of Executive Director, National Congress of American Indians).
16
In 25 U.S.C. § 1323(b), Congress expressly repealed § 7 of the Act of Aug. 15, 1953, 67 Stat. 590, which had authorized States to assume criminal and civil jurisdiction over reservations without tribal consent.
17
Title II of the ICRA provides, inter alia, "for the establishing of educational classes for the training of judges of courts of Indian offenses." 25 U.S.C. § 1311(4). Courts of Indian offenses were created by the Federal Bureau of Indian Affairs to administer criminal justice for those tribes lacking their wn criminal courts. See generally W. Hagan, Indian Police and Judges 104-125 (1966).
18
Under 25 U.S.C. § 81, the Secretary of the Interior and the Commissioner of Indian Affairs are generally required to approve any contract made between a tribe and an attorney. At the exploratory hearings, see n. 12, supra, it became apparent that the Interior Department had engaged in inordinate delays in approving such contracts and had thereby hindered the tribes in defending and asserting their legal rights. See, e. g., Hearings before the Subcommittee on Constitutional Rights of the Senate Committee on the Judiciary pursuant to S.Res.53, 87th Cong., 1st Sess., 211 (1961) (hereinafter cited as 1961 Hearings); id., at 290, 341, 410. Title V of the ICRA, 25 U.S.C. § 1331, provides that the Department must act on applications for approval of attorney contracts within 90 days of their submission or the application will be deemed to have been granted.
19
The cost of civil litigation in federal district courts, in many instances located far from the reservations, doubtless exceeds that in most tribal forums. See generally 1 American Indian Policy Review Commission, Final Report 160-166 (1977); M. Price, Law and the American Indian 154-160 (1973). And as became apparent in congressional hearings on the ICRA, many of the poorer tribes with limited resources and income could ill afford to shoulder the burdens of defending federal lawsuits. See, e. g., 1965 Hearings 131, 157; Summary Report 1679; House Hearings 69 (remarks of the Governor of the San Felipe Pueblo).
20
Prior to passage of the ICRA, Congress made detailed inquiries into the extent to which tribal constitutions incorporated "Bill of Rights" guarantees, and the degree to which the tribal provisions differed from those found in the Constitution. § e, e. g., 1961 Hearings 121, 166, 359; Hearings before the Subcommittee on Constitutional Rights of the Senate Committee on the Judiciary pursuant to S.Res.58, 88th Cong., 1st Sess., 823 (1963). Both Senator Ervin, the ICRA's chief sponsor, and President Johnson, in urging passage of the Act, explained the need for Title I on the ground that few tribal constitutions included provisions of the Bill of Rights. See House Hearings 131 (remarks of Sen. Ervin); 114 Cong.Rec. 5520 (1968) (message from the President).
21
There are 287 tribal governments in operation in the United States, of which 117 had operating tribal courts in 1976. 1 American Indian Policy Review Commission, supra, n. 19, at 5, 163. In 1973 these courts handled approximately 70,000 cases. Id., at 163-164. Judgments of tribal courts, as to matters properly within their jurisdiction, have been regarded in some circumstances as entitled to full faith and credit in other courts. See, e. g., United States ex rel. Mackey v. Coxe, 18 How. 100, 15 L.Ed. 299 (1856); Standley v. Roberts, 59 F. 836, 845 (CA8 1894), appeal dismissed, 17 S.Ct. 999, 41 L.Ed. 1177 (1896).
22
By the terms of its Constitution, adopted in 1935 and approved by the Secretary of the Interior in accordance with the Indian Reorganization Act of 1934, 25 U.S.C. § 476, judicial authority in the Santa Clara Pueblo is vested in its tribal council.
Many tribal constitutions adopted pursuant to 25 U.S.C. § 476, though not that of the Santa Clara Pueblo, include provisions requiring that tribal ordinances not be given effect until the Department of Interior gives its approval. See 1 American Indian Policy Review Commission, supra n. 19, at 187-188; 1961 Hearings 95. In these instances, persons aggrieved by tribal laws may, in addition to pursuing tribal remedies, be able to seek relief from the Department of the Interior.
23
See n. 12, supra. Although extensive hearings on the ICRA were held in the Senate, see ibid., House consideration was extremely abbreviated. See House Hearings, supra ; 114 Cong.Rec. 9614-9615 (1968) (remarks of Rep. Aspinall).
24
S. 962, 89th Cong., 1st Sess. (1965), reprinted in 1965 Hearings 6-7. See n. 12, supra.
25
S. 963, 89th Cong., 1st Sess. (1965). See n. 12, supra.
26
The Interior Department substitute, reprinted in 1965 Hearings 318, provided in relevant part:
"Any action, other than a criminal action, taken by an Indian tribal government which deprives any American Indian of a right or freedom established and protected by this Act may be reviewed by the Secretary of the Interior upon his own motion or upon the request of said Indian. If the Secretary determines that said Indian has been deprived of any such right or freedom, he shall require the Indian tribal government to take such corrective action as he deems necessary. Any final decision of the Secretary may be reviewed by the United States district court in the district in which the action arose and such court shall have jurisdiction thereof."
In urging Congress to adopt this proposal, the Solicitor of Interior specifically suggested that "Congress has the power to give to the courts the jurisdiction that they would require to review the actions of an Indian tribal court," and that the substitute bill which the Department proposed "would actually confer on the district courts the jurisdiction they require to consider these problems." Id., 23-24. Congress' failure to adopt this provision is noteworthy particularly because it did adopt the other portion of the Interior substitute bill, which led to the current version of §§ 1302 and 1303. See n. 12, supra.
27
Respondents rely most heavily on a rambling passage in the Report discussing Talton v. Mayes and its progeny, see n. 7, supra, some of which arose in a civil context. S.Rep. No. 841, at 8-11. Although there is some language suggesting that Congress was concerned about the unavailability of relief in federal court, the Report nowhere states that Title I would be enforceable in a cause of action for declaratory or injunctive relief, and the cited passage is fully consistent with the conclusion that Congress intended only to modify the substance of the law applicable to Indian tribes, and to allow enforcement in federal court through habeas corpus. The Report itself characterized the import of its discussion as follows:
"These cases illustrate the continued denial of specific constitutional guarantees to litigants in tribal court proceedings, on the ground that the tribal courts are quasi-sovereign entities to which general provisions in the Constitution do not apply." Id., at 10.
28
The Report states: "The purpose of title I is to protect individual Indians from arbitrary and unjust actions by tribal governments. This is accomplished by placing certain limitations on an Indian tribe in the exercise of its powers of self-government." Id. at 6. It explains further that "[i]t is hoped that title II [25 U.S.C. § 1311], requiring the Secretary of the Interior to recommend a model code [to govern the administration of justice] for all Indian tribes, will implement the effect of title I." Ibid. (Although § 1311 by its terms refers only to courts of Indian offenses, see n. 17, supra, the Senate Report makes clear that the code is intended to serve as a model for use in all tribal courts. S.Rep. No. 841, supra, at 6, 11.) Thus, it appears that the Committee viewed § 1302 as enforceable only on habeas corpus and in tribal forums.
29
Senator Ervin described the model code provisions of Title II, see n. 28, supra, as "the proper vehicle by which the objectives" of Title I should be achieved. 113 Cong.Rec. 13475 (1967). And Congressman Reifel, one of the ICRA's chief supporters in the House, explained that "by providing for a writ of habeas corpus from the Federal court, the bill would assure effective enforcement of these fundamental rights." 114 Cong.Rec. 9553 (1968).
30
Only a few tribes had an opportunity to comment on the ICRA in its final form, since the House held only one day of hearings on the legislation. See n. 23, supra. The Pueblos of New Mexico, testifying in opposition to the provisions of Title I, argued that the habeas corpus provision of § 1303 "opens an avenue through which Federal courts, lacking knowledge of our traditional values, customs, and laws, could review and offset the decisions of our tribal councils." House Hearings 37. It is inconceivable that, had they understood the bill impliedly to authorize other actions, they would have remained silent, as they did, concerning this possibility. It would hardly be consistent with "[t]he overriding duty of our Federal Government to deal fairly with Indians," Morton v. Ruiz, 415 U.S. 199, 236, 94 S.Ct. 1055, 1075, 39 L.Ed.2d 270 (1974), lightly to imply a cause of action on which the tribes had no prior opportunity to present their views.
31
See generally Burnett, An Historical Analysis of the 1968 "Indian Civil Rights" Act, 9 Harv.J.Legis. 557, 574-602, 603 (1972).
32
A tribe's right to define its own membership for tribal purposes has long been recognized as central to its existence as an independent political community. See Roff v. Burney, 168 U.S. 218, 18 S.Ct. 60, 42 L.Ed. 442 (1897); Cherokee Intermarriage Cases, 203 U.S. 76, 27 S.Ct. 29, 51 L.Ed. 96 (1906). Given the often vast gulf between tribal traditions and those with which federal courts are more intimately familiar, the judiciary should not rush to create causes of action that would intrude on these delicate matters.
1
25 U.S.C. §§ 1301-1303.
2
Because the ICRA is silent on the question, I agree with the Court that the Act does not constitute a waiver of the Pueblo's sovereign immunity. The relief respondents seek, however, is available against petitioner Lucario Padilla, the Governor of the Pueblo. Under the Santa Clara Constitution, the Governor is charged with the duty of enforcing the Pueblo's laws. App. 5.
3
For example, habeas corpus relief is unlikely to be available to redress violations of freedom of speech, freedom of the press, free exercise of religion, or just compensation for the taking of property.
4
References in the legislative history to the role of Title II's model code in effectuating the purposes of Title I do not indicate that Congress rejected the possibility of a federal cause of action under § 1302. The wording of § 1311, which directs the Secretary of the Interior to recommend a model code, demonstrates that in enacting Title II Congress was primarily concerned with criminal proceedings. Thus it requires the code to include
"provisions which will (1) assure that any individual being tried for an offense by a court of Indian offenses shall have the same rights, privileges, and immunities under the United States Constitution as would be guaranteed any citizen of the United States being tried in a Federal court for any similar offense, (2) assure that any individual being tried for an offense by a court of Indian offenses will be advised and made aware of his rights under the United States Constitution, and under any tribal constitution applicable to such individual . . . ."
The remaining required provisions concern the qualifications for office of judges of courts of Indian offenses and educational classes for the training of such judges. While the enactment of Title II shows Congress' desire to implement the provisions of § 1302 concerning rights of criminal defendants and to upgrade the quality of tribal judicial proceedings, it gives no indication that Congress decided to deny a federal cause of action to review tribal actions arising in a noncriminal context.
5
The opinion to which the Subcommittee was referring was Native American Church v. Navajo Tribal Council, 272 F.2d 131 (CA10 1959), in which the court dismissed for lack of federal jurisdiction an action challenging a Navajo tribal ordinance making it a criminal offense "to introduce into the Navajo country, sell, use or have in possession within the Navajo country, the bean known as peyote . . . ." Id., at 132. It was contended that the ordinance violated plaintiffs' right to the free exercise of religion. Because the court concluded that the First Amendment was not applicable to the tribe, it held that the federal courts lacked jurisdiction, "even though [the tribal laws or regulations] may have an impact to some extent on forms of religious worship." Id., at 135.
The Senate Report also made note of this decision in what the majority terms a "rambling passage." Ante, at 69 n. 27. In this passage the Committee reviewed various federal decisions relating to the question "whether a tribal Indian can successfully challenge on constitutional grounds specific acts or practices of the Indian tribe." Senate Report 9. With only one exception, these decisions held that federal courts lacked jurisdiction to review alleged constitutional violations by tribal officials because the provisions of the Bill of Rights were not binding on the tribes. This section of the Senate Report, which is included under the heading "Need for Legislation," indicates Congress' concern over the Indian's lack of remedies for tribal constitutional violations.
6
Testimony before the Subcommittee indicated that the mere provision of constitutional rights to the tribes did not necessarily guarantee that those rights would be observed. Mr. Lawrence Jaramillo, a former Governor of the Isleta Pueblo, testified that, despite the tribal constitution's guarantee of freedom of religion, the present tribal Governor had attempted to "alter certain religious procedures of the Catholic priest who resides on the reservation." 1965 Hearings 261, 264. Mr. Jaramillo stated that the Governor "has been making his own laws and he has been making his own decisions and he has been making his own court rulings," and he implored the Subcommittee:
"Honorable Senator Ervin, we ask you to see if we can have any protection on these constitutional rights. We do not want to give jurisdiction to the State. We want to keep it in Federal jurisdiction. But we are asking this. We know if we are not given justice that we would like to appeal a case to the Federal court." Id., at 264.
| 12
|
56 L.Ed.2d 251
98 S.Ct. 1778
436 U.S. 238
Ike SLODOV, Petitioner,v.UNITED STATES.
No. 76-1835.
Argued Feb. 22, 1978.
Decided May 22, 1978.
Syllabus
Petitioner assumed control of three corporations at a time when a delinquency existed for unpaid federal taxes withheld from employees' wages, while the specific funds withheld but not paid had been dissipated by predecessor officers and when the corporations had no liquid assets with which to pay the overdue taxes. During the six-month period of petitioner's control the corporations acquired funds sufficient to pay the taxes, but petitioner used the funds to pay employees' wages, rent, suppliers and other creditors, and to meet current business expenses. On petitioner's withdrawal from the corporations' business, he instituted a bankruptcy proceeding, in which the Internal Revenue Service filed a claim, including the delinquent back taxes, under § 6672 of the Internal Revenue Code of 1954, which imposes personal liability for taxes on "[a]ny person required to collect, truthfully account for, and pay over any tax imposed by this title who willfully fails to collect such tax, or truthfully account for and pay over such tax, or willfully attempts in any manner to evade or defeat any such tax or the payment thereof . . . ." The Court of Appeals held that petitioner was personally liable for the unpaid taxes under § 6672. While petitioner concedes liability for the collection, accounting, and payment of taxes required to be withheld during the period of his control, he disclaims responsibility with respect to taxes withheld prior thereto, arguing that its conjunctive phrasing made § 6672 inapplicable to him since he was clearly under no duty to collect and account for taxes incurred before that period. The Government maintains that the statutory language could be construed as describing in terms of their general responsibilities the persons potentially liable under the statute without regard to the fulfillment of all the duties with respect to specific tax dollars, and that § 6672 imposed liability on petitioner as a "responsible person" because sums received during the period of his control were impressed with a trust in favor of the Government for the satisfaction of the overdue taxes and petitioner's willful use of such sums to pay other creditors violated the statute's "pay over" obligation. Though relying primarily on § 6672 for its trust theory of liability, the Government suggests as also applicable § 7501, which provides that "[w]henever a person is required to collect or withhold any internal revenue tax from any other person and to pay over such tax to the United States, the amount of the tax . . . shall be held to be a special fund in trust for the United States [which] shall be assessed, collected, and paid in the same manner and subject to the same provisions and limitations (including penalties) as are applicable with respect to the taxes from which such fund arose." Held :
1. The phrase "[a]ny person required to collect, truthfully account for, and pay over any tax imposed by this title" was meant to limit § 6672 to persons responsible for paying over taxes that require collection (third-party taxes) and not to limit it to persons in a position to perform all three functions with respect to the specific taxes as to which the employer is delinquent. Petitioner's construction could lead to ready evasion of responsibility under § 6672, and is thus at odds with the statute's purpose of assuring payment by third parties of withheld taxes. Pp. 246-250.
2. Neither § 6672 nor § 7501 impresses a trust on the after-acquired funds of an employer for payment of overdue withholding taxes absent tracing of those funds to taxes collected, and petitioner therefore was not liable under § 6672 for using those funds for purposes other than payment of the overdue withholding taxes. Pp. 253-259.
(a) Section 6672 was not intended to impose an absolute liability without personal fault for failure to "pay over" amounts that should have been collected and paid over so that petitioner could not be liable unless he failed to pay funds held in trust for the United States. Pp. 253-254.
(b) Nothing in the language or legislative history of § 6672 suggests that the effect of the "pay over" requirement was to impress a trust on the corporations' after-acquired cash, and the history of § 7501 makes clear that it was not. Since the very reason for adding § 7501 to the Code was that under existing law the liability of the person collecting and withholding the taxes was merely a debt, § 6672, whose predecessor was enacted while the debt concept of liability prevailed, hardly could have been intended to impose a trust on after-acquired cash. Although the trust concept of § 7501 may inform the scope of the duty imposed by § 6672, the language of § 7501 makes clear that there must be a nexus between the funds collected and the trust created. Pp. 254-256.
(c) A construction of §§ 7501 and 6672 as imposing a trust on all after-acquired property without regard to the interests of others in those funds would conflict with the priority rules applicable to the collection of back taxes, which give secured parties interests in certain proceeds superior to tax liens. Pp. 256-259.
552 F.2d 159, 6 Cir., reversed.
Bennet Kleinman, Cleveland, Ohio, for petitioner.
Steven R. Barnett, for respondent.
Mr. Justice BRENNAN delivered the opinion of the Court.
1
Petitioner, an orthodontist by profession, on January 31, 1969, purchased the stock and assumed the management of three corporations engaged in the food vending business. The corporations were indebted at the time of the purchase for approximately $250,000 of taxes, including federal wage and Federal Insurance Contribution Act (FICA) taxes withheld from employees' wages prior to January 31. The sums withheld had not been paid over when due, however, but had been dissipated by the previous management before petitioner acquired the businesses. After petitioner assumed control, the corporations acquired funds sufficient to pay the taxes, but petitioner used the funds to pay employees' wages, rent, suppliers and other creditors, and to meet other day-to-day expenses incurred in operating the businesses. The question to be decided is whether, in these circumstances, petitioner is personally liable under § 6672 of the Internal Revenue Code of 1954, 26 U.S.C. § 6672—which imposes personal liability for taxes on "[a]ny person required to collect, truthfully account for, and pay over any tax imposed by this title who willfully fails to collect such tax, or truthfully account for and pay over such tax, or willfully attempts in any manner to evade or defeat any such tax or the payment thereof . . . "—for the corporations' unpaid taxes withheld from wages prior to his assumption of control. The Court of Appeals for the Sixth Circuit held that petitioner was personally liable under § 6672 for the unpaid taxes. 552 F.2d 159 (1977). We granted certiorari.1 434 U.S. 817, 98 S.Ct. 54, 54 L.Ed.2d 72 (1977). We reverse.
2
* The case arose from the filing by the Internal Revenue Service (IRS) of a claim for the taxes in a proceeding instituted by petitioner in July 1969 for a real property arrangement under Chapter XII of the Bankruptcy Act. The facts determined after hearing by the bankruptcy judge, 74-2 USTC ¶ 9719 (ND Ohio 1974), are not challenged. Petitioner purchased and assumed managerial control of the Tas-Tee Catering, Tas-Tee Vending, and Charles Corporations on January 31, 1969. When he bough the stock, petitioner understood, and the purchase agreement reflected, that the corporations had an outstanding obligation for taxes in the amount of $250,000 due for payment on January 31, including withheld employee wage and FICA taxes (hereinafter trust-fund taxes). During the purchase negotiations, the sellers represented to petitioner that balances in the various corporate checking accounts were sufficient to pay these taxes as well as bills due other creditors. Relying on the representation, petitioner, on Saturday, February 1, sent four checks to the IRS in payment of the taxes. On Monday, February 3, petitioner discovered that the accounts were overdrawn and stopped payment on the checks. Thus, at the time that petitioner assumed control, the corporations had no liquid assets, and whatever trust-fund taxes had been collected prior to petitioner's assumption of control had been dissipated.
3
Petitioner immediately advised the IRS that the corporations had no funds with which to pay the taxes, and solicited guidance concerning how the corporations should proceed. App. 36. There was evidence that IRS officials advised petitioner that they had no objection to his continuing operations so long as current tax obligations were met, and that petitioner agreed to do so and to endeavor to pay the arrearages as soon as possible. Tr. 37-38. The IRS never represented that it would hold petitioner harmless under § 6672 for the back taxes, however.
4
To continue operations, petitioner deposited personal funds in the corporate account, and, to obtain inventory, agreed with certain suppliers to pay cash upon delivery. During petitioner's tenure, from January 31 to July 15, 1969, the corporations' gross receipts approximated $130,000 per week for the first few months but declined thereafter. The corporations "established a system of segregating funds for payment of withheld taxes and did, in fact, pay withheld taxes during the period February 1, 1969, to July 15, 1969." App. 30. The bankruptcy judge found, and the IRS concedes, that the $249,212 in taxes paid during this period was approximately sufficient to defray current tax obligations. No taxes owing for periods prior to February 1, were paid, however, and in July 1969 the corporations terminated operations and filed for bankruptcy.
II
5
Several provisions of the Internal Revenue Code require third persons to collect taxes from the taxpayer. Among the more important are 26 U.S.C. §§ 3102(a) and 3402(a) (1970 ed. and Supp. V) which respectively require deduction from wages paid to employees of the employees' share of FICA taxes, and the withholding tax on wages applicable to individual income taxes. The withheld sums are commonly referred to as "trust fund taxes," reflecting the Code's provision that such withholdings or collections are deemed to be a "special fund in trust for the United States." 26 U.S.C. § 7501(a). There is no general requirement that the withheld sums be segregated from the employer's general funds, however, or that they be deposited in a separate bank account until required to be paid to the Treasury. Because the Code requires the employer to collect taxes as wages are paid, § 3102(a), while requiring payment of such taxes only quarterly,2 the funds accumulated during the quarter can be a tempting source of ready cash to a failing corporation beleaguered by creditors.3 Once net wages are paid to the employee, the taxes withheld are credited to the employee regardless of whether they are paid by the employer, so that the IRS has recourse only against the employer for their payment.4
6
An employer who fails to pay taxes withheld from its employees' wages is, of course, liable for the taxes which should have been paid, §§ 3102(b) and 3403. The IRS has several means at its disposal to effect payment of the taxes so withheld. First, once it has been determined that an employer has been inexcusably delinquent, the IRS, upon giving hand-delivered notice, may require the employer, thereafter, and until further notice, to deposit withheld taxes in a special bank trust account within two banking days after collection, to be retained there until required to be paid to the Treasury at the quarter's end. § 7512. Second, with respect to trust funds past due prior to any such notification, the amount collected or withheld "shall be held to be a special fund in trust for the United States [and] [t]he amount of such fund shall be assessed, collected, and paid in the same manner and subject to the same provisions and limitations (including penalties) as are applicable with respect to the taxes from which such fund arose." 26 U.S.C. § 7501. Thus there is made applicable to employment taxes withheld but not paid the full range of collection methods available for the collection of taxes generally. After assessment, notice, and demand,5 the IRS may, therefore, create a lien upon the property of the employer, § 6321, and levy, distrain, and sell the employer's property in satisfaction. §§ 6331 to 6344 (1970 ed. and Supp. V).
7
Third, penalties may be assessed against the delinquent employer. Section 6656 of the Code imposes a penalty of 5% of the underpayment of any tax required to be deposited, and 26 U.S.C. §§ 7202 and 7215 provide criminal penalties respectively for willful failure to "collect or truthfully account for and pay over" trust-fund taxes, and for failure to comply with the requirements of § 7512, discussed supra, regarding special accounting requirements upon notice by the Secretary.
8
Finally, as in this case, the officers or employees of the employer responsible for effectuating the collection and payment of trust-fund taxes who willfully fail to do so are made personally liable to a "penalty" equal to the amount of the delinquent taxes. Section 6672 provides, inter alia:
9
"Any person required to collect, truthfully account for, and pay over any tax imposed by this title who willfully fails to collect such tax, or truthfully account for and pay over such tax, or willfully attempts in any manner to evade or defeat any such tax or the payment thereof, shall, in addition to other penalties provided by law, be liable to a penalty equal to the total amount of the tax evaded, or not collected, or not accounted for and paid over. . . ."
10
Section 6671(b) defines "person," for purposes of § 6672, as including "an officer or employee of a corporation, or a member or employee of a partnership, who as such officer, employee, or member is under a duty to perform the act in respect of which the violation occurs." Also, § 7202 of the Code,6 which tracks the wording of § 6672, makes a violation punishable as a felony subject to a fine of $10,000, and imprisonment for 5 years. Thus, an employer-official or other employee responsibl for collecting and paying taxes who willfully fails to do so is subject to both a civil penalty equivalent to 100% of the taxes not collected or paid, and to a felony conviction. Only the application to petitioner of the civil penalty provision, § 6672, is at issue in this case.
III
11
When the same individual or individuals who caused the delinquency in any tax quarter are also the "responsible persons"7 at the time the Government's efforts to collect from the employer have failed, and it seeks recourse against the "responsible employees," see IRS Policy Statement P-5-60, IRS Manual, MT 1218-56 (Feb. 25, 1976), there is no question that § 6672 is applicable to them. It is the situation that arises when there has been a change of control of the employer enterprise, here corporations, prior to the expiration of a tax quarter, or at a time when a tax delinquency for past quarters already exists that creates the question for our decision. In this case, petitioner assumed control at a time when a delinquency existed for unpaid trust-fund taxes, while the specific funds withheld but not paid had been dissipated by predecessor officers and when the corporations had no liquid assets with which to pay the overdue taxes.
12
Petitioner concedes that he was subject to personal liability under § 6672 as a person responsible for the collection, accounting, and payment of employment taxes required to be withheld between January 31, 1969, when he assumed control of the corporations and July 15, 1969, when he resigned. Tr. of Oral Arg. 8. His contention is that he was not, however, a responsible person within § 6672 with respect to taxes withheld prior to his assumption of control and that § 6672 consequently imposed no duty upon him to pay the taxes collected by his predecessors. Petitioner argues that this construction of § 6672 follows necessarily from the statute's limitation of personal liability to "[a]ny person required to collect, truthfully account for and pay over any tax imposed by this title," who willfully fails to discharge those responsibilities (emphasis added). He argues that since the obligations are phrased in the conjunctive, a person can be subject to the section only if all three duties—(1) to collect, (2) truthfully account for, and (3) pay over—were applicable to him with respect to the tax dollars in question. See McCullough v. United States, 462 F.2d 588 (CA 5 1972). On the other hand, as the Government argues, the language could be construed as describing, in terms of their general responsibilities, the persons potentially liable under the statute, without regard to whether those persons were in a position to perform all of the duties with respect to the specific tax dollars in question. Although neither construction is inconsistent with the language of the statute, we reject petitioner's as inconsistent with its purpose.
13
Sections 6672 and 7202 were designed to assure compliance by the employer with its obligation to withhold and pay the sums withheld, by subjecting the employer's officials responsible for the employer's decisions regarding withholding and payment to civil and criminal penalties for the employer's delinquency. If § 667 were given petitioner's construction, the penalties easily could be evaded by changes in officials' responsibilities prior to the expiration of any quarter. Because the duty to pay over the tax arises only at the quarter's end, a "responsible person" who willfully failed to collect taxes would escape personal liability for that failure simply by resigning his position, and transferring to another the decisionmaking responsibility prior to the quarter's end.8 Obversely, a "responsible person" assuming control prior to the quarter's end could, without incurring personal liability under § 6672, willfully dissipate the trust funds collected and segregated by his predecessor.9
14
That this result, obviously at odds with the statute's purpose to assure payment of withheld taxes, was not intended is buttressed by the history of the provision. The predecessor of § 6672, § 1308(c), Revenue Act of 1918, 40 Stat. 1143, provided, inter alia: "Any person who willfully refuses to pay, collect, or truly account for and pay over [taxes enumerated in § 1308(a)] shall . . . be liable to a penalty of the amount of the tax evaded or not paid, collected, or accounted for and paid over . . . ."10 The statute remained unchanged in this respect until 1954 when the successor section to § 1308(c)11 was revised to its present form. Both before and after the 1954 revision the "person" potentially liable under the statute was defined in a separate provision, § 1308(d), succeeded by present § 6671(b), as, including "an officer or employee of a corporation or a member or employer of a partnership, who as such officer, employee, or member is under a duty to perform the act in respect of which the violation occurs." When, in 1954, Congress added the phrase modifying "person"—"Any person required to collect, truthfully account for, and pay over any tax imposed by this title"—it was not seeking further to describe the class of persons defined in § 6671(b) upon whom fell the responsibility for collecting taxes, but was attempting to clarify the type of tax to which the penalty section was applicable. Since under the 1954 amendment the penalty would otherwise be applicable to "any tax imposed by this title," the phrase modifying "person" was necessary to insure that the penalty provided by that section would be read as applicable only to failure to pay taxes which require collection, that is, third-party taxes, and not fai ure to pay "any tax imposed by this title," which, of course, would include direct taxes such as employer FICA and income taxes. As both the House and Senate Committees expressed it, "the application of this penalty is limited only to the collected or withheld taxes which are imposed on some person other than the person who is required to collect, account for and pay over, the tax."12 Thus, by adding the phrase modifying "person," Congress was attempting to clarify the type of tax to which the penalty section was applicable, perhaps inartfully, by reference to the duty of the person required to collect them. This view is supported by the fact that the Commissioner of Internal Revenue issued a regulation shortly after the amendment, limiting the application of the § 6672 penalty to third-party taxes. 22 Fed.Reg. 9148 (1957), now codified as Treas. Reg. § 301.6672-1, 26 CFR § 301.6672-1 (1977).
15
We conclude therefore that the phrase "[a]ny person required to collect, truthfully account for, and pay over any tax imposed by this title" was meant to limit § 6672 to persons responsible for collection of third-party taxes and not to limit it to those persons in a position to perform all three of the enumerated duties with respect to the tax dollars in question.13
16
We turn then to the Government's contention that petitioner was subject to personal liability under § 6672 when during the period in which he was a responsible person, the corporations generated gross receipts sufficient to pay the back taxes, but used the funds for other purposes.
B
17
Although at the time petitioner became a responsible person the trust-fund taxes had been dissipated and the corporations had no liquid assets, the Government contends that § 6672 imposed civil liability upon petitioner because sums received from sales in carrying on the businesses after January 31, 1969, were impressed with a trust in favor of the United States for the satisfaction of overdue employment taxes, and petitioner's willful use of those funds to pay creditors other than the United States, violated the obligation to "pay over" imposed by § 6672. The Government does not argue that the statute requires a "responsible person" to liquidate corporate assets to pay the back taxes upon assuming control, however; it argues only that a trust was impressed on all cash received by the corporations. Tr. of Oral Arg. 26, 28-29, 30-31, 32. We think that that construction of § 6672 would not advance the statute's purpose and, moreover, is inconsistent with the context and legislative history of the provision and its relation to the Code's priority rule applicable to collection of back taxes.
18
(1)
19
The Government argues that its construction of the statute is necessary to effectuate the congressional purpose to assure collection and payment of taxes. Although that construction might in this case garner tax dollars otherwise uncollectable, its long-term effect arguably would more likely frustrate than aid the IRS's collection efforts.
20
At the time petitioner assumed control, the corporations owed back taxes, were overdue on their supplier accounts, and had no cash. To the extent that the corporations had assets unencumbered by liens superior to a tax lien, the IRS could satisfy its claim by levy and sale. But as will often be the case, the corporations here apparently did not have such assets. The Government admits that in such circumstances, the IRS's practice is to be "flexible," Tr. of Oral Arg. 27, 28, 32, 48, and does not insist that the corporation discontinue operations, thereby substituting for certain loss at least the potential of recovering back taxes if the corporation makes a financial recovery. It argues nevertheless that the "responsible person" renders himself personally liable to the § 6672 penalty by using gross receipts to purchase inventory or pay wages, or even by using personal funds for those purposes,14 so long as any third-party employment tax bill remains unpaid.15
21
Thus, although it is in the IRS's interest to encourage the responsible person to continue operation with the hope of receiving payment of the back taxes, if the attempt fails and the taxes remain unpaid, the IRS insists that the § 6672 personal-liability penalty attached upon payment of the first dollar to a supplier. The practical effect of that construction of the statute would be that a well-counseled person contemplating assuming control of a financially beleaguered corporation owing back employment taxes would recognize that he could do so without incurring personal civil and criminal penalties only if there were available sufficient borrowed or personal funds fully to pay all back employment taxes before doing any business. If that course is unattractive or unavailable to the corporation, the Government will be remitted to its claim in bankruptcy. When an immediate filing for bankruptcy means a total loss, the Government understandably, as it did here, does not discourage the corporation from continuing to operate so long as current taxes are paid. As soon as the corporation embarks upon that course, however, the "responsible person" is potentially liable to heavy civil and criminal penalties not for doing anything which compromised the Government's collection efforts, but for doing what the Government regards as maximizing its chances for recovery. As construed by the Government, § 6672 would merely discourage changes of ownership and management of financially troubled corporations and the infusion of equity or debt funding which might accompany it without encouraging employer compliance with tax obligations or facilitating collection of back taxes. Thus, recovery of employer taxes would likely be limited to the situation in which the prospective purchaser or management official is ignorant of § 6672.16
22
(2)
23
As noted in the previous section, § 6672 as construed by the Government would, in effect, make the responsible person assuming control of a business a guarantor for payment of the delinquent taxes simply by undertaking to continue operation of the business. That construction is precluded by the history and context of § 6672 and cognate provisions of the Code.
24
Section 6672 cannot be read as imposing upon the responsible person an absolute duty to "pay over" amounts which should have been collected and withheld. The fact that the provision imposes a "penalty" and is violated only by a "willful failure" is itself strong evidence that it was not intended to impose liability without personal fault. Congress, moreover, has not made corporate officers personally liable for the corporation's tax obligations generally, and § 6672 therefore should be construed in a way which respects that policy choice. The Government's concession—that § 6672 does not impose a duty on the responsible officer to use personal funds or even to liquidate corporate assets to satisfy the tax obligations—recognizes that the "pay over" requirement does not impose an absolute duty on the responsible person to pay back taxes.
25
Recognizing that the statute cannot be construed to impose liability without fault, the Government characterizes petitioner's use of gross receipts for payment of operating expenses as a breach of trust, arguing that a trust was impressed on all after-acquired cash. Nothing whatever in § 6672 or its legislative history suggests that the effect of the requirement to "pay over" was to impress a trust on the corporation's after-acquired c sh, however. Moreover, the history of a related section, 26 U.S.C. § 7501,17 makes clear that it was not. Section 7501 of the Code provides, inter alia, that the "amount of tax . . . collected or withheld shall be held to be a special fund in trust for the United States [which] shall be assessed, collected, and paid in the same manner and subject to the same provisions and limitations (including penalties) as are applicable with respect to the taxes from which such fund arose." This section was enacted in 1934. Act of May 10, 1934, ch. 277, § 607, 48 Stat. 768, 26 U.S.C. § 3661 (1952 ed.). The provision was added to H.R. 7835, 73d Cong., 2d Sess., by the Senate Finance Committee, which explained:
26
"Under existing law the liability of the person collecting and withholding the taxes to pay over the amount is merely a debt, and he cannot be treated as a trustee or proceeded against by distraint. Section [607] of the bill as reported impresses the amount of taxes withheld or collected with a trust and makes applicable for the enforcement of the Government's claim the administrative provisions for assessment and collection of taxes." S.Rep. No. 558, 73d Cong., 2d Sess., 53 (1934).
27
Since the very reason for adding § 7501 was, as the Senate Report states, that "the liability of the person collecting and withholding the taxes . . . is merely a debt" (emphasis added), § 6672, whose predecessor section was enacted in 1919 while the debt concept prevailed, hardly could have been intended to impose a trust on after-acquired cash.
28
We further reject the argument that § 7501, whose trust concept may be viewed as having modified the duty imposed under § 6672,18 can be construed as establishing a fiduciary obligation to pay over after-acquired cash unrelated to the withholding taxes. The language of § 7501 limits the trust to "the amount of the taxes withheld or collected." (Emphasis added.) Comparing that language with § 6672, which imposes liability for a willful failure to collect as well as failure to pay over, makes clear that under § 7501 there must be a nexus between the funds collected and the trust created. That construction is consistent with the accepted principle of trust law requiring tracing of misappropriated trust funds into the trustee's estate in order for an impressed trust to arise. See D. Dobbs, Handbook on the Law of Remedies 424-425 (1973). Finally, for the reasons discussed in the next section, a construction of § 7501 or § 6672 as imposing a trust on all after-acquired corporate funds without regard to the interests of others in those funds would conflict with the priority rules applicable to the collection of back taxes.
29
(3)
30
We developed in Part II, supra, that the Code affords the IRS several means to collect back taxes, including levy, distraint, and sale. But the IRS is not given the power to levy on property in the hands of the taxpayer beyond the extent of the taxpayer's interest in the property,19 and the Code specifically subordinates tax liens to the interests of certain others in the property, generally including those with a perfected security interest in the property.20 For example, the Code and established decisional principles subordinate the tax lien to perfected security interests arising before the filing of the tax lien,21 to certain perfected security interests in certain collateral, including inventory, arising after the tax lien filing when pursuant to a security agreement entered into before the filing,22 and to collateral which is the subject of a purchasesmoney mortgage regardless of whether the agreement was entered into before or after filing of the tax lien.23 As a consequence, secured parties often will have interests in certain proceeds superior to the tax lien, and it is unlikely, moreover, that corporations in the position of those involved here could continue in operation without making some payments to secured creditors under the terms of security agreements. Those payments may well take the form of cash or accounts receivable, which like other property may be subject to a security interest, when, for example, the security agreement covers the proceeds of inventory the purchase of which is financed by the secured party, or the security agreement requires the debtor to make payments under a purchase-money mortgage by assigning accounts receivable which are the proceeds of inventory financed by the mortgage.24 Thus, although the IRS is powerless to attach assets in which a secured party has a superior interest, it would impose a penalty under § 6672 if the responsible person fails to divert the secured party's proceeds to the Treasury without regard to whether the secured party's interests are superior to those of the Government. Surely Congress did not intend § 6672 to hammer the responsible person with the threat of heavy civil and criminal penalties to pay over proceeds in which the Code does not assert a priority interest.
IV
31
We hold that a "responsible person" under § 6672 may violate the "pay over" requirement of that statute by willfully failing to pay over trust funds collected prior to his accession to control when at the time he assumed control the corporation has funds impressed with a trust under § 7501, but that § 7501 does not impress a trust on after-acquired funds, and that the responsible person consequently does not violate § 6672 by willfully using employer funds for purposes other than satisf ction of the trust-fund tax claims of the United States when at the time he assumed control there were no funds with which to satisfy the tax obligation and the funds thereafter generated are not directly traceable to collected taxes referred to by that statute.25 That portion of the judgment of the Court of Appeals on the Government's cross-appeal holding petitioner liable under § 6672 for wage withholding and FICA taxes required to be collected from employees' wages prior to January 31, 1969, is
32
Reversed.
33
Mr. Justice REHNQUIST, concurring.
34
I join the Court's opinion and write separately only to emphasize that part of it which I think is critical to the disposition of this case. Both petitioner and the Government have available to them arguments, based upon two different clauses of § 6672, which, if accepted, would enable them to prevail on the literal language of the clause alone without further consideration of other factors. Petitioner argues with considerable cogency that the portion of § 6672 phrased conjunctively, ante, at 245, fails to include him within the class of persons liable for the penalty imposed by that section. If his argument were to be accepted, that would be the end of the case. I agree with the Court that his argument should be rejected, because its appeal based on the literal language of the clause is more than outweighed by the fact that the clause was added in 1954 very probably to narrow the class of persons who might be subject to the predecessor penalty provisions which were phrased in the disjunctive.
35
Having won this point the Government could then rely on the disjunctive literal language of the statute and its predecessors and argue that petitioner, a responsible corporate official at some point in time, is liable for all taxes which he failed to collect or, as is the case here, pay over. But the Government does not advance this argument, realizing, no doubt, that it is foreclosed largely for the reasons given by the Court in Part III-B(2) of its opinion. I fully agree with the Court's conclusion in this respect, stressing in addition only the fact that both the language and history of § 6672 make it perfectly clear that liability for this penalty cannot be imposed in the absence of a willful failure and the word "willful," used as it is in this context in conjunction with the word "penalty," requires some action that tends to impede collection of the corporation's trust-fund taxes before liability can attach. For example, even the Government concedes that a responsible officer need not use personal funds or liquidate corporate assets to satisfy past tax obligations which have arisen under the withholding provisions before the official assumed responsibility. Ante, at 254. It should be apparent from the Court's opinion, however, that this notion of "fault" may have little to do with other sections of the Tax Code. Its importation into § 6672 is compelled by the normal canons of statutory construction, but those canons may speak differently as to the meaning of the word "willful" or the concept of "fault" in other sections of the Code. Indeed, the inte pretation of § 6672 we adopt today is limited by the very factors which caused us to adopt it.
36
Mr. Justice WHITE, with whom THE CHIEF JUSTICE and Mr. Justice BLACKMUN join, dissenting in part.
37
The Court recognizes, as even petitioner concedes, that 26 U.S.C. § 6672 makes those individuals who are "required to collect, truthfully account for, and pay over any tax imposed by this title" ("responsible persons") personally liable for the failure to use available corporate funds to pay to the IRS amounts equal to sums withheld from employees during those periods in which they were "responsible persons." It also holds, and I agree, that the obligations of a "responsible person" under § 6672 are not limited to liabilities incurred during the period during which he occupied such a position but that he "violate[s] the 'pay over' requirement of that statute by willfully failing to pay over trust funds collected prior to his accession to control when at the time he assumed control the corporation has funds impressed with a trust under § 7501 . . . ." Ante, at 259. From this conclusion it would seem to automatically follow that one who becomes a "responsible person" subsequent to the collection of withholding tax payments from employees is, for purposes of § 6672, in the same shoes as one who was a "responsible person" at the time of collection. After all, as the Court recognizes, the purpose of § 6672 is to assure the collection and payment of taxes, and it is difficult to comprehend why the United States should be precluded from looking to what is probably its best source, the flow of funds coming into business entities, merely because a change in ownership or management has occurred subsequent to the time when the amounts in question were withheld from employees. Moreover, there is absolutely nothing in the language or legislative history of § 6672 which distinguishes between the obligations of "responsible persons" on the basis of when they assumed such a position. Indeed, this is the thrust of Part III-A of the Court's opinion. Inexplicably, however, and in disregard of these controlling principles, the Court holds that a "responsible person" does not violate § 6672 by willfully using funds acquired by the corporation after his accession for purposes other than the satisfaction of withholding tax claims of the United States arising from duties imposed by law prior to his accession.
38
* Although the Court concedes that the construction of § 6672 adopted by the Court of Appeals in this case and urged by the United States "might . . . garner tax dollars otherwise uncollectible" in cases such as this, ante, at 251, it rejects this construction in favor of one which permits corporations to escape their tax obligations through change of ownership or management primarily because of its belief that the free enterprise system is best promoted by the use of tax funds to subsidize the takeover of financially beleaguered companies. The majority deems it desirable to encourage "changes of ownership and management of financially troubled corporations and the infusion of equity or debt funding," ante, at 253, and construes the statute in a manner it believes to be consistent with this goal. Apparently, in the Court's view, tax funds are better used to subsidize such takeovers than to meet other social needs for which Congress has specifically appropriated tax funds. But I believe that the Court exceeds its mandate by construing the statute so as to conform to its conclusions concerning the best use of tax dollars collected from American employees. Section 6672 is not an appropriations statute or even a law, like the bankruptcy statute, designed to accomplish substantive ends. The statute lends no support to the Court's conclusion that an insolvent corporation with unpaid withholding taxes should be permitted to continue its business under the aegis of a successor officer, even at the cost of the United States' tax claim It is, purely and simply, a tax collection statute which is designed to do nothing more than assure that taxes withheld from employees find their way to the United States to be spent for those purposes defined by Congress. In my view, it is error to construe the statute in a way which permits the diversion of these funds from the uses determined by Congress to be in the public interest to ends which in the Court's view would better promote the general welfare.
39
The Court relies upon the fact that the IRS often applies a flexible approach and does not always insist that financially troubled concerns use all available funds to pay back taxes if such payment would require the corporation to discontinue operations. For present purposes, I assume that the IRS may properly so exercise its discretion and may, where it deems it appropriate, even waive any resort to § 6672 if the company should ultimately fail. What this establishes, however, is that the Court's construction of § 6672 is totally unnecessary even given its perception that a rigid application of the statute to successor employers would in the long run damage the economy and hinder IRS collection efforts. It is one thing to conclude that there are some circumstances in which the IRS might decide that the rigid application of § 6672 is not in its own interests but quite another matter to prevent the IRS from using this valuable collection tool in connection with successor employers and managers where it is convinced that its application will effectuate the collection of taxes.
40
Moreover, it is far from clear that permitting employers to use funds acquired subsequent to their assumption of control for purposes other than the satisfaction of the withholding tax claims of the United States will serve primarily as an aid to financially troubled concerns rather than as an invitation to defraud the Treasury. The Court holds that a person who assumes control must satisfy the business' pre-existing trust-fund tax obligations if the concern has funds available at the time he assumes control. Apparently, neither it nor the IRS would require the sale of the business' assets in order to meet such obligations. It is clear, however, that there will be a great number of companies which do not have cash available at the time of a change in ownership and management but are nevertheless viable, ongoing enterprises not in need of Government subsidization. Furthermore, any businessman with a minimum of acumen could in most circumstances make sure that the financial affairs of the company are so arranged that there are no uncommitted funds available at the moment of his accession to control. Finally, there can be little doubt that the Court's ruling today will result in changes in management and ownership which are in fact nothing but subterfuges to avoid using the company's funds to pay outstanding trust-fund tax obligations. The investors in any corporation seriously in arrears will also have a strong incentive to arrange changes of management, whether sham or real, in order to permit funds acquired by the corporation to be used for purposes other than satisfying its tax obligations without exposing its managers to personal liability. In addition, changes of ownership, often more formal than real, will frequently be arranged for no purpose other than to permit the concern to use future funds without regard to its pre-existing tax obligations.
II
41
The Court next makes the remarkable suggestion that § 6672 cannot be read as imposing an absolute duty upon "responsible persons" to use after-acquired funds to pay over amounts which should have been withheld because to do so would be to impose liability without personal fault which, according to the Court, is precluded by the statutory requirement of a "willful failure." As the concurring opinion of Mr. Justice REHNQUIST suggests, the term "willful" in our jurisprudence, particularly in connection with tax matters, normally connotes nothing more than a conscious act or omission which violates a known legal duty. In this case, there can be no doubt that petitioner acted willfully because with full knowledge that the corporations in question had outstanding tax obligations he chose to apply gross receipts received subsequent to his purchase to purposes other than payment of these taxes. It may be that the Court believes that the requirement of a "willful failure" is satisfied only by a showing of conduct which is immoral in some undefined sense. This view, however, is not only unsupported by evidence of legislative intent but would also prove far too much because even in instances where there is continuity of ownership and, under the Court's view, § 6672 is fully applicable, it will often be the case that "responsible persons" are not morally at fault for the failure to pay over in a timely fashion.
42
Ultimately, the Court is reduced to arguing that nothing in the legislative history of § 6672 indicates that the statute requires "responsible persons" to pay over after-acquired cash to meet outstanding tax obligations. Ante, at 254. I would have supposed that the burden of proof for a statutory construction as extraordinary as that adopted by the Court today is at the very least on its proponents. All that the Court is able to offer, however, is a brief excerpt from the legislative history of an entirely separate statute enacted some 15 years after the predecessor of § 6672 which, with all respect, has nothing to do with the question to be decided.
III
43
Finally, the Court purports to find support for its construction of § 6672 from the fact that priority rules applicable to the collection of back taxes in some cases subordinate tax liens to certain other interests in the property. Although this discussion may be of some educational value, it has absolutely nothing to do with the case at hand or the proper construction of § 6672. In the first place, as petitioner conceded at oral argument, the funds which came into his corporations subsequent to his assumption of control were unencumbered by liens. Tr. of Oral Arg. 4-5. Moreover, the conclusion which the Court draws from its exploration of priority rules for tax liens that "Congress did not intend § 6672 to hammer the responsible person with the threat of heavy civil and criminal penalties to pay over proceeds in which the Code does not assert a priority interest," ante, at 259, again proves far too much. If the mere possibility that others might have interests superior to a tax lien in proceeds which should under § 6672 be paid over to the United States is sufficient to render the statute inapplicable despite the fact that the funds in question are unencumbered, the section, for all practical purposes, has been judicially deleted from the United States Code. Even where there is no change in "responsible persons" or there are corporate funds available to a successor to make back payments of trust-fund tax claims, situations in which the Court would apply § 6672, there will be many occasions in which a tax lien would not have priority over all other hypothetical interests in funds which must be paid over to the United States under the statute. The fact is, of course, as the Court recognizes earlier in its opinion, ante, at 243-245, that the tax lien is merely one of several remedies which the IRS has at its disposal to effect the collection of taxes withheld by employers from employees and § 6672 was clearly not designed to be superfluous but rather independent of and a supplement to other means of collecting trust-fund taxes from employers.
44
Because I believe that the Court has, without justification, created yet another means of impeding the collection of taxes for purposes designated by Congress, I dissent from Parts III-B and IV of the Court's opinion.
1
In the Court of Appeals, petitioner appealed from a decision of the District Court holding him liable for withholding taxes for the period February 1 to July 15, 1969. The Court of Appeals reversed, 552 F.2d, at 161-163, and review of that holding was not sought here. Only the decision on the Government's cross-appeal holding petitioner liable for withholding taxes collected prior to January 31 is before us. Id., at 163-165.
2
See Treas. Reg. §§ 31.6011(a)-1(a)(1) and 31.6011(a)-4, 26 CFR §§ 31.6011(a)-1(a)(1) and 31.6011(a)-4 (1977), regarding return filing requirements. Treasury Reg. § 31.6151(a), 26 CFR § 31.6151(a) (1977), requires that the tax be paid when the return is due for filing. Treasury Reg. § 31.6011(a)-5, 26 CFR § 31.6011(a)-5 (1977), provides that monthly returns may be required in lieu of quarterly returns at the direction of the District Director. See also 26 U.S.C. § 7512(b).
3
See United States v. Sotelo, 436 U.S. 268, at 277-278, 98 S.Ct. 1795, at 1801 n. 10, 56 L.Ed.2d 275.
4
See Moore v. United States, 465 F.2d 514, 517 (CA 5 1972); Dillard v. Patterson, 326 F.2d 302, 304 (CA 5 1963); United States Fidelity & Guaranty Co. v. United States, 201 F.2d 118, 120 (CA 10 1952). This at the least is the administrative practice. See Brief for United States 10-11.
5
Assessment is made by recording the liability of the taxpayer in the office of the Secretary of the Treasury, 26 U.S.C. § 6203, and notice of the assessment and demand for payment generally are required to be made within 60 days of the assessment. 26 U.S.C. § 6303(a).
6
Section 7202 provides:
"Any person required under this title to collect, account for, and pay over any tax imposed by this title who willfully fails to collect or truthfully account for and pay over such tax shall, in addition to other penalties provided by law, be guilty of a felony and, upon conviction thereof, shall be fined not more than $10,000, or imprisoned not more than 5 years, or both, together with the costs of prosecution."
7
The cases which have been decided under § 6672 generally refer to the "person required to collect, truthfully account for, and pay over any tax imposed by this title" by the shorthand phrase "responsible person." We use that phrase without necessarily adopting any of the constructions placed upon it in the decisions.
8
Petitioner argues that his construction of the statute is consistent with imposition of § 6672 liability upon a "responsible person" removed before the end of the quarter, explaining that in such case § 6672 liability would attach because "[w]hile the taxpayer was removed as a responsible officer before the time payment was required to be made, he nevertheless came under the requirement of making the payment when he collected the taxes." Brief for Petitioner 9 (emphasis in original). "All three elements required to charge the taxpayer with the penalty . . . did in fact converge." Ibid. If that is so, we fail to see why all three elements did not "converge" when petitioner assumed control. In both circumstances liability is asserted under the statute as to a person not in a position to fulfill each of the duties with respect to the specific tax dollars in question. Moreover, apart from any illogic from which that argument suffers, it is highly dubious that Congress intended the words of the statute to create the almost metaphysical distinction suggested by petitioner's argument between a choate duty to perform all three functions upon one in control at the start of a tax quarter and an inchoate duty as to one assuming control in mid-quarter.
9
Although petitioner argues that neither § 6672 nor any other provision of the code imposes liability in this situation, he suggested at oral argument that liability might lie under ordinary trust principles. Tr. of Oral Arg. 14, 20-21.
10
As introduced in the House, H.R. 12863, 65th Cong., 2d Sess., § 1308 (1918), § 1308 was a re-enactment of existing law. Revenue Act of 1917, ch. 63, § 1004, 40 Stat. 325-326. The Senate Finance Committee completely rewrote the section, adding the major penalty provisions which have since continuously existed in the Code. The Committee Reports do not shed any light on the problem at hand, however. Between 1918 and 1954, the only change in § 1308(c), other than renumbering in the various Codes, see n. 11, infra, was that effected by the Revenue Act of 1924, ch. 234, § 1017(d), 43 Stat. 344, which changed the word "refuses" in the 1918 Act to "fails," and which in § 1017(b), the predecessor of Internal Revenue Code of 1954, 26 U.S.C. § 7202, changed the penalty from a misdemeanor to a felony.
11
Under the 1939 Code, the successor provisions to § 1308(c) were separately codified with each of the third-party collection taxes to which they were applicable. 26 U.S.C. § 2557(b)(4) (1952 ed.) (narcotics); 26 U.S.C. § 2707(a) (1952 ed.) (firearms); 26 U.S.C. § 1821(a)(3) (1952 ed.) (documents); 26 U.S.C. § 1718(c) (1952 ed.) (admissions and dues).
12
S.Rep.No. 1622, 83d Cong., 2d Sess., 596 (1954); H.R.Rep. No. 1337, 83d Cong., 2d Sess., A420 (1954), U.S.Code Cong. & Admin.News 1954, pp. 4025, 5245. The complete text of the Senate Report's discussion of § 6672 is as follows:
"This section is identical with that of the House bill.
"This section is similar to certain sections of existing law which prescribe a penalty equal to the total amount of the tax evaded, not collected, or not accounted for and paid over, in the case of willful failure to collect, or to truthfully account for and pay over, any tax imposed by this title, or willful attempt in any manner to evade or defeat such tax. However, the application of this penalty is limited only to the collected or withheld taxes which are imposed on some person other than the person who is required to collect, account for and pay over, the tax. Under existing law this penalty is not applicable in any case in which the additions to the tax in the case of delinquency or fraud are applicable. Under this section the additions to the tax provided by section 6653, relating to negligence or fraud, shall not be applied for any offense to which this section is applicable." (Emphasis added.)
The House Report is nearly identical.
13
See Rubin v. United States, 380 F.Supp. 1176, 1179 (WD Pa.1974), aff'd, 515 F.2d 507 (CA 3 1975); Louisville Credit Men's Assn., Inc. v. United States, 73-2 USTC, ¶ 9740 (ED Ky.1970); Tiffany v. United States, 228 F.Supp. 700 (N.J.1963).
14
See, e. g., Sorenson v. United States, 521 F.2d 325, 327 (CA 9 1975). The court reasoned that payment of creditors from personal funds is a willful failure to pay because when personal funds are used for corporate purposes they become corporate funds, and any payment of them to creditors other than the United States is an unlawful preference. That reasoning was unnecessary to the result reached in the case, however. The responsible person there had used personal funds to pay net wages to employees. The finding of liability therefore could have been founded on the failure to collect and withhold taxes as wages were paid. Cf. 26 U.S.C. § 3505.
15
Indeed, the IRS's policy is to augment the personal liability of the responsible person by earmarking the taxes he collects and pays from current wages first to the past due direct corporate employment tax, that is, the employer's share of FICA taxes, thus rendering him liable for trust-fund taxes he thought were paid, but which the Government does not credit as paid. This policy prevails unless the Government is notified in writing that the taxes are to be credited solely to current employment taxes. When payment results from enforced collection methods, however, the IRS nevertheless refuses to honor the designation. IRS Policy Statement P-5-60, IRS Manua , MT 1218-56 (Feb. 25, 1976).
16
There might be cases in which a person would undertake to continue operations knowing of the risk of personal liability, but confident that the prospects for profitability make that risk acceptable. The fact that such risk-taking might occur in marginal cases would not, however, justify a construction of the statute as requiring the risk when to impose it does not further the overall deterrent and tax collection goals of the statute.
17
Section 7501 provides:
"(a) General rule.
"Whenever any person is required to collect or withhold any internal revenue tax from any other person and to pay over such tax to the United States, the amount of tax so collected or withheld shall be held to be a special fund in trust for the United States. The amount of such fund shall be assessed, collected, and paid in the same manner and subject to the same provisions and limitations (including penalties) as are applicable with respect to the taxes from which such fund arose.
"(b) Penalties.
"For penalties applicable to violations of this section, see sections 6672 and 7202."
18
Although the Government primarily relies upon § 6672, it suggests that liability would attach under § 7501, as well, for a breach of the trust
established by that section. Brief for United States 18 n. 6. Petitioner, on the other hand, argues that § 7501 is applicable only to employers, since the applicable definitional section, 26 U.S.C. § 7701(a)(1), defines "person" as "construed to mean and include an individual, a trust, estate, partnership, association, company or corporation," while that applicable to § 6672 defines "person" as including "an officer or employee of a corporation . . . ." 26 U.S.C. § 6671(b). Since we do not decide whether § 7501 establishes a basis of liability applicable to responsible persons independent of § 6672, we need not address these contentions. We decide only that § 7501 properly may be regarded as informing the scope of the duty imposed by § 6672.
19
Section 6321 provides that the lien shall be applicable to "all property and rights to the property, whether real or personal, belonging to such person." (Emphasis added.) We have held that the extent of the tax debtor's interest in the property is determined by state law, and that the lien cannot attach when the debtor has no interest. Aquilino v. United States, 363 U.S. 509, 80 S.Ct. 1277, 4 L.Ed.2d 1365 (1960); United States v. Durham Lumber Co., 363 U.S. 522, 80 S.Ct. 1282, 4 L.Ed.2d 1371 (1960).
20
The basic priority rules for tax liens are established by 26 U.S.C. § 6323, which, in addition to subordinating the federal tax lien to certain perfected security interests, makes superior to the lien, interests of persons who, without actual knowledge of the lien, acquire interests in personal property purchased from retail dealers in the ordinary course of trade, personal property (less than $250) purchased in casual sales, securities, motor vehicles and real property by virtue of a lien for certain local real property and special assessment taxes, or for mechanic's liens. §§ 6323(b)(1) to (7).
21
Section 6323(a) provides:
"The lien imposed by section 6321 shall not be valid as against any purchaser, holder of a security interest, mechanic's lienor, or judgment lien creditor until notice thereof which meets the requirements of subsection (f) has been iled by the Secretary."
22
Section 6323(c) provides that a tax lien is subordinate to a security interest which came into existence after the tax lien filing but which is a "commercial transactions financing agreement . . . protected under local law against a judgment lien arising, as of the time of tax lien filing, out of an unsecured obligation." §§ 6323(c)(1)(A)(i) and (c)(1)(B). (A commercial transactions financing agreement includes accounts receivable and inventory, § 6323(c)(2)(C).)
The local law applicable is, in 49 States and the District of Columbia, the Uniform Commercial Code (UCC); and 26 U.S.C. § 6323, as amended by the Federal Tax Lien Act of 1966, Pub.L.No. 89-719, § 101, 80 Stat. 1125, was in large part adopted in order to "conform the lien provisions of the internal revenue laws to the concepts developed in [the] Uniform Commercial Code." H.R.Rep. No. 1884, 89th Cong., 2d Sess., 1 (1966).
Under the UCC, a perfected security interest is superior to a judgment lien creditor's claim in the property, see UCC §§ 9-301, 9-312. Perfection of a security interest in inventory or accounts receivable occurs only when a financing statement is filed, UCC § 9-302, and when it has attached. U.C.C. § 9-303(1). Attachment requires an agreement, value given by the secured party, and that the debtor have rights in the collateral. UCC § 9-204. Thus when a security agreement exists and filing has occurred prior to the filing of a tax lien to secure advances made after the tax filing, perfection is, at the least, achieved when the secured party makes the advance. When that occurs after the tax lien has been filed, § 6323(d) protects the secured party from the federal tax lien if the advance is made not later than 45 days after the filing of the tax lien or upon receipt of actual notice of the tax lien filing, whichever is sooner. For a more detailed explanation of these provisions see Coogan, The Effect of the Federal Tax Lien Act of 1966 Upon Security Interests Created Under the Uniform Commercial Code, 81 Harv.L.Rev. 1369, 1403-1413 (1968).
23
Decisional law has long established that a purchase-money mortgagee's interest in the mortgaged property is superior to antecedent liens prior in time, see United States v. New Orleans R. Co., 12 Wall. 362, 20 L.Ed. 434 (1871), and, therefore, a federal tax lien is subordinate to a purchase-money mortgagee's interest notwithstanding that the agreement is made and the security interest arises after notice of the tax lien. The purchase-money mortgage priority is based upon recognition that the mortgagee's interest merely reflects his contribution of property to the taxpayer's estate and therefore does not prejudice creditors who are prior in time.
In enacting the Federal Tax Lien Act of 1966, Congress intended to preserve this priority, H.R.Rep. No. 1884, 89th Cong., 2d Sess., 4 (1966), and the IRS has since formally accepted that position. Rev.Rul. 68-57, 68-1 Cum.Bull. 553; see also IRS General Counsel's Op.No. 13-60, 7 CCH 1961 Stand. Fed.Tax Rep. ¶ 6307 (1960).
24
A security interest in accounts may be perfected by filing, UCC § 9-302, while a security interest in cash, except as hereafter noted, can be perfected only by possession. UCC § 9-304(1). When the secured party perfects a security interest in inventory and proceeds, the security interest in accounts which are proceeds is continuously perfected. UCC § 9-306(3)(a). The identifiable cash proceeds are also perfected, but only for a 10-day period. UCC § 9-306(3).
25
The basis for the dissent's contrary construction is that "it is difficult to comprehend why the United States should be precluded from looking to what is probably its best source, the flow of funds coming into business entities, merely because a change in ownership or management has occurred subsequent to the time when the amounts in question were withheld from employees." Post, at 262. We agree that the employer's liability is unaffected by changes in management, and the Government may, under various Code provisions, enforce its lien against any employer asset including the flow of incoming cash. But that does not answer the question before us which is whether § 6672 imposes a penalty on a responsible person for failing to pay over withheld taxes when those taxes had been dissipated before he acceded to control.
| 1112
|
56 L.Ed.2d 275
98 S.Ct. 1795
436 U.S. 268
UNITED STATES, Petitioner,v.Onofre J. SOTELO and Naomi Sotelo.
No. 76-1800.
Argued Feb. 22, 1978.
Decided May 22, 978.
Rehearing Denied June 26, 1978.
See 438 U.S. 907, 98 S.Ct. 3126.
Syllabus
Section 6672 of the Internal Revenue Code of 1954 provides that "[a]ny person required to collect, truthfully account for, and pay over" federal taxes who "willfully fails" to do so, shall be liable to a "penalty" equal to the amount of the taxes in question. Section 17a(1)(e) of the Bankruptcy Act makes nondischargeable in bankruptcy "taxes . . . which the bankrupt has collected or withheld from others . . . but has not paid over." Respondents, husband and wife, were adjudicated bankrupt, as was a corporation in which he was the principal officer and majority stockholder. The bankruptcy court found respondent husband (hereafter respondent) personally liable to the Government under § 6672 for his failure to pay over taxes withheld from employees of the corporation. Subsequently, in proceedings by the Government to collect from respondent on his § 6672 liability, the bankruptcy judge, rejecting respondent's contention that such liability was a "penalty" and as such had been discharged, reasoned that although § 6672 liability was denominated a "penalty," it was in substance a tax, and thus was nondischargeable under § 17a(1), and more particularly § 17a(1)(e). The District Court affirmed. The Court of Appeals reversed. Though recognizing respondent's § 6672 liability, the court held that § 17a(1)(e) was inapplicable because it was not respondent himself but his corporation that was obligated to collect and withhold the taxes, and because in any event the money involved constituted a "penalty," whereas § 17a(1)(e) renders only "taxes" nondischargeable. Held : Respondent's liability under § 6672 is nondischargeable in bankruptcy under § 17a(1)(e). Pp. 273-282.
(a) That respondent was found liable under § 6672 necessarily means that he was "required to collect, truthfully account for, and pay over" the withholding taxes, and that he willfully failed to meet one or more of these obligations. P. 274.
(b) Since the taxes in question were "collected or withheld" from the corporation's employees and have not been "paid over" to the Government, respondent's § 6672 liability was imposed not for his failure to collect taxes but for his failure to pay over taxes that he was required both to collect and to pay over, and therefore he "collected or withheld" the taxes within the meaning of § 17a(1)(e). P. 275. (c) The "penalty" language of § 6672 is not dispositive of the status of respondent's debt under § 17a(1)(e), since the funds involved were unquestionably "taxes" at the time they were "collected or withheld from others," and it is this time period that § 17a(1)(e), with its modification of "taxes" by the phrase "collected or withheld," treats as the relevant one. That the funds due are referred to as a "penalty" when the Government later seeks to recover them does not alter their essential character as taxes for purposes of the Bankruptcy Act, at least where, as here, the § 6672 liability is predicated on a failure to pay over, rather than a failure initially to collect, the taxes. P. 275.
(d) The legislative history of § 17a(1)(e) indicates not only that Congress intended to make nondischargeable the withholding tax obligations of persons in respondent's situation, but also that it meant to ensure post-bankruptcy liability for such taxes in corporate bankruptcy situations (where a corporation's tax liabilities are rendered uncollectable because of its dissolution). Pp. 275-279.
(e) The overall policy of the Bankruptcy Act of giving a bankrupt a "fresh start" cannot override Congre s' specific intent in § 17a(1)(e) to make a liability like respondent's nondischargeable, especially since the contrary result would create an inequity between corporate officers and individual entrepreneurs. Pp. 279-281.
551 F.2d 1090, reversed and remanded.
Stuart A. Smith, Washington, D. C., for petitioner.
Bruce L. Balch, Rock Island, Ill., for respondents.
Mr. Justice MARSHALL delivered the opinion of the Court.
1
This case involves the interaction of sections of the Internal Revenue Code of 1954 and the Bankruptcy Act. Respondent Onofre J. Sotelo was found personally liable to the Government for his failure to pay over taxes withheld from employees of the corporation in which he was the principal officer. The question presented is whether this liability is dischargeable in bankruptcy.
2
* In mid-1973, respondents Onofre J. and Naomi Sotelo were adjudicated bankrupts, as was their corporation, O. J. Sotelo and Sons Masonry, Inc. The individual bankruptcy proceedings of the two Sotelos were consolidated. In November 1973, the Internal Revenue Service filed against respondents' estate a claim in the amount of $40,751.16 "for internal revenue taxes" that had been collected from the corporation's employees but not paid over to the Government. Respondents were alleged to be personally liable for these taxes under Internal Revenue Code § 6672, 26 U.S.C. § 6672, as corporate officers who had a duty "to collect, truthfully account for, and pay over" the taxes and who had "willfully fail[ed]" to make the requisite payments.1 Respondents objected to the Government's claim, arguing that they should not be held personally liable for "taxes of the corporation." Memorandum Opinion of Bankruptcy Court (Nov. 29, 1974).
3
In upholding the Government's claim to the extent of $32,840.71, the bankruptcy court found that Onofre Sotelo had formerly operated the masonry business as a sole proprietorship and that, since the formation of the corporation, he had been its president, director, majority stockholder, and chief executive officer. Naomi Sotelo, on the other hand, though named the corporation's secretary, "did not take an active part in the business." Id. at 1. The court concluded that Onofre Sotelo was personally liable to the Government under Internal Revenue Code § 6672, since he "was charged with the duty and responsibility to see that the [withheld] taxes were paid." Memorandum Opinion, supra, at 3.2 The record does not reflect any appeal of this ruling.
4
In October 1975 the Government, seeking to collect part of the money owed by Onofre Sotelo under § 6672, served a notice of levy on respondents' trustee with regard to $10,000 that belonged to respondents and was not available for general distribution to creditors in bankruptcy.3 Respondents objected to the levy, in part on the ground that the liability is described i § 6672 itself as a "penalty" and as such had been discharged in bankruptcy.4 The Government argued that, to the contrary, the liability was for "taxes," which § 17a(1) of the Bankruptcy Act, 30 Stat. 550, as amended, 11 U.S.C. § 35(a)(1) (1976 ed.), makes nondischargeable. The bankruptcy judge agreed with the Government, reasoning that, "[t]hough denominated a 'penalty,' [the § 6672 liability] is in substance a tax." 76-1 USTC ¶ 9435, p. 84,157 (SD Ill. 1976). The judge also noted, ibid., that subdivision (e) of Bankruptcy Act § 17a(1) makes specifically nondischargeable "taxes . . . which the bankrupt has collected or withheld from others . . . but has not paid over." 11 U.S.C. § 35(a)(1)(e) (1976 ed.). Respondents appealed to the United States District Court for the Southern District of Illinois, which affirmed on the opinion of the bankruptcy court.
5
The United States Court of Appeals for the Seventh Circuit reversed. In re Sotelo, 551 F.2d 1090 (1977). It first noted that "Sotelo does not challenge his liability under 26 U.S.C. § 6672 . . . [but] only argues that the liability should have been discharged by his personal bankruptcy petition." Id., at 1091. The court then held that the liability had been discharged, finding persuasive the fact that § 6672 terms the liability a "penalty" and rejecting the Government's argument with respect to the specific language referring to withholding taxes in Bankruptcy Act § 17a(1)(e). 551 F.2d, at 1092.5 The court recognized that its ruling was in conflict with "an uncontroverted line of cases." Id., at 1091.6
6
We granted certiorari, 434 U.S. 816, 98 S.Ct. 54, 54 L.Ed.2d 72 (1977), and we now reverse.
II
7
Section 17a of the Bankruptcy Act, as amended, 80 Stat. 270, provides in pertinent part:
8
"A discharge in bankruptcy shall release a bankrupt from all of his provable debts, . . . except such as
9
"(1) are taxes which became legally due and owing by the bankrupt to the United States or to any State . . . within three years preceding bankruptcy: Provided, however, That a discharge in bankruptcy shall not release a bankrupt from any taxes . . . (e) which the bankrupt has collected or withheld from others as required by the laws of the United States or any State . . . but has not paid over . . . ." 11 U.S.C. § 35(a) (1976 ed.).
10
Relying on this statutory language, the Government presents what it views as two independent grounds for holding the § 6672 liability of Onofre Sotelo (hereinafter respondent) to be nondischargeable. The Government's primary argument is based on the specific language relating to withholding in § 17a(1)(e); alternatively, it argues that respondent's liability, although called a "penalty," IRC § 6672, is in fact a "tax" as that term is used in § 17a(1).7
11
Regardless of whether these two grounds are in fact independent,8 § 17a(1)(e) leaves no doubt as to the nondischargeability of "taxes . . . which the bankrupt has collected or withheld from others as required by the laws of the United States or any State . . . but has not paid over." The Court of Appeals viewed this provision as inapplicable here for two reasons: first, because "it was not Sotelo himself, but his employer-corporation, that was obligated by law to collect and withhold the taxes"; and second, because in any event the money involved constituted a "penalty," whereas § 17a(1)(e) "renders only 'taxes' nondischargeable." 551 F.2d at 1092. We believe that the first reason is inconsistent with the Court of Appeals' recognition of respondent's undisputed liability under Internal Revenue Code § 6672, and that the second is inconsistent with the language of § 17a(1)(e).
12
The fact that respondent was found liable under § 6672 necessarily means that he was "required to collect, truthfully account for, and pay over" the withholding taxes, and that he willfully failed to meet one or more of these obligations. IRC § 6672; see n. 1, supra.9 Since the § 6672 "require[ment]" of collection presumably derives from federal or state law, both of which are referred to in Bankruptcy Act § 17a(1)(e), it is difficult to understand how the court below could have recognized respondent's § 6672 liability, see supra, at 272, and nonetheless have concluded that he was not "obligated by law to collect . . . the taxes," 551 F.2d, at 1092. It is undisputed here, moreover, that the taxes in question were "collected or withheld" from the corporation's employees and that the taxes, though collected, have not been "paid over" to the Government. It is therefore clear that the § 6672 liability was not imposed for a failure on the part of respondent to collect taxes, but was rather imposed for h § failure to pay over taxes that he was required both to collect and to pay over. Under these circumstances, the most natural reading of the statutory language leads to the conclusion that respondent "collected or withheld" the taxes within the meaning of Bankruptcy Act § 17a(1)(e).
13
We also cannot agree with the Court of Appeals that the "penalty" language of Internal Revenue Code § 6672 is dispositive of the status of respondent's debt under Bankruptcy Act § 17a(1)(e). The funds here involved were unquestionably "taxes" at the time they were "collected or withheld from others." § 17a(1)(e); see IRC §§ 3102(a), 3402(a). It is this time period that § 17a(1)(e), with its modification of "taxes" by the phrase "collected or withheld," treats as the relevant one. That the funds due are referred to as a "penalty" when the Government later seeks to recover them does not alter their essential character as taxes for purposes of the Bankruptcy Act, at least in a case in which, as here, the § 6672 liability is predicated on a failure to pay over, rather than a failure initially to collect, the taxes.
III
14
The legislative history of Bankruptcy Act § 17a(1) provides additional support for the view that respondent's liability should be held nondischargeable. A principal purpose of the legislation, enacted in 1966 after several years of congressional consideration, was to establish a three-year limitation on the taxes that would be nondischargeable in bankruptcy; under former law, there was no such temporal limitation. See H.R.Rep.No. 372, 88th Cong., 1st Sess., 1-3 (1963) (hereafter H.R.Rep.No. 372); S.Rep.No. 114, 89th Cong., 1st Sess., 2-3 (1965) (hereafter S.Rep.No. 114). The new section ensured the discharge of most taxes "which became legally due and owing" more than three years preceding bankruptcy. With regard to unpaid withholding taxes, however, the three-year limitation was made inapplicable by the addition of the provision that is today § 17a(1)(e).
15
This provision was added to the bill to respond to the Treasury Department's position that any discharge of liability for collected withholding taxes was undesirable. The Department's views were expressed in a letter to the Chairman of the House Judiciary Committee from Assistant Secretary of the Treasury Stanley S. Surrey, who indicated that persons other than employer-bankrupts were included within the scope of the Department's
16
"concer[n] with the inequity of granting a taxpayer a discharge of his liability for payment of trust fund taxes which he has collected from his employees and the public in general. . . . The Department does not believe that it is equitable or administratively desirable to permit employers and other persons who have collected money from third parties to be relieved of their obligation to account for an[d] pay over such money to the Government . . . ." Quoted in H.R.Rep.No. 372, p. 6 (emphasis added).
17
Treasury's position was further explained in a letter from the same Department official to the Chairman of the Senate Judiciary Committee; the letter emphasized that it was "most undesirable to permit persons who are charged with the responsibility of paying over to the Federal Government moneys collected from third persons to be relieved of their obligations in bankruptcy when they have converted such moneys for their own use." Quoted in S.Rep.No. 114, p. 10.
18
In response to the Treasury Department's concern, the House Judiciary Committee added an amendment that became § 17a(1)(e). H.R.Rep.No. 372, p. 1. According to the House Report, the amendment was specifically intended to meet "the objection of Treasury to the discharge of so-called trust fund taxes." Id., at 5. In agreeing to the House amendment, the Senate Committee noted that Treasury's "o position" to the bill, to the extent it was based on the fact that responsible persons would have been "relieved of their obligations" for unpaid withholding taxes, was eliminated by the provision that became § 17a(1)(e). S.Rep.No. 114, pp. 6, 10.
19
There is no reason to believe that Congress did not intend to meet Treasury's concerns in their entirety. While the Department may not have focused on the specific question presented here, it left no doubt as to its objection to the discharge of "persons . . . charged with the responsibility of paying over . . . moneys collected from third persons." Letter from Assistant Secretary Surrey to Chairman of Senate Judiciary Committee, supra. Respondent without question is such a person, a point essentially conceded here by virtue of the recognition of respondent's liability under Internal Revenue Code § 6672, see supra, at 274-275, and n. 9. Because Congress specifically contemplated that those with withholding-tax-payment obligations would remain liable after bankruptcy for their "conver[sion]" of the tax funds to private use, S.Rep.No. 114, p. 10,10 we must conclude that the liability here involved is not dischargeable in bankruptcy.
20
Even without these indications of an intent to make nondischargeable the withholding tax obligations of persons in respondent's situation, moreover, Congress' perception of the consequences of corporate bankruptcy makes it most unlikely that the legislature intended § 17a(1)(e) to apply only to the corporation's liability for unpaid withholding taxes. Both the Committee reports and the floor debates contain repeated references to the fact that a corporation "normally ceases to exist upon bankruptcy," H.R.Rep.No. 372, p. 2; see S.Rep.No. 114, p. 2, thereby rendering "uncollectable" the corporation's tax liabilities, 112 Cong.Rec. 13818 (1966) (statement of Sen. Ervin). As one of the bill's principal sponsors observed, corporate dissolution has "the practical effect of discharging all debts including taxes," regardless of statutory declarations of nondischargeability. Id., at 13821 (remarks of Sen. Hruska).11 In view of this congressional assumption, the interpretation of § 17a(1)(e) adopted by the Court of Appeals is untenable, for the combination of corporate dissolution with the personal bankruptcies of those found liable under Internal Revenue Code § 6672 would leave no person within the corporation obligated to the Government for unpaid withholding taxes. Such a result would be directly inconsistent with Congress' declarations that the amendment which became § 17a(1)(e) met the Treasury Department's concern about ensuring post-bankruptcy liability for these taxes.
IV
21
In light of this legislative history, little doubt remains as to the nondischargeability of respondent's liability under § 17a(1)(e). The Court of Appeals did not consider this history, but instead relied on more general policy factors. The court observed that an "inequit[y]" could arise from holding an individual "liable for a tax owed by a corporation" in cases where, because "[t]he corporate liability . . . vastly exceed[s] the individual's present or future resources," his "entire future earnings could be confiscated to compensate for the corporate liability." Such a result, in the court's view, "would contravene the Bankruptcy Act's basic policy of settling a bankrupt's past debts and providing a fresh economic start." 551 F.2d, at 1092-1093.
22
However persuasive these considerations might be in a legislative forum, we as judges cannot override the specific policy judgments made by Congress in enacting the statutory provisions with which we are here concerned. The decision to hold an individual "liable for a tax owed by a corporation," even if there is a wide disparity between the corporation's liability and the individual's resources, was made when Internal Revenue Code § 6672 was passed, since it is that section which imposes the liability without regard for the individual's ability to pay.12 And while it is true that a finding of nondischargeability prevents a bankrupt from getting an entirely "fresh start," this observation provides little assistance in construing a section expressly designed to make some debts nondischargeable. We are not here concerned with the entire Act's policy, but rather with what Congress intended in § 17a(1) and its subdivision (e). The statutory language and legislative history discussed in Parts II and III, supra, demonstrate an intention to make a liability like respondent's nondischargeable.13
23
The Court of Appeals' approach, moreover, would have the effect of allowing a corporation and its officers to escape all liability for unpaid withholding taxes, see supra, at 278-279, while leaving liable for such taxes after bankruptcy those individuals who do business in the sole proprietorship or partnership, rather than the corporate, form.14 In passing § 17a(1), however, Congress was expressly concerned about the fact that the operation of prior law was "unfairly discriminatory against the private individual or the unincorporated small businessman." H.R.Rep.No. 372, p. 2; see S.Rep.No. 114, pp. 2-3. As discussed above, Congress recognized that a bankrupt corporation "dissolves and goes out of business," 112 Cong.Rec. 13817 (1966) (remarks of Sen. Ervin), thereby avoiding IRS tax claims; it was thought inequitable that a sole proprietor or other individual would remain liable after bankruptcy for the same type of claims. See generally sources cited at 278, and n. 11,supra. This inequity between a corporate officer and an individual entrepreneur, both of whom have a similar liability to the Government, frequently would turn on nothing more than whether the individual was "sophisticated" enough "to, in effect, incorporate himself." 112 Cong.Rec. 13817 (1966) (remarks of Sen. Ervin).15 Were we to adopt the Court of Appeals' approach, we would be instituting precisely the kind of "arbitrary discrimination" that § 17a(1) was designed to alleviate. 112 Cong.Rec. 13818 (1966) (statement of Sen. Ervin).16
24
In terms of statutory language and legislative history, then the liability of respondent under Internal Revenue Code § 6672 must be held nondischargeable under Bankruptcy Act § 17a(1)(e). The judgment of the Court f Appeals is, accordingly,
25
Reversed and remanded.
26
Mr. Justice REHNQUIST, with whom Mr. Justice BRENNAN, Mr. Justice STEWART, and Mr. Justice STEVENS join, dissenting.
27
The Government undoubtedly needs the revenues it receives from taxes, but great as that need may be I cannot join the Court's thrice-twisted analysis of this particular statute to gratify it. The issue involved is the dischargeability in the corporate officer's bankruptcy proceedings of taxes which the corporation is obligated to collect and pay over to the Government. In order to conclude that the corporate officer remains liable for this corporate obligation the Court turns to an unlikely source indeed: a 1966 amendment to the Bankruptcy Act, the only apparent purpose of which was to ameliorate the lot of at least some bankrupts, see infra, at 284-285, and n. 1. The Court then proceeds to slog its way to its illogical conclusion by reading a proviso obviously intended to limit dischargeability of the debts of a bankrupt so as to expand that category of debts. It then attempts to bolster this inexplicable interpretation by construing not the legislation which Congress enacted but a letter from the Assistant Secretary of the Treasury not unnaturally opposing any expansion of the dischargeability in bankruptcy of tax-related liabilities. The net result of this perverse approach to an amendment to the Bankruptcy Act is to make nondischargeable a liability which might well have been dischargeable before Congress stepped in to alleviate some of the hardships resulting from the making of the debts of a bankrupt nondischargeable. In the background of this remarkable decision is § 6672 of the Internal Revenue Code which imposes a "penalty" upon a "person required to collect, truthfully account for, and pay over any tax imposed by this title." 26 U.S.C. § 6672. Perhaps recognizing that this provision not only does not support its conclusion but seriously undermines it, the Court not surprisingly attempts to keep this provision in the background, addressing it only obliquely in a footnote where it summarily concludes, again in a remarkable tour de force of linguistics and logic, that a penalty must mean the same thing as a tax. The underlying debt in this case is that of a third person to pay the tax liability of another. I would want far clearer language than can be found in this statute to reach the conclusion that this liability is not dischargeable in the bankruptcy proceedings of that third person. I therefore dissent.
28
As an initial matter, since § 17a(1)(e) of the Bankruptcy Act is a proviso to § 17a(1), I would have thought that respondent would have to fall within the terms of the latter before it is even appropriate to consider whether he falls within the terms of the former. That is, § 17a first provides that a "discharge in bankruptcy shall release a bankrupt from all of his provable debts . . . ." 11 U.S.C. § 35(a) (1976 ed.). It then excepts in § 17a(1) through § 17a(8) eight different categories of debts which are not to be generally discharged, including "taxes which became legally due and owing by the bankrupt to the United States or to any State or any subdivision thereof within three years preceding bankruptcy." 11 U.S.C. § 35(a)(1) (1976 ed.). But this latter exception is itself in turn qualified in § 17a(1)(e): "Provided, however, That a discharge in bankruptcy shall not release a bankrupt from any taxes . . . (e) which the bankrupt has collected or withheld from others as required by the laws of the United States or any State . . . but has not paid over . . . ." 11 U.S.C. § 35(a)(1)(e) (1976 ed.). Thus, the normal reading of § 17a(1) should be to limit the nondischargeability of taxes to only those taxes legally due and owing by the bankrupt within the three years preceding bankruptcy, and the subsections of § 17a(1), including § 17a(1)(e), are to be read as an exception to that limitation. That exception provides that certain of the taxes described in § 17a(1) will not be discharged even if more than three years old; they will be nondischargeable without regard to time. Normal statutory construction would thus suggest that the first inquiry should be whether the liability in question is a tax legally due and owing by the bankrupt. Only if it is, would it become necessary to consider whether it is also a tax collected from others but not paid over.
29
That this is the correct reading of the statute is further buttressed by the legislative history. All the Committees which reported on the 1966 amendment to § 17a stressed that its central purpose was to enable at least some bankrupts to more nearly achieve the fresh start promised by the Bankruptcy Act. The Senate Committee on Finance, for example, in discussing the purpose of the proposed amendment, agreed with the House Committee on the Judiciary "that present law, by denying any discharge of taxes, presents a substantial deterrent to one fundamental policy of the Bankruptcy Act—effective rehabilitation of the bankrupt." S.Rep. No. 999, 89th Cong., 2d Sess., 9 (1966). The Senate Committee went on to suggest slightly different methods from those advanced by the Judiciary Committee to achieve this goal, but its Report, like the others, leaves no doubt that the central purpose of the amendment was to make the Act more favorable to at least some bankrupts by limiting, with only a few specified exceptions, the nondischargeability of taxes to only those due for the prior three years.
30
This avowed legislative purpose only heightens the incongruity of the Court's interpretation. The statute's major purpose was to limit the nondischargeability of certain debts. And yet the Court holds today that the enactment of § 17a(1)(e) of that statute results in a nondischargeable debt without regard to whether that debt would have been totally nondischargeable before the passage of § 17a(1)(e)—that is, without the slightest attention to the question of whether it is a tax legally due and owing by the bankrupt within the meaning of § 17a(1). Thus, by passing a statute with a basically beneficent purpose, Congress has, according to the Court, not only made nondischargeable a liability which could potentially run into the hundreds of thousands of dollars but may have worsened, rather than bettered, the lot of the bankrupt.1
31
Finally, even if the language and the history of this statute were less clear, I would hesitate to depart from our longstanding tradition of reading the Bankruptcy Act with an eye to its fundamental purpose—the rehabilitation of bankrupts. This has always led the Court, at least until today, to construe narrowly any exceptions to the general discharge provisions. See, e. g., Gleason v. Thaw, 236 U.S. 558, 562, 35 S.Ct. 287, 289, 59 L.Ed. 717 (1915). Admittedly § 17a is not "a compassionate section for debtors," Bruning v. United States, 376 U.S. 358, 361, 84 S.Ct. 906, 908, 11 L.Ed.2d 772 (1964), but even it must be read consistently with the doctrine of Gleason, supra. And I simply cannot see anything in this case which justifies the Court in departing from this tradition by straining to read into the statute an exception to the dischargeability provisions that was not clearly there before this amendment was passed, when the very purpose of the amendment which the Court is now construing was intended to be benevolent, at least from the bankrupt's perspective.
32
Thus, the initial question which should have been addressed by the Court today is whether the amounts for which respondent is liable are "taxes legally due and owing by the bankrupt." If they are not, then the further question of whether they are nondischargeable in their entirety under § 17a(1)(e) does not even arise. And I see nothing which persuades me that respondent's liability is a "tax" legally due and owing by him. Neither the Government nor the Court points to any section of the Internal Revenue Code which makes a corporate employee liable for the taxes which the corporate employer is required to withhold from the employees' paychecks. Sections 3102, 3402, or 3403 of the Internal Revenue Code certainly cannot be read to do this because by their unmistakable terms they impose a duty and liability only upon an "employer," which a corporate employee, regardless of his rank within the corporate hierarchy, clearly is not.
33
Neither can § 6672 of the Internal Revenue Code serve the purpose. The liability imposed therein is specifically denominated a "penalty" and, absent any indication to the contrary, Congress is presumed to know the meaning of the words it uses, especially in highly complex and intricate statutory schemes. Indeed, in another letter sent by Assistant Secretary of Treasury Surrey to the Chairman of the House Committee on the Judiciary when that Committee was considering what eventually became § 17a(1), the following was specifically brought to the Committee's attention:
34
"It is further believed by the Department that this bill is intended to discharge not only taxes but also penalties and interest. However, the bill makes reference only to taxes. In this connection, it is pertinent to point out that the U.S. Court of Appeals for the 10th Circuit in the case of United States v. Mighell (C.A. 10th, 1959) 273 F.2d 682, held that the word 'taxes' in section 17 of the Bankruptcy Act (11 U.S.C. 35) does not include penalties and, by inference, interest. This apparent ambiguity could cause future litigation." H.R.Rep. No. 687, 89th Cong., 1st Sess., 7 (1965).
35
And yet Congress did not modify § 17a(1) to include penalties. (I normally would not accord such passing references any weight, but the contrary practice seems today de rigueur. Ante, at 276-277.)
36
The history of § 6672 further bears out the notion that this always has been considered by Congress to be a "penalty," and not a "tax." For example, § 1004 of the War Revenue Act of 1917, an early predecessor of § 6672, provided that anyone who failed to make a return required by the Act or otherwise evaded any tax imposed by the Act or failed to collect and pay over any such tax was subject to "a penalty of double the tax evaded" in addition to other penalties, such as a $1,000 fine and imprisonment. 40 Stat. 325. Indeed, even today the subchapter heading under which § 6672 is found is titled "Assessable Penalties."
37
Finally the very existence of § 6672 bears testimony to the fact that there is no other section of federal law which makes the employee charged with the duty of collecting withholding taxes liable for those "taxes." If there were such a section, § 6672 would be unnecessary. But it is the absence of such other provision which is dispositive of this case in my opinion.2
38
Instead of adopting the course which seems compelled by the structure and history of § 17a(1), however, the Court has chosen today a very different course. It does give a passing nod to the question of whether one might have to satisfy § 17a(1) before reaching § 17a(1)(e), but then dismisses it in rather desultory fashion in a footnote, noting only that "there is no reason to believe that any 'taxes' made nondischargeable by the specific terms of § 17a(1)(e) would not also be 'taxes' as that word is used more generally in § 17a(1)." Ante, at 274 n. 8. The Court then goes on to interpret § 17a(1) in light of its limiting provision, § 17a(1)(e), instead of the other way around, a tour de force which compels admiration if not agreement. The critical, and indeed only, question for the Court then becomes whether respondent was "required" to collect and pay over the taxes. Finding that respondent was so required within the meaning of § 6672 of the IRC, the Court concludes he falls within the language of § 17a(1)(e) and that is the end of the matter.
39
The justifications for engaging in this unorthodox method of statutory construction are supposedly threefold, but are, in my opinion, far from satisfactory. First, the Court asserts that respondent's liability is clearly encompassed within the plain terms of § 17a(1)(e). But as indicated above such liability is encompassed within the terms of § 17a(1)(e) only if we ignore both the structure and purpose of the statute and proceed directly to § 17a(1)(e) without considering whether § 17a(1) is first satisfied.
40
The Court next relies on certain concerns expressed by the Treasury Department in a letter from the Assistant Secretary to the Chairman of the House Judiciary Committee. No doubt § 17a(1)(e) was included partially in response to that letter. But there is certainly nothing contained in that or any other provision to indicate that in adding § 17a(1)(e) Congress also intended to extend the concept of "taxes" in § 17a(1) to include the 100% penalty imposed by § 6672 or to encompass a corporate official's responsibility (presumably under the corporate charter and state law) to collect and pay over federal withholding taxes. The Court emphasizes the phrase "and other persons" in the letter and then observes that "[t]here is no reason to believe that Congress did not intend to meet Treasury's concerns in their entirety." Ante, at 277. But emphasizing that phrase to the exclusion of the rest of the letter and the language and structure of the statute places a weight upon that phrase which it cannot bear. Indeed, one could reach a much different conclusion by simply emphasizing other parts of the letter, such as the Department's
41
"concer[n] with the inequity of granting a taxpayer a discharge of his liability for payment of trust fund taxes which he has collected from his employees . . . ." (Emphasis supplied.) H.R.Rep. No. 372, 88th Cong., 1st Sess., 6 (1963).
42
And even the Court recognizes that "the Department may not have focused on the specific question presented here . . . ." Ante, at 277. But most importantly, when interpreting the Bankruptcy Act in general, with its fundamental goal of rehabilitating bankrupts, and when interpreting this provision in particular, with its avowed purpose of furthering that basic goal of the Act, the Court is not entitled to make the presumption that it does. Rather, in the absence of a clear congressional expression to the contrary, there is every reason to believe that Congress did not intend to make nondischargeable in the employee's bankruptcy proceedings a tax which is legally due and owing not by the bankrupt employee, but by the employer.
43
Finally, the Court emphasizes the fact that corporations often dissolve upon bankruptcy, thus making all corporate debts dischargeable in fact if not in form. Ante, at 278. Thus, reasons the Court, it is "most unlikely that the legislature intended § 17a(1)(e) to apply only to the corporation's liability for unpaid withholding taxes." Ibid. But clearly Congress, had it really intended to alleviate the problem to which the Court refers, could and hopefully would have used language more suited to the purpose. It is also incongruous to impute the intent to Congress to make this particular liability nondischargeable as to the employee because the corporation will dissolve upon bankruptcy and yet to make no other corporate liability nondischargeable as to the employee even though dissolution of the corporation is just as likely in those cases. Such a statutory scheme not only seems at odds with the basic notion of what a corporation is all abut, i. e., limited liability, but it also imposes a potentially crushing liability on corporate officials—a liability that is nondischargeable in its entirety and virtually in perpetuity. I certainly would not impute such an intent to Congress without a much clearer statutory directive.
44
While the lifelong liability which the Court imposes today falls on the shoulders of one who was the chief executive officer of a small family business, there is unfortunately nothing in the Court's reasoning which would prevent the same liability from surviving bankruptcy in the case of a comptroller, accountant, or bookkeeper who reaped none of the fruits of entrepreneurial success other than continued employment in the corporation, and in some cases possibly not even that, see n. 3, infra. So long as the Government in its zeal for the collection of the revenue may persuade a bankruptcy court that a corporate employee comes within the Court's Delphic construction of 26 U.S.C. § 6672 and 11 U.S.C. § 35(a)(1)(e) (1976 ed.), such a person will be denied the "fresh start" which Congress clearly intended to enhance by the 1966 amendments to the Bankruptcy Act.3 Before the Government may randomly sweep such persons into a net whereby they are denied a discharge, not of their own tax liability but of a penalty imposed upon them for failure to pay over taxes which had been withheld by another, I would at least insist on a statute which seemed to point in that direction, rather than in the opposite one.
1
Internal Revenue Code § 6672, 26 U.S.C. § 6672, provides:
"Any person required to collect, truthfully account for, and pay over any tax imposed by this title who willfully fails to collect such tax, or truthfully account for and pay over such tax, or willfully attempts in any manner to evade or defeat any such tax or the payment thereof, shall, in addition to other penalties provided by law, be liable to a penalty equal to the total amount of the tax evaded, or not collected, or not accounted for and paid over."
Section 6671(b) of the Code makes clear that "[t]he term 'person,' as used in [§ 6672], includes an officer or employee of a corporation . . . who . . . is under a duty to perform the act in respect of which the violation occurs." Section 6671(a) states that the § 6672 penalty "shall be assessed and collected in the same manner as taxes."
2
Naomi Sotelo was found not to be liable, but the bankruptcy judge noted that this finding was "immaterial" in view of the merger of the estates. Memorandum Opinion of Bankruptcy Court 3 (Nov. 29, 1974).
3
This $10,000 was derived from the trustee's sale of real estate held by respondents as joint tenants, and would have been payable to one or both of respondents had it not been for the Government's claim. The trustee set aside the $10,000 as a "homestead exemption" for Onofre Sotelo only, apparently pursuant to Illinois law. Respondents argued below that the entire $10,000 belonged to Naomi Sotelo, who did not have any § 6672 liability, see n. 2, supra. In response to this contention, the bankruptcy court stated: "[T]he law is clearly established in Illinois that where a husband and wife own property as joint tenants and reside together on the PREMISES . . . THE HUSBAND . . . alone is entitled to the homestead Exemption." 76-1 USTC ¶ 9435, p. 84,156 (SD Ill. 1976). The bankruptcy court upheld this Illinois rule against respondents' constitutional attack. Id., at 84,157-84,158.
4
Respondents' theory apparently was that the § 6672 penalty is compensatory in nature. The Government does not here dispute that a compensatory penalty is generally dischargeable. See Brief for United States 26-27, and n. 16. See generally Bankruptcy Act § 57j, 11 U.S.C. § 93(j); 8 H. Remington, A Treatise on the Bankruptcy Law of the United States § 3304 (6th ed. J. Henderson 1955).
5
Respondents raised their homestead exemption argument, see n. 3, supra, in the Court of Appeals, but that court believed that it did not have to reach the issue in view of its holding that the entire § 6672 liability was dischargeable, 551 F.2d at 1093 n. 3. The Government contends here that the issue should have been reached regardless of the dischargeability holding, because Bankruptcy Act § 17a(1) makes a discharge irrelevant to the Government's right to proceed "against the exemption of the bankrupt allowed by law and duly set apart to him," 11 U.S.C. § 35(a)(1) (1976 ed.). Brief for United States 33-34, n. 23. In view of our holding that the § 6672 liability is not dischargeable, we need not address this contention. On remand, of course, the Court of Appeals may consider respondents' argument that some or all of the homestead exemption belongs to Naomi Sotelo.
6
In addition to several District Court cases, the Court of Appeals cited the conflicting holding of the Fifth Circuit in Murphy v. U. S. Internal Revenue § rvice, 533 F.2d 940 (1976). The Murphy decision was followed by the Fourth Circuit in Lackey v. United States, 538 F.2d 592 (1976).
7
The Government contends, and respondent does not disagree, that the three-year limitation in Bankruptcy Act § 17a(1) would not bar any part of the Government's claim in this case. Brief for United States 25-26, n. 15.
8
The specific language of Bankruptcy Act § 17a(1)(e) is contained within a proviso that modifies the more general approach of § 17a(1). Both the general language and the proviso are aimed at making "taxes" nondischargeable, and there is no reason to believe that any "taxes" made nondischargeable by the specific terms of § 17a(1)(e) would not also be "taxes" as that word is used more generally in § 17a(1).
9
As in the Court of Appeals, see supra, at 272, respondent does not here question his liability under Internal Revenue Code § 6672. Brief for Respondents 4.
10
See also Marsh, Triumph or Tragedy? The Bankruptcy Act Amendments of 1966, 42 Wash.L.Rev. 681, 694 (1967):
"It is a common phenomenon of business failure that even an 'honest' businessman, in attempting to salvage a business which appears headed for insolvency, will frequently 'borrow' money of other people without their consent if he can get his hands on it. The one fund which he is almost always able to lay his hands on is the taxes he has withheld and is currently withholding from his employees for the Government."
A recent statement to the same effect can be found in an opinion of the Comptroller General of the United States: "IRS considers delinquencies in the payment of these employment taxes a serious problem. In 1976 [congressional] testimony . . . , IRS officials expressed concern that employers use withheld taxes as low interest loans from the Federal Government." Opinion B-137762 (May 3, 1977), reprinted in 9 CCH 1977 Stand. Fed. Tax Rep. ¶ 6614, p. 71,438.
11
See also, e. g., 112 Cong.Rec. 13817 (1966) (remarks of Sen. Ervin); id., at 13821 (letter to Senators from Sens. Ervin and Hruska); id., at 13822 (remarks of Sen. Hruska); letter from Under Secretary of Commerce Edward Gudeman, reprinted in S.Rep.No. 114 p. 12; memorandum from W. Randolph Montgomery, Chairman of the National Bankruptcy Conference, reprinted id., at 16; S.Rep.No. 1134, 88th Cong., 2d Sess., 2 (1964); H.R.Rep.No. 735, 86th Cong., 1st Sess., 2 (1959).
12
Rather than predicating liability on ability to pay, § 6672 is based on the premise that liability should follow responsibility. See n. 13, infra. In a recent survey of IRS practices with regard to § 6672, the Comptroller General of the United States wrote:
"IRS uses the 100-percent penalty only when all other means of securing the delinquent taxes have been exhausted. It is generally used against responsible officials of corporations that have gone out of business . . . . [I]t is IRS policy that the amount of the tax will be collected only once. After the tax liability is satisfied, no collection action is taken on the remaining 100-percent penalties." Opinion B-137762, supra, n. 10, at 71,438.
13
Our dissenting Brethren appear uncomfortable with this legislative policy choice, expressing concern about "lifelong liability" being imposed on "a comptroller, accountant, or bookkeeper who reaped none of the fruits of entrepreneurial success." Post, at 290, 291. While we should not in any event be led by our sympathy to a result contrary to that intended by Congress, there is here little reason for concern. No corporate officer, regardless of title, can be held liable under Internal Revenue Code § 6672 unless his position was sufficiently important that he was "required to collect, truthfully account for, and pay over" withholding taxes and unless he "willfully fail[ed]" to meet one or more of these obligations. In this case, for example, Onofre Sotelo, the chief executive officer exercising actual authority over the corporation's day-to-day affairs, was found liable under the section, while Naomi Sotelo was not, despite the fact that she held the position of corporate secretary. See supra, at 270-271, and n. 2.
The dissenting opinion as much as concedes, moreover, that there is no responsible corporate officer who can be said to reap "none of the fruits of entrepreneurial success," since all employees are dependent on the corporation for their "continued employment." Post, at 291 (emphasis added); see post, at 291-292, n. 3. The "continued employment" of a corporate officer is obviously a benefit of considerable significance to that officer and is generally dependent upon the success of the corporate enterprise. Hence an officer has a stake in "the fruits of entrepreneurial success" and, like a shareholder, may be tempted illegally to divert to the corporation those funds withheld from corporate employees for tax purposes.
14
Such individuals would be liable after bankruptcy for "taxes" which they, as employers, "collected or withheld from others . . . but [did] not pa[y] over." Bankruptcy Act § 17a(1)(e), 11 U.S.C. § 35(a)(1)(e) (1976 ed.).
15
Indeed, respondent's business was operated as a sole proprietorship prior to September 1970. See supra, at 270-271; Memorandum Opinion of the Bankruptcy Court, supra, n. 2, at 1.
16
The dissenting opinion recognizes, post, at 285 n. 1, Congress' unquestioned concern about eliminating corporations' "unfair" advantage over individual entrepreneurs. H.R.Rep.No. 372, p. 2; S.Rep.No. 114, supra, pp. 2-3. Elsewhere our Brother REHNQUIST appears to concede that Congress meant "to ameliorate the lot" of only "some bankrupts" when it passed the 1966 amendment to the Bankruptcy Act. Post, at 282; see post, at 285. There is every indication that the 1966 amendment was not intended "to ameliorate the lot" of corporations and their principal officers, at least with regard to taxes collected from employees. And the dissenting opinion has not even attempted to explain how a Congress concerned about "discriminat[ion] against the private individual or the unincorporated small businessman," H.R.Rep.No. 372, p. 2; S.Rep.No. 114, pp. 2-3, could have thought it just to relieve corporate officers of § 6672 liability in bankruptcy, as the dissent's approach would do, while leaving other owners of "small family business[es]," post, at 291—those who happen to operate through noncorporate entities—subject to the same kind of liability.
1
The Court may well be correct in its observation that when Congress enacted these amendments it was "concerned about 'discriminat[ion] against the private individual or the unincorporated small businessman,' H.R.Rep. No. 372, p. 2; S.Rep. No. 114, pp. 2-3," ante, at 282 n. 16. And this observation in turn may support the conclusion that Congress, with an eye to reducing this supposed discrimination, intended to ameliorate the lot of only those individuals who operate through noncorporate entities. But I find absolutely nothing in the legislative history to indicate that Congress also intended to reduce this supposed discrimination between those who operate through corporations and those who do not by affirmatively worsening the lot of the former. Thus, I still search the Court's opinion in vain for any justification for reading an amendment which was intended to limit the dischargeability of the debts of bankrupts, albeit only a limited class of bankrupts, so as to expand that category of debts with respect to another class of bankrupts.
2
There are lower court cases to the contrary. See cases cited ante, at 273 n. 6. This line of authority can be traced to Botta v. Scanlon, 314 F.2d 392 (CA2 1963), however, where the plaintiff sought an injunction against the Internal Revenue Service to restrain the collection of the penalty imposed under § 6672. The court denied the injunction on the authority of the Anti-Injunction Act, which provides in pertinent part: "[N]o suit for the purpose of restraining the . . . collection of any tax shall be maintained in any court . . . ." 26 U.S.C. § 7421(a). The court held that this section applied to § 6672 penalties as well as taxes because § 6671(a) of the Code provides: "[A]ny reference in this title to 'tax' imposed by this title shall be deemed also to refer to the penalties . . . provided by this subchapter." 26 U.S.C. § 6671(a). But while there is clear statutory authority for treating a § 6672 penalty as a tax for purposes of administering the Internal Revenue Code, there is no authority for treating such a penalty as a tax for purposes of the Bankruptcy Act. Indeed, the fact that Congress clearly recognized the need to specify that a penalty was a tax for purposes of the Internal Revenue Code strongly suggests that its failure to so specify with respect to the Bankruptcy Act was not an inadvertent omission.
3
The Court's lack of concern for the potentially crushing liability it imposes on bankrupts is nowhere more evident than ante, at 280 n. 13, where the Court notes that "[n]o corporate officer, regardless of title, can be held liable under Internal Revenue Code § 6672 unless his position was sufficiently important that he was 'required to collect, truthfully account for, and pay over' withholding taxes and unless he 'willfully fail[ed]' to meet one or more of these obligations." While I certainly do not dispute that observation, it does absolutely nothing to allay my fear that this liability can be imposed on a variety of salaried corporate employees who enjoy none of the fruits of enterpreneurial success other than their continued employment. The Federal Reporter is replete with cases in which just such individuals have been held liable under § 6672. See, e. g., Adams v. United States, 504 F.2d 73 (CA7 1974) (the court held that an employee of a lending institution, who had been placed in charge of a corporation to which the institution had loaned money, could be liable under § 6672 for failure to pay over withholding taxes collected from the corporation's employees, regardless of the fact that he held no stock or other interest in the corporation); Mueller v. Nixon, 470 F.2d 1348 (CA6 1972) (same); Turner v. United States, 423 F.2d 448 (CA9 1970) (employee of a bank, who had been made an officer of a company as a condition of a loan made to the company, could be liable under § 6672 for failure to pay over withholding taxes collected from the company's employees). Indeed, it appears to be agreed by the Courts of Appeals that a person need not be a shareholder to be held accountable as a responsible person under § 6672. See, e. g., Anderson v. United States, 561 F.2d 162, 165 (CA8 1977); Hartman v. United States, 538 F.2d 1336, 1340 (CA8 1976); Haffa v. United States, 516 F.2d 931, 935-936 (CA7 1975).
| 1112
|
436 U.S. 293
98 S.Ct. 1808
56 L.Ed.2d 293
William PINKUS, dba "Rosslyn News Company" and "Kamera," Petitioner,v.UNITED STATES.
No. 77-39.
Argued Feb. 28, 1978.
Decided May 23, 1978.
Syllabus
Petitioner was convicted of mailing obscene materials and advertising brochures for such materials in violation of 18 U.S.C. § 1461 (1976 ed.), and the Court of Appeals affirmed. Since the materials were mailed prior to 1973, he was tried under the standards of Roth v. United States, 354 U.S. 476, 77 S.Ct. 1304, 1 L.Ed.2d 1498, and Memoirs v. Massachusetts, 383 U.S. 413, 86 S.Ct. 975, 16 L.Ed.2d 1 rather than under those of Miller v. California, 413 U.S. 15, 93 S.Ct. 2607, 37 L.Ed.2d 419. He claims that the trial court's instructions to the jury were improper because they included children and sensitive persons within the definition of the community by whose standards obscenity was to be judged; charged that members of deviant sexual groups could be considered in determining whether the materials appealed to prurient interest in sex; and also charged that pandering could be considered in determining whether the materials were obscene. Held :
1. Children are not to be included as part of the "community" as that term relates to the "obscene materials" proscribed by § 1461, and hence it was error to instruct the jury that children are part of the relevant community. A jury conscientiously striving to define such community, the "average person," by whose standards obscenity is to be judged, might very well reach a much lower "average" when children are part of the equation than it would if it restricted its consideration to the effect of allegedly obscene materials on adults. Pp. 296-298.
2. However, inclusion of "sensitive persons" in the charge advising the jury of whom the community consists was not error. In the context of this case, the community includes all adults who compose it, and a jury can consider them all in determining the relevant community standards, the vice being in focusing upon the most susceptible or sensitive members rather than in merely including them, as the trial court did, along with all others in the community. Pp. 298-301.
3. Nor was the instruction as to devia t groups improper. Nothing prevents a court from giving an instruction on prurient appeal to such groups as part of an instruction pertaining to appeal to the average person when the evidence, as here, would support such a charge. Pp. 301-3035. 4. The pandering instruction, which permitted the jury to consider the touting descriptions in the advertising brochures, along with the materials themselves, to determine whether the materials were intended to appeal to the recipient's prurient interest in sex, i. e., whether they were "commercial exploitation of erotica solely for the sake of their prurient appeal," Ginzburg v. United States, 383 U.S. 463, 466, 86 S.Ct. 942, 945, 16 L.Ed.2d 31, was proper in light of the evidence. To aid a jury in determining whether materials are obscene, the methods of their creation, promotion, or dissemination are relevant. P. 303-304.
551 F.2d 1155, reversed and remanded.
Bernard A. Berkman, Cleveland, Ohio, for petitioner.
Jerome M. Feit, 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 court's instructions in a trial for mailing obscene materials prior to 1973, and therefore tried under the Roth-Memoirs standards, could properly include children and sensitive persons within the definition of the community by whose standards obscenity is to be judged. We are also asked to determine whether the evidence supported a charge that members of deviant sexual groups may be considered in determining whether the materials appealed to prurient interest in sex; whether a charge of pandering was proper in light of the evidence; and whether comparison evidence proffered by petitioner should have been admitted on the issue of contemporary community standards.
2
Petitioner was convicted after a jury trial in United States District Court on 11 counts, charging that he had mailed obscene materials and advertising brochures for obscene materials in violation of 18 U.S.C. § 1461 (1976 ed.).1 On appeal, his conviction was reversed on the grounds that the instructions to the jury defining obscenity had been cast under the standards established in Miller v. California, 413 U.S. 15, 93 S.Ct. 2607, 37 L.Ed.2d 419 (1973), although the offenses charged occurred in 1971 when the standards announced in Roth v. United States, 354 U.S. 476, 77 S.Ct. 1304, 1 L.Ed.2d 1498 (1957), and particularized in Memoirs v. Massachusetts, 383 U.S. 413, 86 S.Ct. 975, 16 L.Ed.2d 1 (1966), were applicable. Accordingly, the case was remanded to the District Court for a new trial under the standards controlling in 1971. No. 73-2900 (CA9 Feb. 5, 1975, rehearing denied May 13, 1975); see Marks v. United States, 430 U.S. 188, 97 S.Ct. 990, 51 L.Ed.2d 260 (1977).
3
On retrial in 1976, petitioner was again convicted on the same 11 counts. He was sentenced to terms of four years' imprisonment on each count, the terms to be served concurrently, and fined $500 on each count, for a total fine of $5,500. The Court of Appeals affirmed. 551 F.2d 1155 (CA9 1977).
4
* The evidence presented by the Government in its case in chief consisted of materials mailed by the petitioner accompanied by a stipulation of facts which, among other things, recited that petitioner, knowing the contents of the mailings,2 had "voluntarily and intentionally" used the mails on 11 occasions to deliver brochures illustrating sex books, magazines, and films, and to deliver a sex magazine (one count) and a sex film (one count), with the intention that these were for the personal use of the recipients. From the stipulation and the record, it appears undisputed that the recipients were adults who resided b th within and without the State of California. Because of the basis of our disposition of this case, it is unnecessary for us to review the contents of the exhibits in detail.
5
The defense consisted of expert testimony and surveys offered to demonstrate that the materials did not appeal to prurient interest, were not in conflict with community standards, and had redeeming social value. Two films were proffered by the defense for the stated purpose of demonstrating that comparable material had received wide box office acceptance, thus demonstrating that the materials covered by the indictment were not obscene and complied with community standards.
6
As a rebuttal witness, the Government presented an expert who testified as to what some of the exhibits depicted and that in his opinion they appealed to the prurient interest of the average person and to that of members of particular deviant groups.
II
7
In this Court, as in the Court of Appeals, petitioner challenges four parts of the jury instructions and the trial court's rejection of the comparison films.
A. Instruction as to Children
8
Petitioner challenges that part of the jury instruction which read:
9
"In determining community standards, you are to consider the community as a whole, young and old, educated and uneducated, the religious and the irreligious, men, women and children, from all walks of life." (Emphasis added.) The Court of Appeals concluded that the inclusion of children was "unnecessary" and that it would "prefer that children be excluded from the court's [jury] instruction until the Supreme Court clearly indicates that inclusion is proper." 551 F.2d, at 1158. It correctly noted that this Court had been ambivalent on this point, having sustained the conviction in Roth, supra, where the instruction included children, and having intimated later in Ginzburg v. United States, 383 U.S. 463, 465 n.3, 86 S.Ct. 942, 944, 16 L.Ed.2d 31 (1966), that it did not necessarily approve the inclusion of "children" as part of the community instruction.3
10
Reviewing the charge as a whole under the traditional standard of review, cogent arguments can be made that the inclusion of children was harmless error, see Hamling v. United States, 418 U.S. 87, 107, 94 S.Ct. 2887, 2902, 41 L.Ed.2d 590 (1974); however, the courts, the bar, and the public are entitled to greater clarity than is offered by the ambiguous comment in Ginzburg on this score. Since this is a federal prosecution under an Act of Congress, we elect to take this occasion to make clear that children are not to be included for these purposes as par of the "community" as that term relates to the "obscene materials" proscribed by 18 U.S.C. § 1461 (1976 ed.). Cf. Cupp v. Naughten, 414 U.S. 141, 146, 94 S.Ct. 396, 400, 38 L.Ed.2d 368 (1973).
11
Earlier in the same Term in which Roth was decided, the Court had reversed a conviction under a state statute which made criminal the dissemination of a book "found to have a potentially deleterious influence on youth." Butler v. Michigan, 352 U.S. 380, 383, 77 S.Ct. 524, 525, 1 L.Ed.2d 412 (1957). The statute was invalidated because its "incidence . . . is to reduce the adult population . . . to reading only what is fit for children." Ibid. The instruction given here, when read as a whole, did not have an effect so drastic as the Butler statute. But it may well be that a jury conscientiously striving to define the relevant community of persons, the "average person," Smith v. United States, 431 U.S. 291, 304, 97 S.Ct. 1756, 1765, 52 L.Ed.2d 324 (1977), by whose standards obscenity is to be judged would reach a much lower "average" when children are part of the equation than it would if it restricted its consideration to the effect of allegedly obscene materials on adults. Cf. Ginsberg v. New York, 390 U.S. 629, 88 S.Ct. 1274, 20 L.Ed.2d 195 (1968). There was no evidence that children were the intended recipients of the materials at issue here, or that petitioner had reason to know children were likely to receive the materials. Indeed, an affirmative representation was made that children were not involved in this case.4 We therefore conclude it was error to instruct the jury that they were a part of the relevant community, and accordingly the conviction cannot stand.
12
It does not follow, however, as petitioner contends, that the inclusion of "sensitive persons" in the charge advising the jury of whom the community consists was error. The District Court's charge was:
13
"Thus the brochures, magazines and film are not to be judged on the basis of your personal opinion. Nor are they to be judged by their effect on a particularly sensitive or insensitive person or group in the community. You are to judge these materials by the standard of the hypothetical average person in the community, but in determining this average standard you must include the sensitive and the insensitive, in other words, you must include everyone in the community." (Emphasis added.)
14
Petitioner's reliance on passages from Miller, 413 U.S., at 33, 93 S.Ct., at 2619, and Smith v. United States, supra, 431 U.S., at 304, 97 S.Ct., at 1765, for the proposition that inclusion of sensitive persons in the relevant community was error is misplaced. In Miller we said,
15
"[T]he primary concern with requiring a jury to apply the standard of 'the average person, applying contemporary community standards' is to be certain that, so far as material is not aimed at a deviant group, it will be judged by its impact on an average person, rather than a particularly susceptible or sensitive person—or indeed a totally insensitive one. See Roth v. United States, supra, 354 U.S., at 489, 77 S.Ct., at 1311."
16
This statement was essentially repeated in Smith:
17
"[T]he Court has held that § 1461 embodies a requirement that local rather than national standards should be applied. Hamling v. United tates, 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." (Footnote omitted.)
18
The point of these passages was to emphasize what was an issue central to Roth, that "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." 354 U.S., at 489, 77 S.Ct., at 1311.5 But nothing in those opinions suggests that "sensitive" and "insensitive" persons, however defined, are to be excluded from the community as a whole for the purpose of deciding if materials are obscene. In the narrow and limited context of this case, the community includes all adults who constitute it, and a jury can consider them all in determining relevant community standards. The vice is in focusing upon the most susceptible or sensitive members when judging the obscenity of materials, not in including them along with all others in the community. See Mishkin v. New York, 383 U.S. 502, 508-509, 86 S.Ct. 958, 963, 16 L.Ed.2d 56 (1966).
19
Petitioner relies also on Hamling v. United States, 418 U.S. 87, 94 S.Ct. 2887, 41 L.Ed.2d 590 (1974), to support his argument. Like Miller and Smith, supra, though, Hamling merely restated the by now familiar rule that jurors are not to base their decision about the materials on their "personal opinion nor by its effect on a particularly sensitive or insensitive person or group." 418 U.S., at 107, 94 S.Ct., at 2902. It is clear the trial court did not instruct the jury to focus on sensitive persons or groups. It explicitly said the jury should not use sensitive persons as a standard, and emphasized that in determining the "average person" standard the jury "must include the sensitive and the insensitive, in other words . . . everyone in the community."
20
The difficulty of framing charges in this area is well recognized. But the term "average person" as used in this charge means what it usually means, and is no less clear than "reasonable person" used for generations in other contexts. Cf. Hamling v. United States, supra, at 104-105, 94 S.Ct., at 2900-2901. Cautionary instructions to avoid subjective personal and private views in determining community standards can do no more than tell the individual juror that in evaluating the hypothetical "average person" he is to determine the collective view of the community, as best as it can be done.
21
Simon E. Sobeloff, then Solicitor General, later Chief Judge of the United States Court of Appeals for the Fourth Circuit, very aptly stated the dilemma:
22
"Is the so-called definition of negligence really a definition? What could be fuzzier than the instruction to the jury that negligence is a failure to observe that care which would be observed by a 'reasonable man'—a chimerical creature conjured up to give an aura of definiteness where definiteness is not possible. . . .
23
"Every man is likely to think of himself as the happy exemplification of 'the reasonable man'; and so the standard he adopts in order to fulfill the law's prescription will resemble himself, or what he thinks he is, or what he thinks he should be, even if he is not. All these shifts and variations of his personal norm will find reflection in the verdict. The whole business is necessarily equivocal. This we recognize, but we are reconciled to the impossibility of discovering any form of words that will ring with perfect clarity and be automatically self-executing. Alas, there is no magic push-button in this or in other branches of the law." (Emphasis added.)6
24
However one defines "sensitive" or "insensitive" persons, they are part of the community. The contention that the instruction was erroneous because it included sensitive persons is therefore without merit.
C. Instruction as to Deviant Groups
25
Challenge is made to the inclusion of "members of a deviant sexual group" in the charge which recited:
26
"The first test to be applied, in determining whether a given picture is obscene, is whether the predominant theme or purpose of the picture, when viewed as a whole and not part by part, and when considered in relation to the intended and probable recipients, is an appeal to the prurient interest of the average person of the community as a whole or the prurient interest of members of a deviant sexual group at the time of mailing.
27
* * * * *
28
In applying this test, the question involved is not how the picture now impresses the individual juror, but rather, considering the intended and probable recipients, how the picture would have impressed the average person, or a member of a deviant sexual group at the time they received the picture."
29
Examination of some of the materials could lead to the reasonable conclusion that their prurient appeal would be more acute to persons of deviant persuasions, but it is equally clear they were intended to arouse the prurient interest of any reader or observer. Nothing prevents a court from giving an instruction on prurient appeal to deviant sexual groups as part of an instruction pertaining to appeal to the average person when the evidence, as here, would support such a charge. See Hamling v. United States, supra, 418 U.S., at 128-130, 94 S.Ct., at 2913-2914. Many of the exhibits depicted aberrant sexual activities. These depictions were generally provided along with or as a part of the materials which apparently were thought likely to appeal to the prurient interest in sex of nondeviant persons. One of the mailings even provided a list of deviant sexual groups which the recipient was asked to mark to indicate interest in receiving the type of materials thought appealing to that particular group.
30
Whether materials are obscene generally can be decided by viewing them; expert testimony is not necessary. Ginzburg v. United States, 383 U.S., at 465, 86 S.Ct., at 944; Hamling v. United States, supra, 418 U.S., at 100, 94 S.Ct., at 2898; see Jacobellis v. Ohio, 378 U.S. 184, 197, 84 S.Ct. 1676, 1683, 12 L.Ed.2d 793 (1964) (STEWART, J., concurring). But petitioner claims that to support an instruction on appeal to the prurient interest of deviants, the prosecution must come forward with evidence to guide the jury in its deliberations, since jurors cannot be presumed to know the reaction of such groups to stimuli as they would that of the average person. Concededly, in the past we have "reserve[d] judgment . . . on the extreme case . . . where contested materials are directed at such a bizarre deviant group that the experience of the trier of fact would be plainly inadequate to judge whether the material appeals to the [particular] prurient interest." Paris Adult Theatre I v. Slaton, 413 U.S. 49, 56 n.6, 93 S.Ct. 2628, 2634, 37 L.Ed.2d 446 (1973). But here we are not presented with that "extreme" case because the Government did in fact present expert testimony on rebuttal which, when combined with the exhibits themselves, sufficiently guided the jury. This instruction, therefore, was acceptable.
D. Instruction as to Pandering
31
Pandering is "the business of purveying textual or graphic matter openly advertised to appeal to the erotic interest of their customers." Ginzburg v. United States, supra, 383 U.S., at 67, 86 S.Ct., at 945, citing Roth v. United States, 354 U.S., at 495-496, 77 S.Ct., at 1314-1315 (Warren, C. J., concurring). We have held, and reaffirmed, that to aid a jury in its determination of whether materials are obscene, the methods of their creation, promotion, or dissemination are relevant. Splawn v. California, 431 U.S. 595, 598, 97 S.Ct. 1987, 1990, 52 L.Ed.2d 606 (1977); Hamling v. United States, 418 U.S., at 130, 94 S.Ct., at 2914. In essence, the Court has considered motivation relevant to the ultimate evaluation if the prosecution offers evidence of motivation.
32
In this case the trial judge gave a pandering instruction to which the jury could advert if it found "this to be a close case" under the three part Roth-Memoirs test. This was not a so-called finding instruction which removed the jury's discretion; rather it permitted the jury to consider the touting descriptions along with the materials themselves to determine whether they were intended to appeal to the recipient's prurient interest in sex, whether they were "commercial exploitation of erotica solely for the sake of their prurient appeal," Ginzburg, supra, 383 U.S. at 466, 86 S.Ct. at 945, if indeed the evidence admitted of any other purpose. And while it is true the Government offered no extensive evidence of the methods of production, editorial goals, if any, methods of operation, or means of delivery other than the mailings and the names, locations, and occupations of the recipients, the evidence was sufficient to trigger the Ginzburg pandering instruction.
E. Exclusion of Comparison Evidence
33
At trial petitioner proffered, and the trial judge rejected, two films which were said to have had considerable popular and commercial success when displayed in Los Angeles and elsewhere around the country. He proffered this assertedly comparable material as evidence that materials as explicit as his had secured community tolerance. Apparently the theory was that display of such movies had altered the level of community tolerance.
34
On appeal the Court of Appeals began an inquiry into whether the comparison evidence should have been admitted. It held that exclusion of the evidence was proper as to the printed materials; but it abandoned the inquiry when, in reliance on the so-called concurrent-sentence doctrine, it concluded that even if the comparison evidence had been improperly excluded as to the count involving petitioner's film, the sentence would not be affected. It therefore exercised its discretion not to pass on the admissibility of the comparison evidence and hence did not review the conviction on the film count.7
35
However, the sentences on the 11 counts were not in fact fully concurrent; petitioner's 11 prison terms of four years each were concurrent but the $500 fines on each of the counts were cumulative, totaling $5,500, so that a separate fine of $500 was imposed on the film count. Petitioner thus had at least a pecuniary interest in securing review of his conviction on each of the counts.
36
In light of our disposition of the case the issue of admissibility of the comparison evidence is not before us, and we leave it to the Court of Appeals to decide whether or to what extent such evidence is relevant to a jury's evaluation of community standards.
37
Accordingly, the case is remanded to the Court of Appeals for further consideration consistent with this opinion.
38
Reversed and remanded.
39
Mr. Justice STEVENS, concurring.
40
If the Court were prepared to re-examine this area of the law, I would vote to reverse this conviction with instructions to dismiss the indictment. See Marks v. United States, 430 U.S. 188, 198, 97 S.Ct. 990, 996, 51 L.Ed.2d 260 (STEVENS, J., concurring and dissenting); Smith v. United States, 431 U.S. 291, 311 97 S.Ct. 1756, 1769, 52 L.Ed.2d 324 (STEVENS, J., dissenting); Splawn v. California, 431 U.S. 595, 602, 97 S.Ct. 1987, 1992, 52 L.Ed.2d 606 (STEVENS, J., dissenting); Ward v. Illinois, 431 U.S. 767, 777, 97 S.Ct. 2085, 2091, 52 L.Ed.2d 738 (STEVENS, J., dissenting). But my views are not now the law. The opinion that THE CHIEF JUSTICE has written is faithful to the cases on which it relies. For that reason, and because a fifth vote is necessary to dispose of this case, I join his opinion.
41
Mr. Justice BRENNAN, with whom Mr. Justice STEWART and Mr. Justice MARSHALL join.
42
I concur in the judgment reversing petitioner's conviction. However, because I adhere to the 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) (BRENNAN, J., dissenting), quoting United States v. Orito, 413 U.S. 139, 148, 93 S.Ct. 2674, 2680, 37 L.Ed.2d 513 (1973) (BRENNAN, J., dissenting), I would not remand for further consideration but rather with direction to dismiss the indictment.
43
Mr. Justice POWELL, dissenting.
44
Although I agree with the Court that in a federal prosecution the instruction as to children should not have been given, on the facts of this case I view the error as harmless beyond a reasonable doubt. I therefore would affirm the judgment of the Court of Appeals.
1
Title 18 U.S.C. § 1461 (1976 ed.) declares, in essence, that obscene materials are nonmailable and the Postal Service may not be used to convey them. It provides for fines and imprisonment upon conviction for its violation.
2
Two of the 11 paragraphs of the stipulation, corresponding to the evidence relating to the 11 charges, do not recite that petitioner knew the contents of those two particular mailings. Neither party has made an issue of this apparent oversight and we believe it is without significance.
3
Indeed, confusion over this issue might have been foreseen in light of Mr. Justice Harlan's separate opinion in Roth and its companion case, Alberts v. California, 352 U.S. 962, 77 S.Ct. 349, 1 L.Ed.2d 319. He observed that the correctness of the charge in Roth was not before the Court, but must be assumed correct. It was the constitutionality of the statute which was being decided. 354 U.S., at 499 n.1, 507 n. 8, 77 S.Ct., at 1316 n. 1, 1320 n. 8. Simultaneously, he said that he "agree[d] with the Court, of course, that the books must be judged as a whole and in relation to the normal adult reader," id., at 502, 77 S.Ct., at 1318 (emphasis added; referring to Alberts ), but the "charge [in Roth ] fail[ed] to measure up to the standards which I understand the Court to approve . . . ." Id., at 507, 77 S.Ct., at 1320.
The trial judge tried to accommodate petitioner's demand that he be tried under Roth-Memoirs, and gave almost precisely the same instruction in this case as had apparently been approved in Roth.
4
During voir dire, in response to a prospective juror's question, and after a bench conference with counsel for both sides, the District Judge said, "[I]n no way does [the case] involve any distribution of material of any kind to children, and that the evidence will, that there will be a stipulation even that there has been no exposure of any of this evidence to children."
Though the stipulation did not specifically state no children were involved, it could be so inferred upon reading it. The Government does not contend otherwise.
B. Instruction as to Sensitive Persons.
5
This rejected standard for judging obscenity was first articulated in The Queen v. Hicklin, [1868] L.R. 3 Q.B. 360.
6
Sobeloff, Insanity and the Criminal Law: From McNaghten to Durham, and Beyond, 41 A.B.A.J. 793, 796 (1955).
7
The validity of the concurrent-sentence doctrine is not challenged here. See Benton v. Maryland, 395 U.S. 784, 791, 89 S.Ct. 2056, 2060, 23 L.Ed.2d 707 (1969).
| 23
|
436 U.S. 340
98 S.Ct. 1834
56 L.Ed.2d 329
UNITED STATES, Petitioner,v.John MAURO and John Fusco. UNITED STATES, Petitioner, v. Richard Thompson FORD.
Nos. 76-1596, 77-52.
Argued Feb. 27, 1978.
Decided May 23, 1978.
Syllabus
After respondents in No. 76-1596, who at the time were serving state sentences in New York, were indicted on federal charges in the United States District Court for the Eastern District of New York, that court issued writs of habeas corpus ad prosequendum directing the state prison wardens to produce respondents in court. Subsequently, following their arraignments, respondents were retained in federal custody in New York City, but after trial dates had been set, they were returned to state prison. Respondents then moved for dismissal of their indictments on the ground that the United States, by returning them to state custody without first trying them on the federal charges, violated Art. IV(e) of the Interstate Agreement on Detainers (Agreement), which requires the dismissal of an indictment against a prisoner who is obtained by a receiving State ("State" being defined by Art. II(a) to include the United States) if he is returned to his original place of imprisonment without first being tried on the indictment underlying the detainer and request by which custody of the prisoner was secured. The District Court granted the motion, and the Court of Appeals affirmed. In No. 77-52, after being arrested in Illinois on federal charges and being turned over to Illinois authorities for extradition to Massachusetts on unrelated state charges, respondent requested a speedy trial on the federal charges. After he was transferred to Massachusetts, federal officials lodged a detainer against him with state prison authorities. Subsequently, following his conviction on the state charges, respondent was indicted on the federal charges in the United States District Court for the Southern District of New York and was produced from Massachusetts for arraignment before that court pursuant to a writ of habeas corpus ad proseque dum. Thereafter, at his own request respondent was returned to the Massachusetts prison to await the federal trial, which was subsequently postponed several times. When the Government moved to postpone the trial for the third time, respondent moved for dismissal of the indictment on the ground that he had been denied his right to a speedy trial, alleging that the detainer was causing him to be denied certain privileges at the state prison. Respondent's motion was denied, and the Government secured his presence for trial from the state prison by means of a writ of habeas corpus ad prosequendum. At the beginning of his trial, respondent again moved unsuccessfully for dismissal of the indictment on speedy trial grounds, and thereafter was convicted. On appeal, he argued that his indictment should have been dismissed because, inter alia, he was not tried within 120 days of his initial arrival in the Southern District of New York in violation of Art. IV(c) of the Agreement. The Court of Appeals agreed that Art. IV(c) had been violated and reversed and remanded for dismissal of the indictment as required by Art. V(c), holding that the writ of habeas corpus ad prosequendum utilized to bring respondent to federal court was a "written request for temporary custody" within the meaning of Art. IV(a) of the Agreement required to be filed by the receiving State with the sending State in order to obtain temporary custody of a prisoner. Held :
1. As indicated by the statute itself as well as its legislative history, the United States is a party to the Agreement as both a sending and a receiving State, and the fact that the United States already had the writ of habeas corpus ad prosequendum as a means of obtaining prisoners at the time the Agreement was enacted does not show that Congress could not have intended to join the United States as a receiving State. Pp. 353-356.
2. A writ of habeas corpus ad prosequendum issued by a federal court to state authorities, directing the production of a state prisoner for trial on federal criminal charges, is not a detainer within the meaning of the Agreement and thus does not trigger the application of the Agreement. Therefore, because in No. 76-1596 the Government never filed a detainer against respondents, the Agreement never became applicable so as to bind the Government to its provisions, and the indictments should not have been dismissed. Pp. 357-361.
(a) The role and functioning of the writ of habeas corpus ad prosequendum to secure the presence, for purposes of trial, of defendants in federal criminal cases, including defendants then in state custody, are rooted in history and bear little resemblance to the typical detainer that activates the Agreement. Unlike such a writ issued by a federal district court, a detainer may be lodged against a prisoner on the initiative of a prosecutor or law enforcement officer, and, rather than requiring the prisoner's immediate presence as does such a writ, merely puts the officials of the prison in which the prisoner is incarcerated on notice that he is wanted in another jurisdiction for trial, further action being necessary by the receiving State in order to obtain the prisoner. Pp. 357-359.
(b) The concerns expressed by the drafters of the Agreement and by the Congress that enacted it demonstrate that a writ of habeas corpus ad prosequendum was not intended to be included within the definition of "detainer" as used in the Agreement. Pp. 359-361.
3. The United States is bound by the Agreement when it activates its provisions by filing a detainer against a state prisoner and then obtains his custody by means of a writ of habeas corpus ad prosequendum, and hence in No. 77-52 the indictment was properly dismissed because the Government violated Art. IV(c) by not trying respondent within 120 days of his arrival in federal court. Pp. 361-365.
(a) A writ of habeas corpus ad prosequendum constitutes a "written reque t for temporary custody" within the meaning of Art. IV(a) of the Agreement. Because at the point when a detainer is lodged the policies underlying the Agreement to encourage the expeditious disposition of charges against a prisoner subject to a detainer and to provide cooperative procedures among member States to facilitate such disposition are fully implicated, there is no reason to give an unduly restrictive meaning to the term "written request for temporary custody." Whether the Government presents the prison authorities in the sending State with a piece of paper labeled "request for temporary custody" or with a writ of habeas corpus ad prosequendum demanding the prisoner's presence in federal court, the United States is able to obtain temporary custody of the prisoner, and the fact that the prisoner is brought before the court pursuant to such a writ in no way reduces the need for prompt disposition of the charges underlying the detainer. Pp. 361-364.
(b) The failure of the respondent in No. 77-52 to invoke the Agreement in specific terms in his speedy trial motions before the District Court did not result in a waiver of his claim that the Government violated Art. IV(c), since the record shows that from the time he was arrested respondent persistently requested that he be given a speedy trial, such requests being sufficient to put the Government and the District Court on notice of the substance of his claim. Pp. 364-365.
No. 76-1596, 544 F.2d 588, reversed and remanded; No. 77-52, 550 F.2d 732, affirmed.
Andrew L. Frey, Washington, D.C., for petitioner.
Kevin G. Ross, New York City, for respondents, pro hac vice, by special leave of Court.
Mr. Justice WHITE delivered the opinion of the Court.
1
In 1970 Congress enacted the Interstate Agreement on Detainers Act, 18 U.S.C. App., pp. 1395-1398 (1976 ed.), joining the United States and the District of Columbia as parties to the Interstate Agreement on Detainers (Agreement).1 The Agreement, which has also been enacted by 46 States, is designed "to encourage the expeditious and orderly disposition of . . . charges [outstanding against a prisoner] and determination of the proper status of any and all detainers based on untried indictments, informations, or complaints." Art. I. It prescribes procedures by which a member State may obtain for trial a prisoner incarcerated in another member jurisdiction and by which the prisoner may demand the speedy disposition of certain charges pending against him in another jurisdiction. In either case, however, the provisions of the Agreement are triggered only when a "detainer" is filed with the custodial (sending) State by another State (receiving) having untried charges pending against the prisoner; to obtain temporary custody, the receiving State must also file an appropriate "request" with the sending State. The present cases concern the scope of the United States' obligations under the Agreement, and in particular pose the question whether a writ of habeas corpus ad prosequendum, used by the United States to secure the presence in federal court of state prisoners, may be considered either a "detainer" or a "request" within the meaning of the Agreement.
2
* A.
3
Respondents in No. 76-1596, Mauro and Fusco, were indicted for criminal contempt in the United States District Court for the Eastern District of New York on November 3, 1975.2 At the time of their indictments, both men were serving state sentences at New York correctional facilities.3 On November 5, 1975, the District Court issued separate writs of habeas corpus ad prosequendum, directing the wardens of the prisons where Mauro and F sco were incarcerated to produce them before the District Court on November 19, 1975. Mauro and Fusco were arraigned in the District Court on November 24, 1975, at which time they both entered pleas of not guilty. Following their arraignment, they were retained in federal custody at the Metropolitan Correctional Center in New York City.
4
On December 2, 1975, respondents again appeared before the District Court, this time for the purpose of setting a trial date. After trial dates had been established, the court, noting the overcrowded conditions at the federal Metropolitan Correctional Center, directed that Mauro and Fusco be returned to their respective state prisons until shortly before their trials.
5
On April 26, 1976, Mauro was again removed from state prison and taken before the District Court pursuant to a writ of habeas corpus ad prosequendum, as was Fusco on April 29, 1976. Prior to these appearances, respondents had moved for dismissal of their indictments on the ground that the United States had violated Art. IV(e) of the Agreement by returning them to state custody without first trying them on the federal indictment.4 The District Court granted their motions to dismiss the indictments, finding that the Agreement governed their removal from state custody by means of the writs of habeas corpus ad prosequendum and that the Government had violated the provisions of Art. IV(e).
6
On appeal a divided panel of the Court of Appeals for the Second Circuit affirmed the dismissals of respondents' indictments. 544 F.2d 588 (1976). It held that a "writ of habeas corpus ad prosequendum is a detainer entitling the state inmate to the protection provided in Article IV [of the Agreement] and specifically to a trial before his return to the state institution." Id., at 592 (footnote omitted). To hold that a writ of habeas corpus ad prosequendum was not a detainer within the meaning of the Agreement, reasoned the court, would permit the United States to circumvent its obligations under the Agreement.
B
7
Respondent in No. 77-52, Ford, was arrested in Chicago on October 11, 1973, on two federal warrants.5 Shortly after his arrest, he was turned over to Illinois authorities for extradition to Massachusetts on older, unrelated state charges. While in the custody of the Illinois authorities, Ford requested a speedy trial on the federal bank robbery charge by means of letters sent to the United States Attorney for the Southern District of New York and the United States District Court for that District.6 After he was transferred to Massachusetts, federal officials lodged the federal bank robbery warrant as a detainer against him with the state prison authorities.
8
Following Ford's conviction on the Massachusetts charges, an indictment was filed in the United States District Court for the Southern District of New York, charging Ford with bank robbery and aggravated bank robbery. On April 1, 1974, he was produced from Massachusetts for arraignment before the District Court pursuant to a writ of habeas corpus ad prosequendum issued by the court on March 25, 1974. Because Ford was not represented by counsel, the proceedings were adjourned until April 15, at which time he pleaded not guilty to a superseding indictment.7 Trial was set for May 28, 1974.
9
The trial did not commence, however, until September 2, 1975, having been postponed on five separate occasions either at the request of the Government or on the court's own initiative.8 During the period while he was awaiting his federal trial, Ford was incarcerated in the Massachusetts state prison; he had requested and received permission to return there in order to facilitate preparation for trial. On November 4, 1974, in response to the Government's motion to postpone the trial for a third time, Ford moved in the District Court for the dismissal of his indictment on the ground that he had been denied his right to a speedy trial.9 In support of his motion, he alleged that he was being denied furlough privileges at the state prison as a result of the federal detainer that remained lodged against him. His motion to dismiss the indictment was denied.
10
On August 8, 1975, the Government secured Ford's presence for trial from the Massachusetts prison authorities by means of a writ of habeas corpus ad prosequendum issued by the District Court. At the beginning of his trial, Ford again moved unsuccessfully for a dismissal of the indictment on speedy trial grounds. His jury trial resulted in verdicts of guilty on all counts.
11
On appeal to the Court of Appeals for the Second Circuit, Ford argued, among other things, that his indictment should have been dismissed with prejudice because he was not tried within 120 days of his initial arrival in the Southern District of New York, in violation of Art. IV(c) of the Agreement,10 and because he was returned to state prison without first being tried on the federal charges, in violation of Art. IV(e). The panel,11 with one judge dissenting, agreed with Ford's contention that dismissal of the indictment was required as a res lt of the Government's failure to comply with the speedy trial provisions of Art. IV(c).12 550 F.2d 732 (1977). The court reasoned that, regardless of whether a writ of habeas corpus ad prosequendum issued by a federal court to obtain a state prisoner is by itself sufficient to trigger the provisions of the Agreement, the Agreement clearly governs situations such as Ford's, in which a federal detainer is first filed with the state authorities and the writ is then used to secure the prisoner's presence in federal court. In the view of the Court of Appeals, the writ of habeas corpus ad prosequendum utilized to bring Ford to federal court was a "written request for temporary custody or availability" within the meaning of Art. IV(a). Having concluded that the Agreement was applicable and that the provisions of Art. IV(c) had been violated, the Court of Appeals reversed and remanded for the dismissal of Ford's indictment with prejudice, as required by Art. V(c) of the Agreement.13
C
12
Because there is a conflict among the Federal Courts of Appeals on the issue,14 we granted certiorari15 in these cases to consider whether the Agreement governs the use of writs of habeas corpus ad prosequendum by the United States to obtain state prisoners. In No. 76-1596 we hold that such a writ issued by a federal court to state authorities, directing the production of a state prisoner for trial on criminal charges, is not a detainer within the meaning of the Agreement and thus does not trigger the application of the Agreement. In No. 77-52 we hold that the United States is bound by the Agreement when it activates its provisions by filing a detainer against a state prisoner and then obtains his custody by means of a writ of habeas corpus ad prosequendum.
II
13
The origins of the Agreement date back to 1948, when a group known as the Joint Committee on Detainers16 issued a report concerning the problems arising from the use of detainers and expressing five aims or principles for the guidance of prosecuting authorities, prison officials, and parole authorities. These guiding principles, which later served as the underpinnings of the Agreement, were as follows:
14
"1. Every effort should be made to accomplish the disposition of detainers as promptly as possible.
15
"2. There should be assurance that any prisoner released to stand t ial in another jurisdiction will be returned to the institution from which he was released.
16
"3. Prison and parole authorities should take prompt action to settle detainers which have been filed by them.
17
"4. No prisoner should be penalized because of a detainer pending against him unless a thorough investigation of the detainer has been made and it has been found valid.
18
"5. All jurisdictions should observe the principles of interstate comity in the settlement of detainers, and each should bear its own proper burden of the expenses and effort involved in disposing of the charges and settling detainers." Bennett, The Last Full Ounce, 23 Fed.Prob. 20, 22 (June 1959).
19
The Joint Committee on Detainers was later reconstituted under the auspices of the Council of State Governments. Then known as the Committee on Detainers and Sentencing and Release of Persons Accused of Multiple Offenses, it held meetings in 1955 and 1956, which resulted in the development and approval of several proposals concerning detainers. Among the proposals was a draft version of the Agreement. In April 1956 this proposal was reviewed and approved by a conference jointly sponsored by the American Correctional Association, the Council of State Governments, the National Probation and Parole Association, and the New York Joint Legislative Committee on Interstate Cooperation.17 Following the endorsement of the Agreement by this conference, the Council of State Governments included it within its Suggested State Legislation Program for 1957.
20
The Agreement, in the form adopted by the United States and other member jurisdictions, sets forth the findings upon which it is based and its purpose in Art. I. It notes that "charges outstanding against a prisoner, detainers based on untried indictments, informations, or complaints and difficulties in securing speedy trial of persons already incarcerated in other jurisdictions, produce uncertainties which obstruct programs of prisoner treatment and rehabilitation." Accordingly, its purpose is to encourage the expeditious disposition of such charges and to provide cooperative procedures among member States to facilitate such disposition.
21
The central provisions of the Agreement are Art. III and Art. IV. Article III provides a procedure by which a prisoner against whom a detainer has been filed can demand a speedy disposition of the charges giving rise to the detainer. The warden of the institution in which the prisoner is incarcerated is required to inform him promptly of the source and contents of any detainer lodged against him and of his right to request final disposition of the charges. Art. III(c). If the prisoner does make such a request, the jurisdiction that filed the detainer must bring him to trial within 180 days.18 Art. III(a). The prisoner's request operates as a request for the final disposition of all untried charges underlying detainers filed against him by that State, Art. III(d), and is deemed to be a waiver of extradition. Art. III(e).
22
Article IV provides the means by which a prosecutor who has lodged a detainer against a prisoner in another State can secure the prisoner's presence for disposition of the outstanding charges. Once he has filed a detainer against the prisoner, the prosecutor can have him made available by presenting to the officials of the State in which the prisoner is incarcerated "a written request for temporary custody or availability . . .."19 Art. IV(a).
23
Two important limitations, previously referred to, are placed on a prosecuting authority once it has obtained the presence of a prisoner pursuant to Art. IV. Article IV(c) states that
24
"[i]n respect of any proceeding made possible by this article, trial shall be commenced within one hundred and twenty days of the arrival of the prisoner in the receiving State, but for good cause shown in open court, the prisoner or his counsel being present, the court having jurisdiction of the matter may grant any necessary or reasonable continuance."
25
And Art. IV(e) requires the receiving State to try the prisoner on the outstanding charge before returning him to the State in which he was previously imprisoned:
26
"If trial is not had on any indictment, information, or complaint contemplated hereby prior to the prisoner's being returned to the original place of imprisonment pursuant to article V(e) hereof, such indictment, information, or complaint shall not be of any further force or effect, and the court shall enter an order dismissing the same with prejudice."
27
Article V(c) similarly provides that the "indictment, information, or complaint on the basis of which the detainer has been lodged" shall be dismissed if the prisoner is not brought to trial within the period specified in Art. IV(c).
III
28
Congress enacted the Agreement into law and entered into it on behalf of the United States and the District of Columbia with relatively little discussion and no apparent opposition. See 116 Cong.Rec. 13997-14000, 38840-38842 (1970). The legislation had been previously introduced in the 90th Congress at the request of the Attorney General; on that occasion, it had passed the House, but the Senate had failed to approve it. When it was introduced again in the 91st Congress, the need for the legislation was noted in both the House and Senate Reports:
29
"The Attorney General has advised the committee that a prisoner who has had a detainer lodged against him is seriously disadvantaged by such action. He is in custody and therefore in no position to seek witnesses or to preserve his defense. He must often be kept in close custody and is ineligible for desirable work assignments. What is more, when detainers are filed against a prisoner he sometimes loses interest in institutional opportunities because he must serve his sentence without knowing what additional sentences may lie before him, or when, if ever, he will be in a position to employ the education and skills he may be developing." H.R.Rep. No. 91-1018, p. 3 (1970); S.Rep. No. 91-1356, p. 3 (1970), U.S.Code Cong. & Admin.News 1970, pp. 4864, 4866.
30
The Government now vigorously argues that when Congress enacted the Agreement into law, the United States became a party to the Agreement only in its capacity as a "sending State." It contends that "Congress intended the United States to participate in the Agreement only for the purposes of allowing states more readily to obtain federal prisoners and allowing such prisoners to seek trial on outstanding detainers lodged against them with their federal custodian." Brief for United States in No. 77-52, p. 16. Thus, it argues, the Agreement has no relevance to the present cases, for here the Federal Government was the recipient of state prisoners. We have considered the grounds offered by the Government in support of this contention and conclude, as have all of the Courts of Appeals that have considered the question,20 that the United States is a party to the Agreement as both a sending and a receiving State.
31
As even the Government concedes, the Agreement as enacted by Congress expressly includes the United States within the definition of "State"21 and defines "Receiving State" as "the State in which trial is to be had on an indictment, information, or complaint pursuant to article III or article IV hereof." Art. II(c). The statute itself gives no indication that the United States is to be exempted from the category of receiving States. To the contrary, Art. VIII states that "[t]his agreement shall enter into full force and effect as to a party State when such State has enacted the same into law" (emphasis added).22
32
The brief legislative history that exists provides no further support for the Government's contention. It is true, as the Government points out, that most of the comment on the proposed legislation referred to problems encountered by States in obtaining federal prisoners, but there is no indication whatsoever that the United States' participation in the Agreement was to be a limited one. Senator Hruska, for example, spoke in favor of the Agreement on the floor of the Senate, saying:
33
By enactment of this bill the United States and the District of Columbia would become signatories to this agreement which has already been adopted by 28 States. By approving this measure today we can insure that the United States will become part of this vitally needed system of simplified and uniform rules for the disposition of pending criminal charges and the exchange of prisoners." 116 Cong.Rec. 38840 (1970).
34
Neither he nor anyone else in Congress drew a distinction between the extent of the United States' participation in the Agreement and that of the other member States, an observation that one would expect had the Federal Government entered into the Agreement as only a sending State.
35
Nor are we persuaded by the Government's argument that, because the United States already had an efficient means of obtaining prisoners—the writ of habeas corpus ad prosequendum Congress could not have intended to join the United States as a receiving State. Although the United States perhaps did not gain as much from its entry into the Agreement as did some of the other member States,23 the fact remains that Congress did enact the Agreement into law in its entirety, and it placed no qualification upon the membership of the United States. The reference in the committee reports to the recommendation of the Attorney General, see supra, at 353, indicates that Congress was motivated, not only by the desire to aid States in obtaining federal prisoners, but also by the desire to alleviate the problems encountered by prisoners and prison systems as a result of the lodging of detainers. There is no r ason to assume that Congress was any less concerned about the effects of federal detainers filed against state prisoners than it was about state detainers filed against federal prisoners. While the Government argues that a writ of habeas corpus ad prosequendum leads to none of the problems about which the drafters of the Agreement were concerned, we think that this argument is more properly addressed to the question whether such a writ constitutes a detainer for purposes of the Agreement, which we discuss below.24
IV
A.
36
United States district courts are authorized by 28 U.S.C. § 2241(a) to grant writs of habeas corpus; expressly included within this authority is the power to issue such a writ when it is necessary to bring a prisoner into court to testify or for trial. § 2241(c)(5). This Court has previously examined in great detail the history of the writ of habeas corpus ad prosequendum, observing that § 14 of the first Judiciary Act, 1 Stat. 81, authorized courts of the United States to issue writs of habeas corpus. Carbo v. Un ted States, 364 U.S. 611, 614, 81 S.Ct. 338, 5 L.Ed.2d 329 (1961). Although § 14 did not expressly state that the courts could issue ad prosequendum writs, the Court in an opinion by Mr. Chief Justice Marshall, Ex parte Bollman, 4 Cranch 75, 2 L.Ed. 554 (1807), interpreted the words "habeas corpus" as being a generic term including the writ "necessary to remove a prisoner in order to prosecute him in the proper jurisdiction wherein the offense was committed." Carbo, supra, 364 U.S., at 615, 81 S.Ct., at 341 (emphasis omitted). Since the time of Ex parte Bollman, the statutory authority of federal courts to issue writs of habeas corpus ad prosequendum to secure the presence, for purposes of trial, of defendants in federal criminal cases, including defendants then in state custody, has never been doubted. In 1948 this authority was made explicit with the enactment of 28 U.S.C. § 2241, and in 1961 the Court held that this authority was not limited by the territorial boundaries of the federal district court. Carbo, supra. The role and functioning of the ad prosequendum writ are rooted in history, and they bear little resemblance to the typical detainer which activates the provisions of the Agreement.
37
Unlike a writ of habeas corpus ad prosequendum issued by a federal district court, a detainer may be lodged against a prisoner on the initiative of a prosecutor or law enforcement officer.25 Rather than requiring the immediate presence of the prisoner, a detainer merely puts the officials of the institution in which the prisoner is incarcerated on notice that the prisoner is wanted in another jurisdiction for trial upon his release from prison. Further action must be taken by the receiving State in order to obtain the prisoner. Before it was made clear that a prosecuting authority is not relieved of its obligation to provide a defendant a speedy trial just because he is in custody elsewhere, see Smith v. Hooey, 393 U.S. 374, 89 S.Ct. 575, 21 L.Ed.2d 607 (1969), detainers were allowed to remain lodged against prisoners for lengthy periods of time, quite often for the duration of a prisoner's sentence.
B
38
The Agreement itself contains no definition of the word "detainer." The House and Senate Reports, however, explain that "[a] detainer is a notification filed with the institution in which a prisoner is serving a sentence, advising that he is wanted to face pending criminal charges in another jurisdiction." H.R.Rep. No. 91-1018, p. 2 (1970); S.Rep. No. 91-1356, p. 2 (1970); U.S.Code Cong. & Admin.News 1970, p. 4865. While the Court of Appeals for the Second Circuit concluded that this definition is broad enough to include within its scope a federal writ of habeas corpus ad prosequendum, the concerns expressed by the drafters of the Agreement and by the Congress that enacted it demonstrate that the word "detainer" was not so intended.
39
In recommending the adoption of the Agreement, the Council of State Governments outlined some of the problems caused by detainers that the Agreement was designed to address. It noted that prison administrators were "thwarted in [their] effort[s] toward rehabilitation [because t]he inmate who has a frequently does not respond to a training program." Council of State Governments, Suggested State Legislation Program for 1957, p. 74 (1956). Furthermore, the prisoner was often deprived of the ability to take advantage of many of the prison's programs aimed at rehabilitation, merely because there was a detainer lodged against him. This problem was noted by the Director of the Federal Bureau of Prisons, who in 1959 stated that he "remember[ed] the day when the presence of a detainer automatically guaranteed that the inmate would be held in close custody and denied training and work experiences in more relaxed situations, such as the farm, which frequently represent a valuable resource in treating prisoners and testing their progress." Bennett, The Last Full Ounce, 23 Fed.Prob. 20, 21 (June 1959). The Council of State Governments also pointed out that the existence of detainers presented problems in sentencing; when detainers had previously been filed against the defendant, the sentencing judge would hesitate to give as long a sentence as he thought might otherwise be indicated, there being a possibility that the defendant would be required to serve subsequent sentences. The Council stated that "proper sentencing, as well as proper correctional treatment, is not possible until the detainer system is modified." Council of State Governments, supra, at 74. Similar concerns were expressed by the Attorney General in his recommendation to Congress. See supra, at 353.
40
The adverse effects of detainers that prompted the drafting and enactment of the Agreement are thus for the most part the consequence of the lengthy duration of detainers. Because a detainer remains lodged against a prisoner without any action being taken on it, he is denied certain privileges within the prison, and rehabilitation efforts may be frustrated. For these reasons the stated purpose of the Agreement is "to encourage the expeditious and orderly disposition of [outstanding] charges and determination of the proper status of any and all detainers based on untried indictments, informations, or complaints." Art. I (emphasis added).
41
Because writs of habeas corpus ad prosequendum issued by a federal court pursuant to the express authority of a federal statute are immediately executed, enactment of the Agreement was not necessary to achieve their expeditious disposition. Furthermore, as noted above, the issuance of ad prosequendum writs by federal courts has a long history, dating back to the First Judiciary Act. We can therefore assume that Congress was well aware of the use of such writs by the Federal Government to obtain state prisoners and that when it used the word "detainer," it meant something quite different from a writ of habeas corpus ad prosequendum. Contrary to the contention of the Court of Appeals in No. 76-1596, it is not necessary to construe "detainer" as including these writs in order to keep the United States from evading its duties under the Agreement. When the United States obtains state prisoners by means of a writ of habeas corpus ad prosequendum, the problems that the Agreement seeks to eliminate do not arise;26 accordingly, the Government is in no sense circumventing the Agreement by means of the writ. We therefore conclude that a writ of habeas corpus ad prosequendum is not a detainer for purposes of the Agreement.
42
Because in No. 76-1596 the Government never filed a detainer against Mauro and Fusco, the Agreement never became applicable and the United States was never bound by its provisions. The Court of Appeals therefore erred in affirming the dismissal of the indictments against the respondents.
V
43
Our analysis of the purposes of the Agreement and the reasons for its adoption by Congress leads us to reject the Government's argument in No. 77-52 that a writ of habeas corpus ad prosequendum may not be considered a "written request for temporary custody" within the meaning of Art. IV of the Agreement. Once the Federal Government lodges a detainer against a prisoner with state prison officials, the Agreement by its express terms becomes applicable and the United States must comply with its provisions. And once a detainer has been lodged, the United States has precipitated the very problems with which the Agreement is concerned. Because at that point the policies underlying the Agreement are fully implicated, we see no reason to give an unduly restrictive meaning to the term "written request for temporary custody." It matters not whether the Government presents the prison authorities in the sending State with a piece of paper labeled "request for temporary custody" or with a writ of habeas corpus ad prosequendum demanding the prisoner's presence in federal court on a certain day; in either case the United States is able to obtain temporary custody of the prisoner. Because the detainer remains lodged against the prisoner until the underlying charges are finally resolved, the Agreement requires that the disposition be speedy and that it be obtained before the prisoner is returned to the sending State. The fact that the prisoner is brought before the district court by means of a writ of habeas corpus ad prosequendum in no way reduces the need for this prompt disposition of the charges underlying the detainer. In this situation it clearly would permit the United States to circumvent its obligations under the Agreement to hold that an ad prosequendum writ may not be considered a written request for temporary custody.27
44
The Government points to two provisions of the Agreement which it contends demonstrate that "written request" was not meant to include ad prosequendum writs; neither argument is persuasive. First the Government notes that under Art. IV(a) there is to be a 30-day waiting period after the request is presented during which the Governor of the sending State may disapprove the receiving State's request. Because a writ of habeas corpus ad prosequendum is a federal-court order, it would be contrary to the Supremacy Clause, the United States argues, to permit a State to refuse to obey it. We are unimpressed. The proviso of Art. IV(a) does not purport to augment the State's authority to d shonor such a writ. As the history of the provision makes clear, it was meant to do no more than preserve previously existing rights of the sending States, not to expand them.28 If a State has never had authority to dishonor an ad prosequendum writ issued by a federal court, then this provision could not be read as providing such authority. Accordingly, we do not view the provision as being inconsistent with the inclusion of writs of habeas corpus ad prosequendum within the meaning of "written requests."
45
The Government also points out that the speedy trial requirement of Art. IV(c) by its terms applies only to a "proceeding made possible by this article . . . ." When a prisoner is brought before a district court by means of an ad prosequendum writ, the Government argues, the subsequent proceedings are not made possible by Art. IV because the United States was able to obtain prisoners in that manner long before it entered into the Agreement. We do not accept the Government's narrow reading of this provision; rather we view Art. IV(c) as requiring commencement of trial within 120 days whenever the receiving State initiates the disposition of charges underlying a detainer it has previously lodged against a state prisoner. Any other reading of this section would allow the Government to gain the advantages of lodging a detainer against a prisoner29 without assuming the responsibilities that the Agreement intended to arise from such an action.30
46
Finally, we agree with the Court of Appeals in No. 77-52 that respondent Ford's failure to invoke the Agreement in specific terms in his speedy trial motions before the District Court did not result in a waiver of his claim that the Government violated Art. IV(c). The record shows that from the time he was arrested Ford persistently requested that he be given a speedy trial. After his trial date had been conti ued for the third time, he sought the dismissal of his indictment on the ground that the delay in bringing him to trial while the detainer remained lodged against him was causing him to be denied certain privileges at the state prison. We deem these actions on Ford's part sufficient to put the Government and the District Court on notice of the substance of his claim.
47
The United States does not challenge the conclusion of the Court of Appeals that, if Art. IV(c) was applicable, it was violated by the extensive delay in bringing Ford to trial. Accordingly, we conclude that the Court of Appeals correctly reversed the judgment of the District Court and ordered that the indictment against Ford be dismissed.
48
The judgment of the Court of Appeals in No. 76-1596 is reversed, and the case is remanded for further proceedings consistent with this opinion. In No. 77-52, the judgment of the Court of Appeals is affirmed.
49
It is so ordered.
50
Mr. Justice REHNQUIST, with whom THE CHIEF JUSTICE joins, concurring in the judgment in No. 76-1596 and dissenting in No. 77-52.
51
I agree with the Court's conclusion in No. 76-1596 that a writ of habeas corpus ad prosequendum is not a detainer within the meaning of the Interstate Agreement on Detainers. As the Court observes, ante, at 360: "[T]he issuance of ad prosequendum writs by federal courts has a long history, dating back to the first Judiciary Act. We can therefore assume that Congress was well aware of the use of such writs by the Federal Government to obtain state prisoners and that when it used the word 'detainer,' it meant something quite different from a writ of habeas corpus ad prosequendum." Indeed, there is simply nothing in the language or legislative history of the Agreement to indicate that Congress intended to cut back in any way on the scope and use of the writ. But for these very reasons I cannot agree with the result in No. 77-52.
52
I am first struck by the Court's interesting approach to statutory construction, the significance of which cannot be lost on even the most casual reader. The Court considers ad prosequendum writs to be "written requests for temporary custody" not because the language of the Agreement compels, or indeed even supports, that result, but rather because the "purposes of the Agreement and the reasons for its adoption by Congress" supposedly lead to that result. Ante, at 361. One certainly may find it necessary to resort to interpretative aids other than the language of the statute when difficult questions of construction arise. I would have thought, however, that one would first turn to the language of the statute before resorting to such extra-statutory interpretative aids. See United States v. Kahn, 415 U.S. 143, 151, 94 S.Ct. 977, 982, 39 L.Ed.2d 225 (1974).
53
The reason, indeed the necessity, for the Court's pursuing the opposite course in this case is readily apparent, however. The language of the Agreement simply does not support the Court's conclusion. The Agreement speaks only of "requests" for custody. In the writ in the instant case, on the other hand, the warden of the Massachusetts Correctional Institution at Walpole was "HEREBY COMMANDED to have the body of RICHARD THOMSON FORD . . . before the Judges of our District Court" on a date certain. App. in No. 77-52, p. 8. The Massachusetts warden would no doubt be surprised to hear that the United States had only "requested" the custody of his prisoner.
54
But even if the language of the Agreement were broad enough to encompass a writ of habeas corpus, it seems to me that for the same reasons the Court does not consider a writ to be a "detainer" it cannot view a writ as a request. The writ has a long history, of which Congress must have been aware when it enacted the Agreement. It is inconceivable to me that Congress intended to include the writ in the operation of the Agreement, and thereby make new and different conditions flow from its use, simpl by use of the phrase "written request for temporary custody." In fact, the intimations in the legislative history are to the contrary. The Reports of both the House and Senate Judiciary Committees suggest that Congress did not intend the procedures established by the Agreement to be the exclusive means of effecting a transfer of a prisoner for purposes of prosecution.
55
"The agreement also provides a method whereby prosecuting authorities may secure prisoners serving sentences in other jurisdictions for trial before the expiration of their sentences and before the passage of time has dulled the memory or made witnesses unavailable." H.R.Rep. No. 91-1018, p. 2 (1970); S.Rep. No. 91-1356, p. 2 (1970), U.S.Code Cong. & Admin.News 1970, p. 4865. (Emphasis added.)
56
A draft of the Senate Judiciary Committee Report on S. 1 in 1975 also leaves no doubt that many of the Congressmen directly involved in the passage of the Agreement did not think they were in any way limiting the scope or application of the writ. The Report states:
57
"Federal prosecution authorities and all Federal defendants have always had and continue to have recourse to a speedy trial in a Federal court pursuant to 28 U.S.C. § 2241(c)(5), the Federal writ of habeas corpus ad prosequendum. The Committee does not intend, nor does it believe that the Congress in enacting the Agreement in 1970 intended, to limit the scope and applicability of that writ." S.Rep. No. 94-00, p. 984 (1975).*
58
I likewise find myself at a loss to discover exactly what problems the United States has "precipitated" by lodging a detainer against a prisoner and then securing his custody by use of the writ or how this process allows the Government "to circumvent its obligations under the Agreement . . . ." Ante, at 362. The Court correctly recognizes that the primary purpose of the Agreement was to provide a solution to the problems encountered by prisoners and prison systems as a result of the lodging of detainers. Ante, at 356, 359-360. Upon the mere filing of a detainer by the United States, however, the prisoner clearly has the right under the Agreement to request speedy disposition of the underlying charges if he so desires. Ante, at 351. The Government in no way excuses itself from this obligation by later using a writ of habeas corpus to secure the prisoner's custody. But by the same token, when the Government chooses not to take advantage of the remaining procedures specified in the Agreement after it files a detainer, I see nothing in the Agreement to suggest that the Government is still bound by all of the conditions which attach when it does choose to take full advantage of those procedures. Neither do I see anything in this procedure which precipitates any of the problems the Agreement was intended to alleviate. And to the extent any of the concerns expressed by the Court relate to the possibility of pretrial delay, the Speedy Trial Act of 1974, 18 U.S.C. § 1361 et seq. (1976 ed.), which creates specific time limits within which all federal defendants must be tried, must lessen if not totally dissipate those concerns.
59
Neither can I shrug off as cavalierly as the Court the Government's arguments w th respect to other related language of the Agreement. The Government argues that since Art. IV(a) gives the Governor of a sending State the opportunity to disapprove the receiving State's "request," the term "request" cannot include the writ of habeas corpus, with which a State clearly has no right to refuse to comply. The Court responds that this provision was meant to do no more than preserve existing rights, and if the States did not previously have the right to refuse writs, then this provision cannot be read as providing such authority. Ante, at 363. But that is no response at all. The Court is simply picking and choosing which provisions it will apply to the United States and which it will not, in order to consistently construe a statutory scheme which has been made facially inconsistent by the Court's wrong turn at the outset. I see no justification, and, perhaps more importantly, no standards, for engaging in this sort of gerrymandering of a statute. Rather, if, as the Court admits, this statutory provision was intended only to "preserve" a Governor's right to refuse a "request," then the only logical and consistent inference therefrom is that the term "request" does not include writs of habeas corpus, which cannot be refused.
60
The Government also argues that the speedy trial provision of Art. IV(c) applies only to "proceeding[s] made possible by this article . . . ." Since proceedings against a prisoner whose presence has been secured by an ad prosequendum writ are not "made possible" by Art. IV, the speedy trial provision contained therein must not be applicable in this case. The Court's response to this argument is even less persuasive. It primly refuses to "accept the Government's narrow reading of this provision," ante, at 363-364, but ventures no alternative reading, narrow or broad, which is a defensible alternative to that offered by the Government.
61
Finally, the Court admits that the Agreement was introduced into Congress by, and, one can fairly surmise given the paucity of legislative history, enacted into law largely at the behest of, the Department of Justice, which unequivocally endorsed the legislation. S.Rep. No. 91-1356, supra, at 1, 5-6; H.R.Rep. No. 91-1018, U.S.Code Cong. & Admin.News 1970, p. 4864, supra, at 1, 5-6. Thereafter, the Department has consistently taken the position through its actions, though perhaps not its words, that writs of habeas corpus do not fall within the terms of the Agreement. This administrative construction certainly may be entitled to less weight than if it had been accompanied by a contemporaneous, well-reasoned explanation. But I would have thought, at least until today, that it was entitled to some weight, particularly in a case such as this where the language of the statute is not entirely clear on its face or, to the extent it is, supports, rather than undermines, the administrative construction. Cf. United States v. Correll, 389 U.S. 299, 304, 88 S.Ct. 445, 448, 19 L.Ed.2d 537 (1967).
62
In sum, I am left with the distinct impression that the Court is stretching to reach the result it considers most desirable from a policy standpoint. Since I see little in the normal tools of statutory construction to justify the interpretation adopted by the Court today, and much in them to condemn it, I dissent from the Court's disposition of No. 77-52.
1
The Interstate Agreement on Detainers Act contains eight sections. Section 2 sets forth the Agreement as adopted by the United States and by other member jurisdictions. Provisions of the Agreement will be referred to herein by their original article numbers, as set forth in § 2 of the enactment of Congress.
2
The criminal contempt charges arose out of the refusal of Mauro and Fusco, despite a judicial grant of immunity, to testify before a federal grand jury investigating violations of the federal drug laws.
3
Mauro was serving a sentence of three years to life imprisonment at the Auburn, N. Y., Correctional Facility, and Fusco was serving a sentence of one year to life imprisonment at the Clinton Correctional Facility in Dannemora, N. Y.
4
Article IV(e) requires the dismissal of the indictment against a prisoner who is obtained by a receiving State if he is returned to his original place of imprisonment without first being tried on the indictment underlying the detainer and request by which custody of the prisoner was secured. See infra, at 352-353.
5
One of the warrants, issued in the Southern District of New York, was for bank robbery; the other, issued in the District of Massachusetts, was for unlawful flight. The latter charge was eventually dismissed.
6
In these letters, Ford stated that he was in the custody of state officials in Illinois, awaiting extradition to Massachusetts to stand trial for escape. He requested the court and the United States Attorney to take action on the federal bank robbery charge against him, either bringing him to tri l or dropping the charge. This request, said Ford, was based on his constitutional right to a speedy trial.
7
The superseding indictment was filed against Ford on April 3, 1974. It charged him and one James R. Flynn with the same bank robbery that had been charged in the first indictment and also with use of a firearm in the commission of a bank robbery, interstate transportation of a stolen vehicle, and conspiracy to commit the above offenses.
8
On May 17, 1974, the Government moved to adjourn the trial for a period of 90 days or until codefendant Flynn could be apprehended, whichever occurred first. The motion was granted, and the trial was rescheduled for August 21, 1974. The second postponement resulted from the reassignment of the case to a different judge in August 1974; trial was then reset for November 18, 1974. On November 1, however, the Government requested an additional 90-day adjournment in order to apprehend Flynn. The District Court granted the Government's motion, over Ford's objections, and set a new trial date of February 18, 1975. Because the District Judge was engaged in a lengthy stock-fraud trial on February 18, the trial was again postponed; it was rescheduled for June 11, 1975. The trial was postponed for a final time, until September 2, 1975, because of the District Court's decision to undertake a "crash" program for the disposition of pending civil cases.
9
In his motion Ford contended that he had been denied his rights to a speedy trial as guaranteed to him by the Federal Constitution and the Rules of the Southern District of New York.
10
For the text of Art. IV(c), see infra, at 352.
11
The opinion for the Court of Appeals was written by Judge Mansfield, who had dissented from the Second Circuit's disposition of the Mauro and Fusco cases.
12
The Court of Appeals held that, while Ford had waived his claim under Art. IV(e) by requesting the return to state prison, he had not waived his Art. IV(c) claim, for he had repeatedly insisted on a prompt trial.
13
See infra, at 353.
14
In addition to the Court of Appeals for the Second Circuit, the Court of Appeals for the Third Circuit has held that a writ of habeas corpus ad prosequendum is a detainer within the meaning of the Agreement. United States v. Sorrell, 562 F.2d 227 (1977) (en banc), cert. pending, No. 77-593. The other Courts of Appeals that have considered the question have concluded that an ad prosequendum writ does not by itself trigger the application of the Agreement. Ridgeway v. United States, 558 F.2d 357 (C.A.6 1977), cert. pending, No. 77-5252; United States v. Kenaan, 557 F.2d 912 (C.A.1 1977), cert. pending, No. 77-206; United States v. Scallion, 548 F.2d 1168 (C.A.5 1977), cert. pending, No. 76-6559.
15
434 U.S. 816, 98 S.Ct. 53, 54 L.Ed.2d 71, 72 (1977).
16
This committee was made up of representatives from the following organizations: Parole and Probation Compact Administrators Association, National Association of Attorneys General, National Conference of Commissioners on Uniform State Laws, American Prison Association, and the Section on Criminal Law of the American Bar Association.
17
Among the 60 persons in attendance at the conference were representatives of the United States Department of Justice.
18
For good cause shown in open court, with either the prisoner or his counsel present, the court having jurisdiction over the matter may grant any necessary or reasonable continuance.
19
Article IV(a) states:
"The appropriate officer of the jurisdiction in which an untried indictment, information, or complaint is pending shall be entitled to have a prisoner against whom he has lodged a detainer and who is serving a term of imprisonment in any party State made available in accordance with article V(a) hereof upon presentation of a written request for temporary custody or availability to the appropriate authorities of the State in which the prisoner is incarcerated: Provided, That the court having jurisdiction of such indictment, information, or complaint shall have duly approved, recorded, and transmitted the request: And provided further, That there shall be a period of thirty days after receipt by the appropriate authorities before the request be honored, within which period the Governor of the sending State may disapprove the request for temporary custody or availability, either upon his own motion or upon motion of the prisoner."
20
In addition to the Court of Appeals for the Second Circuit, the following Courts of Appeals have rejected the Government's argument that it is only a sending State: the Third Circuit in United States v. Sorrell, 562 F.2d, at 232 n. 7; the First Circuit in United States v. Kenaan, 557 F.2d, at 915 n. 6; and the Fifth Circuit in United States v. Scallion, 548 F.2d, at 1174.
21
Under the Agreement "State" means "a State of the United States; the United States of America; a territory or possession of the United States; the District of Columbia; the Commonwealth of Puerto Rico." Art. II(a).
22
Both Committee Reports made express reference to the fact that the Agreement would enter into full force and effect upon passage. See H.R.Rep. No. 91-1018, p. 3 (1970); S.Rep. No. 91-1356, p. 3 (1970), U.S.Code Cong. & Admin.News 1970, p. 4864.
23
Prior to the Agreement, there were several means by which States could obtain prisoners from other jurisdictions, none of which was entirely satisfactory. The traditional method was the use of formal extradition proceedings. This required a request for the prisoner by the Governor of the receiving State. It was sent to the Governor of the State that had custody of the prisoner, and he was permitted to investigate the situation to determine if the prisoner should be surrendered. If the Governor agreed to the extradition, he issued an arrest warrant against the prisoner, who was then permitted to challenge the legality of his arrest.
Rather than going through this formal procedure some States entered into special contracts controlling the transfer of prisoners. The effort involved in arriving at such a contract, however, was often thought to outweigh the benefit of the simplified procedures unless there were frequent prisoner transfers between two States.
Because of problems with both of these methods, law enforcement authorities developed the informal practice of filing detainers against the prisoners; rather than seeking immediate transfer, the State would merely notify the State having custody of the prisoner that he was wanted at the completion of his sentence. This practice led to various problems, discussed in the text and n. 25, infra, that the Agreement sought to overcome. The Agreement also provided States with a simple and efficient means of obtaining prisoners from other States.
24
The subsequent administrative and congressional actions cited by the Government do not convince us that the United States was meant to be only a sending State. Neither the Justice Department's opinion, then or now, that the United States is not a receiving State under the Agreement nor the statement of a subsequent Congress (in a draft Committee Report concerning a bill never enacted) that the Agreement did not limit the scope and applicability of the writ of habeas corpus ad prosequendum warrants our departing from the clear wording of the Agreement. Nor do we view the subsequently enacted Speedy Trial Act of 1974, 18 U.S.C. § 3161 et seq. (1976 ed.), as being inconsistent with the United States' status as a receiving State. In situations in which two different sets of time limitations are prescribed, the more stringent limitation may simply be applied. Finally, we deem it irrelevant that bills currently pending in Congress, S. 1437, 95th Cong., 1st Sess., § 3201 (1977); H.R. 6869, 95th Cong., 1st Sess., § 3201 (1977), would limit the United States' participation as a receiving State to proceedings under only Art. III of the Agreement. That action demonstrates a view contrary to the Government's position that the United States should be a receiving State for no purposes; furthermore, it may be read as confirming the conclusion that the United States is currently a receiving State for all purposes.
25
Problems possibly resulting from this lack of judicial supervision have been described by the Court of Appeals for the Fourth Circuit:
"Detainers, informal aides [sic ] in interstate and intrastate criminal administration, often produce serious adverse side-effects. The very informality is one source of the difficulty. Requests to an imprisoning jurisdiction to detain a person upon his release so that another jurisdiction may prosecute or incarcerate him may be filed groundlessly, or even in bad faith, as suspected by the appellant in this case. The accusation in a detainer need not be proved; no judicial officer is involved in issuing a detainer. As often happens, the result of the then unestablished charge upon which the detainer in this case rested was that the detainee was seriously hampered in his quest for a parole or commutation." Pitts v. North Carolina, 395 F.2d 182, 187 (1968) (footnote omitted).
26
The Court of Appeals concluded that Art. IV's requirement that the prisoner be tried before he is returned to the sending State demonstrates a concern of the Agreement that prisoners not be shuttled back and forth between penal institutions. This problem, the court noted, is one that arises from the use of writs of habeas corpus ad prosequendum as well as from detainers. We agree with Judge Mansfield, however, that the real concern o this provision was that, if the prisoner were returned to the sending State prior to the disposition of the charges in the receiving State, the detainer previously lodged against him would remain in effect with all its attendant problems. These problems, of course, would not arise if a detainer had never been lodged and the writ alone had been used to remove the prisoner, for the writ would have run its course and would no longer be operative upon the prisoner's return to state custody.
27
The Government admits that a similar provision of the Speedy Trial Act referring to "a properly supported request for temporary custody of such prisoner for trial," 18 U.S.C. § 3161(j)(4) (1976 ed.), is properly interpreted as including an ad prosequendum writ. Brief for United States in No. 77-52, p. 48 n. 35. The difference, it says, is that the legislative history of the Speedy Trial Act shows that its provisions are to have broad applicability. This argument overlooks the fact that the Agreement, on its face, contains a similar expression of intent. Article IX states that "[t]his agreement shall be liberally construed so as to effectuate its purposes."
28
Both Committee Reports note that "a Governor's right to refuse to make a prisoner available is preserved . . . ." H.R.Rep. No. 91-1018, p. 2 (1970) (emphasis added); S.Rep. No. 91-1356, p. 2 (1970), U.S.Code Cong. & Admin.News 1970, p. 4865 (emphasis added). The Council of State Governments discussed the provision in similar terms: "[A] Governor's right to refuse to make the prisoner available (on public policy grounds) is retained." Council of State Governments, Suggested State Legislation Program for 1957, p. 78 (1956) (emphasis added).
29
The Government made it quite clear during oral argument that, despite the availability of writs of habeas corpus ad prosequendum, the United States makes great use of detainers and considers them to play an important function. See Tr. of Oral Arg. in No. 76-1596, p. 37. They serve to put the state prison officials on notice that the Federal Government has charges pending against a prisoner, even though his immediate prosecution may not be contemplated, and that he should not be released without the Government's being notified. We were informed that during a typical year federal courts issue approximately 5,000 ad prosequendum writs and that about 3,000 of those are in cases in which a detainer has previously been lodged against the prisoner. Tr. of Oral Arg. in No. 77-52, p. 13.
30
In arguing that Congress did not intend the word "request" to encompass writs of habeas corpus ad prosequendum, the dissent refers to legislative history indicating that the Agreement was not meant to be the exclusive means of effecting a transfer of a prisoner for purposes of prosecution. Nothing we have said today, however, is contrary to this intent. As our judgment in No. 76-1596 indicates, the Government need not proceed by way of the Agreement. It may obtain a state prisoner by means of an ad prosequendum writ without ever filing a detainer; in such a case, the Agreement is inapplicable. It is only when the Government does file a detainer that it becomes bound by the Agreement's provisions.
*
This Report is, of course, not overwhelmingly persuasive, given that it postdates the enactment of the Agreement and concerns a measure which was not even enacted into law at that time. Such so-called "subsequent legislative history" cannot "serve to change the legislative intent of Congress expressed before the Act's passage." Regional Rail Reorganization Act Cases, 419 U.S. 102, 132, 95 S.Ct. 335, 353, 42 L.Ed.2d 320 (1974). It does, however, represent the personal views of these legislators, ibid., and thus is not totally without significance, given that 12 of the 15 members of the Committee who issued the draft Report had been members of the same Committee which issued the original Report recommending adoption of the Agreement.
| 01
|
436 U.S. 371
98 S.Ct. 1852
56 L.Ed.2d 354
Lester BALDWIN et al., Appellants,v.FISH AND GAME COMMISSION OF MONTANA et al.
No. 76-1150.
Argued Oct. 5, 1977.
Decided May 23, 1978.
Syllabus
Appellants brought this action for declaratory and other relief claiming that the Montana statutory elk-hunting license scheme, which imposes substantially higher (at least 71/2 times) license fees on nonresidents of the State than on residents, and which requires nonresidents (but not residents) to purchase a "combination" license in order to be able to obtain a single elk, denies nonresidents their constitutional rights guaranteed by the Privileges and Immunities Clause of Art. IV, § 2, and by the Equal Protection Clause of the Fourteenth Amendment. A three-judge District Court denied all relief to appellants. Held:
1. Access by nonresidents to recreational big-game hunting in Montana does not fall within the category of rights protected by the Privileges and Immunities Clause. Only with respect to those "privileges" and "immunities" bearing upon the vitality of the Nation as a single entity must a State treat all citizens, resident and nonresident, equally, and here equality in access to Montana elk is not basic to the maintenance or well-being of the Union. Pp. 378-388.
2. The statutory scheme is an economic means not unreasonably related to the preservation of a finite resource, elk, and a substantial regulatory interest of that State, and hence does not violate the Equal Protection Clause. In view of the fact that residents contribute to the costs of maintaining the elk-hunting program, the great increase in nonresident hunters in recent years, the limit in the elk supply, and the difficulties in supervising hunting practices, it cannot be said that either the license fee differentials or the required combination license for nonresidents is irrational. Pp. 388-391.
D.C., 417 F.Supp. 1005, affirmed.
James H. Goetz, Bozeman, Mont., for appellants.
Paul A. Lenzini, Washington, D. C., for appellees.
Mr. Justice BLACKMUN delivered the opinion of the Court.
1
This case presents issues, under the Privileges and Immunities Clause of the Constitution's Art. IV, § 2, and the Equal Protection Clause of the Fourteenth Amendment, as to the constitutional validity of disparities, as between residents and nonresidents, in a State's hunting license system.
2
* Appellant Lester Baldwin is a Montana resident. He also is an outfitter holding a state license as a hunting guide. The majority of his customers are nonresidents who come to Montana to hunt elk and other big game. Appellants Carlson, Huseby, Lee and Moris are residents of Minnesota.1 They have hunted big game, particularly elk, in Montana in past years and wish to continue to do so.
3
In 1975, the five appellants, disturbed by the difference in the kinds of Montana elk-hunting licenses available to nonresidents, as contrasted with those available to residents of the State, and by the difference in the fees the nonresident and the resident must pay for their respective licenses, instituted the present federal suit for declaratory and injunctive relief and for reimbursement, in part, of fees already paid. App. 18-29. The defendants were the Fish and Game Commission of the State of Montana, the Commission's director, and its five commissioners. The complaint challenged the Montana elk-hunting licensing scheme specifically, and asserted that, as applied to nonresidents, it violated the Constitution's Privileges and Immunities Clause, Art. IV, § 2, and the Equal Protection Clause of the Fourteenth Amendment. A three-judge District Court was convened and, by a divided vote, entered judgment denying all relief to the plaintiff-appellants. Montana Outfitters Action Group v. Fish & Game Comm'n, 417 F.Supp. 1005 (Mont.1976). We noted probable j risdiction. 429 U.S. 1089, 97 S.Ct. 1096, 51 L.Ed.2d 534 (1977).2
II
4
The relevant facts are not in any real controversy and many of them are agreed:
5
A. For the 1975 hunting season, a Montana resident could purchase a license solely for elk for $4. The nonresident, however, in order to hunt elk, was required to purchase a combination license at a cost of $151; this entitled him to take one elk and two deer.3
6
For the 1976 season, the Montana resident could purchase a license solely for elk for $9. The nonresident, in order to hunt elk was required to purchase a combination license at a cost of $225;4 this entitled him to take one elk, one deer, one black bear, and game birds, and to fish with hook and line.5 A resident was not required to buy any combination of licenses, but if he did, the cost to him of all the privileges granted by the nonresident combination license was $30.6 The nonresident thus paid 71/2 times as much as the resident, and if the nonresident wished to hunt only elk, he paid 25 times as much as the resident.7
7
B. Montana, with an area of more than 147,000 square miles, is our fourth largest State. Only Alaska, Texas, and California, in that order, are larger. But its population is relatively small; in 1972 it was approximately 716,000.8 Its 1974 per capita income was 34th among the 50 States. App. 56-57.
8
Montana maintains significant populations of big game, including elk, deer, and antelope. Tr. 191. Its elk population is one of the largest in the United States. Elk are prized by big-game hunters who come from near and far to pursue the animals for sport.9 The quest for big game has grown in popularity. During the 10-year period from 1960 to 1970 licenses issued by Montana increased by approximately 67% for residents and by approximately 530% for nonresidents.10 App. 56-57.
9
Owing to its successful management programs for elk, the State has not been compelled to limit the overall number of hunters by means of drawings or lotteries as have other States with harvestable elk populations. Tr. 243. Elk are not hunted commercially in Montana.11 Nonresident hunters seek the animal for its trophy value; the trophy is the distinctive set of antlers. The interest of resident hunters more often may be in the meat. Id., at 245. Elk are now found in the mountainous regions of western Montana and are generally not encountered in the eastern two-thirds of the State where the plains prevail. Id., at 9-10, 249. During the summer the animals move to higher elevations and lands that are largely federally owned. In the late fall they move down to lower privately owned lands that provide the winter habitat necessary to their survival. During the critical midwinter period elk are often supported by ranchers. Id., at 46-47, 191, 285-286.12
10
Elk management is expensive. In regions of the State with significant elk population, more personnel time of the Fish and Game Commission is spent on elk than on any other species of big game. Defendants' Exhibit A, p. 9.
11
Montana has more than 400 outfitters who equip and guide hunting parties. Tr. 295. These outfitters are regulated and licensed by the State and provide services to hunters and fishermen. It is estimated that as many as half the nonresidents who hunt elk in western Montana utilize outfitters. Id., at 248. Three outfitter-witnesses testified that virtually all their clients were nonresidents. Id., at 141, 281, 307.
12
The State has a force of 70 game wardens. Each warden district covers approximately 2,100 square miles. Id., at 234. To assist wardens in law enforcement, Montana has an "equal responsibility" statute. Mont.Rev.Codes Ann. § 26-906 (Supp.1977). This law makes outfitters and guides equally responsible for unreported game-law violations committed by persons in their hunting parties. The outfitter thus, in a sense, is a surrogate warden and serves to bolster the State's warden force.
III
13
In the District Co rt the majority observed that the elk once was a plains animal but now roams the mountains of central and western Montana. About 75% of the elk taken are killed on federal land. The animal's preservation depends upon conservation. 417 F.Supp., at 1007. The majority noted that the appellants conceded that Montana constitutionally may charge nonresidents more for hunting privileges than residents. Id., at 1007-1008.13 It concluded, however, that on the evidence presented the 71/2-to-1 ratio in favor of the resident cannot be justified on any basis of cost allocation. Id., at 1008.
14
After satisfying itself as to standing14 and as to the existence of a justiciable controversy, and after passing comment upon the somewhat controversial subject of wild animal legal ownership, the court concluded that the State "has the power to manage and conserve the elk, and to that end to make such laws and regulations as are necessary to protect and preserve it." Id., at 1009. In reaching this result, the majority examined the nature of the rights asserted by the plaintiffs. It observed that there were just too many people and too few elk to enable everyone to hunt the animals. "If the elk is to survive as a species, the game herds must be managed, and a vital part of the management is the limitation of the annual kill." Ibid. Various means of limitation were mentioned, as was the fact that any one control device might deprive a particular hunter of any possibility of hunting elk. The right asserted by the appellants was "no more than a chance to engage temporarily in a recreational activity in a sister state" and was "not fundamental." Ibid. Thus, it was not protected as a privilege and an immunity under the Constitution's Art. IV, § 2. The majority contrasted the nature of the asserted right with educational needs at the primary and college levels, citing San Antonio School Dist. v. Rodriguez, 411 U.S. 1, 93 S.Ct. 1278, 36 L.Ed.2d 16 (1973), and Sturgis v. Washington, 368 F.Supp. 38 (WD Wash.), summarily aff'd, 414 U.S. 1057, 94 S.Ct. 563, 38 L.Ed.2d 464 (1973), and said: "There is simply no nexus between the right to hunt for sport and the right to speak, the right to vote, the right to travel, the right to pursue a calling." 417 F.Supp., at 1009. It followed that it was necessary only to determine whether the system bears some rational relationship to legitimate state purposes. Then:
15
"We conclude that where the opportunity to enjoy a recreational activity is created or supported by a state, where there is no nexus between the activity and any fundamental right, and where by its very nature the activity can be enjoyed by only a portion of those who would enjoy it, a state may prefer its residents over the residents of other states, or condition the enjoyment of the nonresident upon such terms as it sees fit." Id., at 1010.
16
The dissenting judge took issue with the "ownership theory," and with any "special public interest" theory, and emphasized the absence of any cost-allocation basis for the license fee differential. He described the majority's posture as one upholding discrimination because political support was thereby generated, and took the position that invidious discrimination was not to be justified by popular disapproval of equal treatment. Id., at 1012.
IV
17
Privileges and immunities. Appellants strongly urge here that the Montana licensing scheme for the hunting of elk v olates the Privileges and Immunities Clause15 of Art. IV, § 2, of our Constitution. That Clause is not one the contours of which have been precisely shaped by the process and wear of constant litigation and judicial interpretation over the years since 1789. If there is any significance in the fact, the Clause appears in the so-called States' Relations Article, the same Article that embraces the Full Faith and Credit Clause, the Extradition Clause (also in § 2), the provisions for the admission of new States, the Territory and Property Clause, and the Guarantee Clause. Historically, it has been overshadowed by the appearance in 1868 of similar language in § 1 of the Fourteenth Amendment,16 and by the continuing controversy and consequent litigation that attended that Amendment's enactment and its meaning and application.
18
The Privileges and Immunities Clause originally was not isolated from the Commerce Clause, now in the Constitution's Art. I, § 8. In the Articles of Confederation, where both Clauses have their source, the two concepts were together in the fourth Article.17 See Austin v. New Hampshire, 420 U.S. 656, 660-661, 95 S.Ct. 1191, 1194-1195, 43 L.Ed.2d 530 (1975); Lemmon v. People, 20 N.Y. 562, 627 (1860) (opinion of Wright, J.). Their separation may have been an assurance against an anticipated narrow reading of the Commerce Clause. See Ward v. Maryland, 12 Wall. 418, 430-432, 20 L.Ed. 449 (1871).
19
Perhaps because of the imposition of the Fourteenth Amendment upon our constitutional consciousness and the extraordinary emphasis that the Amendment received, it is not surprising that the contours of Art. IV, § 2, cl. 1, are not well developed,18 and that the relationship, if any, between the Privileges and Immunities Clause and the "privileges or immunities" language of the Fourteenth Amendment is less than clear. We are, nevertheless, not without some pronouncements by this Court as to the Clause's significance and reach. There are at least three general comments that deserve mention:
20
The first is that of Mr. Justice Field, writing for a unanimous Court in Paul v. Virginia, 8 Wall. 168, 180, 19 L.Ed. 357 (1869). He emphasized nationalism, the proscription of discrimination, and the assurance of equality of all citizens within any State:
21
"It was undoubtedly the object of the clause in question to place the citizens of each State upon the same footing with citizens of other States, so far as the advantages resulting from citizenship in those States are concerned. It relieves them from the disabilities of alienage in other States; it inhibits discriminating legislation against them by other States; it gives them the right of free ingress into other States, and egress from them; it insures to them in other States the same freedom possessed by the citizens of those States in the acquisition and enjoyment of property and in the pursuit of happiness; and it secures to them in other States the equal protection of their laws. It has been justly said that no provision in the Constitution has tended so strongly to constitute the citizens of the United States one people as this."19
22
The second came 70 years later when Mr. Justice Roberts, writing for himself and Mr. Justice Black in Hague v. CIO, 307 U.S. 496, 511, 59 S.Ct. 954, 962, 83 L.Ed. 1423 (1939), summed up the history of the Clause and pointed out what he felt to be the difference in analysis in the earlier cases from the analysis in later ones:
23
"As has been said, prior to the adoption of the Fourteenth Amendment, there had been no constitutional definition of citizenship of the United States, or of the rights, privileges, and immunities secured thereby or springing therefrom. . . .
24
"At one time it was thought that this section recognized a group of rights which, according to the jurisprudence of the day, were classed as 'natural rights'; and that the purpose of the section was to create rights of citizens of the United States by guaranteeing the citizens of every State the recognition of this group of rights by every other State. Such was the view of Justice Washington.
25
"While this description of the civil rights of the citizens of the States has been quoted with approval, it has come to be the settled view that Article IV, § 2, does not import that a citizen of one State carries with him into another fundamental privileges and immunities which come to him necessarily by the mere fact of his citizenship in the State first mentioned, but, on the contrary, that in any State every citizen of any other State is to have the same privileges and immunities which the citizens of that State enjoy. The section, in effect, prevents a State from discriminating against citizens of other States in favor of its own." (Footnotes omitted.)
26
The third and most recent general pronouncement is that authored by Mr. Justice Marshall for a nearly unanimous Court in Austin v. New Hampshire, 420 U.S. 656, 660-661, 95 S.Ct. 1191, 1194, 43 L.Ed.2d 530 (1975), stressing the Clause's "norm of comity" and the Framers' concerns:
27
"The Clause thus establishes a norm of comity without specifying the particular subjects as to which citizens of one State coming within the jurisdiction of another are guaranteed equality of treatment. The origins of the Clause do reveal, however, the concerns of central import to the Framers. During the preconstitutional period, the practice of some States denying to outlanders the treatment that its citizens deman ed for themselves was widespread. The fourth of the Articles of Confederation was intended to arrest this centrifugal tendency with some particularity. . . .
28
* * * * *
29
"The discriminations at which this Clause was aimed were by no means eradicated during the short life of the Confederation, and the provision was carried over into the comity article of the Constitution in briefer form but with no change of substance or intent, unless it was to strengthen the force of the Clause in fashioning a single nation." (Footnotes omitted.)
30
When the Privileges and Immunities Clause has been applied to specific cases, it has been interpreted to prevent a State from imposing unreasonable burdens on citizens of other States in their pursuit of common callings within the State, Ward v. Maryland, 12 Wall. 418, 20 L.Ed. 449 (1871); in the ownership and disposition of privately held property within the State, Blake v. McClung, 172 U.S. 239, 19 S.Ct. 165, 43 L.Ed. 432 (1898); and in access to the courts of the State, Canadian Northern R. Co. v. Eggen, 252 U.S. 553, 40 S.Ct. 402, 64 L.Ed. 713 (1920).
31
It has not been suggested, however, that state citizenship or residency may never be used by a State to distinguish among persons. Suffrage, for example, always has been understood to be tied to an individual's identification with a particular State. See, e. g., Dunn v. Blumstein, 405 U.S. 330, 92 S.Ct. 995, 31 L.Ed.2d 274 (1972). No one would suggest that the Privileges and Immunities Clause requires a State to open its polls to a person who declines to assert that the State is the only one where he claims a right to vote. The same is true as to qualification for an elective office of the State. Kanapaux v. Ellisor, 419 U.S. 891, 95 S.Ct. 169, 42 L.Ed.2d 136 (1974); Chimento v. Stark, 353 F.Supp. 1211 (NH), summarily aff'd, 414 U.S. 802, 94 S.Ct. 125, 38 L.Ed.2d 39 (1973). Nor must a State always apply all its laws or all its services equally to anyone, resident or nonresident, who may request it so to do. Canadian Northern R. Co. v. Eggen, supra ; cf. Sosna v. Iowa, 419 U.S. 393, 95 S.Ct. 553, 42 L.Ed.2d 532 (1975); Shapiro v. Thompson, 394 U.S. 618, 89 S.Ct. 1322, 22 L.Ed.2d 600 (1969). Some distinctions between residents and nonresidents merely reflect the fact that this is a Nation composed of individual States, and are permitted; other distinctions are prohibited because they hinder the formation, the purpose, or the development of a single Union of those States. Only with respect to those "privileges" and "immunities" bearing upon the vitality of the Nation as a single entity must the State treat all citizens, resident and nonresident, equally. Here we must decide into which category falls a distinction with respect to access to recreational big-game hunting.
32
Many of the early cases embrace the concept that the States had complete ownership over wildlife within their boundaries, and, as well, the power to preserve this bounty for their citizens alone. It was enough to say "that in regulating the use of the common property of the citizens of [a] state, the legislature is [not] bound to extend to the citizens of all the other states the same advantages as are secured to their own citizens." Corfield v. Coryell, 6 F.Cas. 546, 552 (No. 3,230) (CC ED Pa.1825). It appears to have been generally accepted that although the States were obligated to treat all those within their territory equally in most respects, they were not obliged to share those things they held in trust for their own people. In Corfield, a case the Court has described as "the first, and long the leading, explication of the [Privileges and Immunities] Clause," see Austin v. New Hampshire, 420 U.S., at 661, 95 S.Ct., at 1195, Mr. Justice Washington, sitting as Circuit Justice, although recognizing that the States may not interfere with the "right of a citizen of one state to pass through, or to reside in any other state, for purpos § of trade, agriculture, professional pursuits, or otherwise; to claim the benefit of the writ of habeas corpus; to institute and maintain actions of any kind in the courts of the state; to take, hold and dispose of property, either real or personal,"20 6 F.Cas., at 552, nonetheless concluded that access to oyster beds determined to be owned by New Jersey could be limited to New Jersey residents. This holding, and the conception of state sovereignty upon which it relied, formed the basis for similar decisions during later years of the 19th century. E. g., McCready v. Virginia, 94 U.S. 391, 24 L.Ed. 248 (1877); Geer v. Connecticut, 161 U.S. 519, 16 S.Ct. 600, 40 L.Ed. 793 (1896).21 See Rosenfeld v. Jakways, 67 Mont. 558, 216 P. 776 (1923). In Geer, a case dealing with Connecticut's authority to limit the disposition of game birds taken within its boundaries, the Court roundly rejected the contention "that a State cannot allow its own people the enjoyment of the benefits of the property belonging to them in common, without at the same time permitting the citizens of other States to participate in that which they do not own." 161 U.S., at 530, 16 S.Ct., at 604.
33
In more recent years, however, the Court has recognized that the States' interest in regulating and controlling those things they claim to "own," including wildlife, is by no means absolute. States may not compel the confinement of the benefits of their resources, even their wildlife, to their own people whenever such hoarding and confinement impedes interstate commerce. Foster-Fountain Packing Co. v. Haydel, 278 U.S. 1, 49 S.Ct. 1, 73 L.Ed. 147 (1928); Pennsylvania v. West Virginia, 262 U.S. 553, 43 S.Ct. 658, 67 L.Ed. 1117 (1923); West v. Kansas Natural Gas Co., 221 U.S. 229, 31 S.Ct. 564, 55 L.Ed. 716 (1911). Nor does a State's control over its resources preclude the proper exercise of federal power. Douglas v. Seacoast Products, Inc., 431 U.S. 265, 97 S.Ct. 1740, 52 L.Ed.2d 304 (197 ); Kleppe v. New Mexico, 426 U.S. 529, 96 S.Ct. 2285, 49 L.Ed.2d 34 (1976); Missouri v. Holland, 252 U.S. 416, 40 S.Ct. 382, 64 L.Ed. 641 (1920). And a State's interest in its wildlife and other resources must yield when, without reason, it interferes with a nonresident's right to pursue a livelihood in a State other than his own, a right that is protected by the Privileges and Immunities Clause. Toomer v. Witsell, 334 U.S. 385, 68 S.Ct. 1156, 92 L.Ed. 1460 (1948). See Takahashi v. Fish & Game Comm'n, 334 U.S. 410, 68 S.Ct. 1138, 92 L.Ed. 1478 (1948).
34
Appellants contend that the doctrine on which Corfield, McCready, and Geer all relied has no remaining vitality. We do not agree. Only last Term, in referring to the "ownership" or title language of those cases and characterizing it "as no more than a 19th-century legal fiction," the Court pointed out that that language nevertheless expressed " 'the importance to its people that a State have power to preserve and regulate the exploitation of an important resource.' " Douglas v. Seacoast Products, Inc., 431 U.S., at 284, 97 S.Ct., at 1751, citing Toomer v. Witsell, 334 U.S., at 402, 68 S.Ct., at 1165. The fact that the State's control over wildlife is not exclusive and absolute in the face of federal regulation and certain federally protected interests does not compel the conclusion that it is meaningless in their absence.
35
We need look no further than decisions of this Court to know that this is so. It is true that in Toomer v. Witsell the Court in 1948 struck down a South Carolina statute requiring nonresidents of the State to pay a license fee of $2,500 for each commercial shrimp boat, and residents to pay a fee of only $25, and did so on the ground that the statute violated the Privileges and Immunities Clause. Id., at 395-403, 68 S.Ct., at 1161-1165. See also Mullaney v. Anderson, 342 U.S. 415, 72 S.Ct. 428, 96 L.Ed. 458 (1952), another commercial-livelihood case. Less than three years, however, after the decision in Toomer, so heavily relied upon by appellants here, the Court dismissed for the want of a substantial federal question an appeal from a decision of the Supreme Court of South Dakota holding that the total exclusion from that State of nonresident hunters of migratory waterfowl was justified by the State's assertion of a special interest in wildlife that qualified as a substantial reason for the discrimination. State v. Kemp, 73 S.D. 458, 44 N.W.2d 214 (1950), appeal dismissed, 340 U.S. 923, 71 S.Ct. 498, 95 L.Ed. 667 (1951). In that case South Dakota had proved that there was real danger that the flyways, breeding grounds, and nursery for ducks and geese would be subject to excessive hunting and possible destruction by nonresident hunters lured to the State by an abundance of pheasants. 73 S.D., at 464, 44 N.W.2d, at 217.
36
Appellants have demonstrated nothing to convince us that we should completely reject the Court's earlier decisions. In his opinion in Coryell, Mr. Justice Washington, although he seemingly relied on notions of "natural rights" when he considered the reach of the Privileges and Immunities Clause, included in his list of situations, in which he believed the States would be obligated to treat each other's residents equally, only those where a nonresident sought to engage in an essential activity or exercise a basic right. He himself used the term "fundamental," 6 F.Cas., at 551, in the modern as well as the "natural right" sense. Certainly Mr. Justice Field and the Court invoked the same principle in the language quoted above from Paul v. Virginia, 8 Wall., at 180, 19 L.Ed. 357. So, too, did the Court by its holdings in Ward v. Maryland, Canadian Northern R. Co. v. Eggen, and Blake v. McClung, all supra, when it was concerned with the pursuit of common callings, the ability to transfer property, and access to courts, respectively. And comparable status of the activity involved was apparent in Too er, the commercial-licensing case. With respect to such basic and essential activities, interference with which would frustrate the purposes of the formation of the Union, the States must treat residents and nonresidents without unnecessary distinctions.
37
Does the distinction made by Montana between residents and nonresidents in establishing access to elk hunting threaten a basic right in a way that offends the Privileges and Immunities Clause? Merely to ask the question seems to provide the answer. We repeat much of what already has been said above: Elk hunting by nonresidents in Montana is a recreation and a sport. In itself wholly apart from license fees—it is costly and obviously available only to the wealthy nonresident or to the one so taken with the sport that he sacrifices other values in order to indulge in it and to enjoy what it offers. It is not a means to the nonresident's livelihood. The mastery of the animal and the trophy are the ends that are sought; appellants are not totally excluded from these. The elk supply, which has been entrusted to the care of the State by the people of Montana, is finite and must be carefully tended in order to be preserved.
38
Appellants' interest in sharing this limited resource on more equal terms with Montana residents simply does not fall within the purview of the Privileges and Immunities Clause. Equality in access to Montana elk is not basic to the maintenance or well-being of the Union. Appellants do not—and cannot—contend that they are deprived of a means of a livelihood by the system or of access to any part of the State to which they may seek to travel. We do not decide the full range of activities that are sufficiently basic to the livelihood of the Nation that the States may not interfere with a nonresident's participation therein without similarly interfering with a resident's participation. Whatever rights or activities may be "fundamental" under the Privileges and Immunities Clause, we are persuaded, and hold, that elk hunting by nonresidents in Montana is not one of them.
V
39
Equal protection. Appellants urge, too, that distinctions drawn between residents and nonresidents are not permissible under the Equal Protection Clause of the Fourteenth Amendment when used to allocate access to recreational hunting. Appellees argue that the State constitutionally should be able to charge nonresidents, who are not subject to the State's general taxing power, more than it charges it residents, who are subject to that power and who already have contributed to the programs that make elk hunting possible. Appellees also urge that Montana, as a State, has made sacrifices in its economic development, and therefore in its tax base, in order to preserve the elk and other wildlife within the State and that this, too, must be counted, along with actual tax revenues spent, when computing the fair share to be paid by nonresidents. We need not commit ourselves to any particular method of computing the cost to the State of maintaining an environment in which elk can survive in order to find the State's efforts rational, and not invidious, and therefore not violative of the Equal Protection Clause.
40
A repetitious review of the factual setting is revealing: The resident obviously assists in the production and maintenance of big-game populations through taxes. The same taxes provide support for state parks utilized by sportsmen, Plaintiffs' Exhibit 1; for roads providing access to the hunting areas, Tr. 156-158, 335; for fire suppression to protect the wildlife habitat, id., at 167; for benefits to the habitat effected by the State's Environmental Quality Council, id., at 163-165; for the enforcement of state air and water quality standards, id., at 223-224; for assistance by sheriffs' departments to enforce game laws, Defendants' Exhibit G, p. 13; and for state highway patrol officers who assist wildlife officers at game checking stations and in enforcement of game laws. Forage support by r sident ranchers is critical for winter survival. Tr. 46-47, 286. All this is on a continuing basis.
41
On the other side of the same ledger is the great, and almost alarming, increase in the number of nonresident hunters—in the decade of the 1960's, almost eight times the increase in resident hunters; the group character of much nonresident hunting, with its opportunity for license "swapping" when the combination license system is not employed, id., at 237;22 the intermingling of deer and elk in the wild and the inexperienced hunter's inability to tell one from the other; the obvious limit in the elk supply; the supposition that the nonresident occasional and short-term visitor is more likely to commit game-law violations; the need to supervise hunting practices in order to prevent violations and illegal overkill; and the difficulties of supervision in the primitive areas where the elk is found during the hunting season.
42
All this adds up, in our view, to no irrationality in the differences the Montana Legislature has drawn in the costs of its licenses to hunt elk. The legislative choice was an economic means not unreasonably related to the preservation of a finite resource and a substantial regulatory interest of the State. It serves to limit the number of hunter days in the Montana elk country. There is, to be sure, a contrasting cost feature favorable to the resident, and, perhaps, the details and the figures might have been more precisely fixed and more closely related to basic costs to the State. But, as has been noted, appellants concede that a differential in cost between residents and nonresidents is not in itself invidious or unconstitutional. And "a statutory classification impinging upon no fundamental interest . . . need not be drawn so as to fit with precision the legitimate purposes animating it. . . . That [Montana] might have furthered its underlying purpose more artfully, more directly, or more completely, does not warrant a conclusion that the method it chose is unconstitutional." Hughes v. Alexandria Scrap Corp., 426 U.S. 794, 813, 96 S.Ct. 2488, 2499, 49 L.Ed.2d 220 (1976).23
43
Appellants also contend that the requirement that nonresident, but not resident, hunters must purchase combination licenses in order to be able to obtain a single elk is arbitrary. In the District Court the State introduced evidence, largely uncontradicted, that nonresident hunters create greater enforcement problems and that some of these problems are alleviated by this requirement. The District Court's majority appears to have found this evidence credible and the justification rational, and we are in no position to disagree. Many of the same factors just listed in connection with the license fee differential have equal pertinency for the combination license requirement. We perceive no duty on the State to have its licensing structure parallel or identical for both residents and nonresidents, or to justify to the penny any cost differential it imposes in a purely recreational, noncommercial, nonlivelihood setting. Rationalit is sufficient. That standard, we feel, has been met by Montana. So long as constitutional requirements have been met, as we conclude is the case here, "[p]rotection of the wild life of the State is peculiarly within the police power, and the State has great latitude in determining what means are appropriate for its protection." Lacoste v. Department of Conservation, 263 U.S. 545, 552, 44 S.Ct. 186, 189, 68 L.Ed. 437 (1924).24
44
The judgment of the District Court is affirmed.
45
It is so ordered.
46
Mr. Chief Justice BURGER, concurring.
47
In joining the Court's opinion I write separately only to emphasize the significance of Montana's special interest in its elk population and to point out the limits of the Court's holding.
48
The doctrine that a State "owns" the wildlife within its borders as trustee for its citizens, see Geer v. Connecticut, 161 U.S. 519, 16 S.Ct. 600, 40 L.Ed. 793 (1896), is admittedly a legal anachronism of sorts. See Douglas v. Seacoast Products, Inc., 431 U.S. 265, 284, 97 S.Ct. 1740, 1751, 52 L.Ed.2d 340 (1977). A State does not "own" wild birds and animals in the same way that it may own other natural resources such as land, oil, or timber. But, as noted in the Court's opinion, ante, at 386, and contrary to the implications of the dissent, the doctrine is not completely obsolete. It manifests the State's special interest in regulating and preserving wildlife for the benefit of its citizens. See Douglas v. Seacoast Products, Inc., supra, at 284, 287, 97 S.Ct., at 1753. Whether we describe this interest as proprietary or otherwise is not significant.
49
We recognized in Toomer v. Witsell, 334 U.S. 385, 401-402, 68 S.Ct. 1156, 1164-1165, 92 L.Ed. 1490 (1948), that the doctrine does not apply to migratory shrimp located in the three-mile belt of the marginal sea. But the elk involved in this case are found within Montana and remain primarily within the State. As such they are natural resources of the State, and Montana citizens have a legitimate interest in preserving their access to them. The Court acknowledges this interest when it points out that the Montana elk supply "has been entrusted to the care of the State by the people of Montana," ante, at 388, and asserts the continued vitality of the doctrine upon which the court relied in Corfield v. Coryell, 6 F.Cas. 546, 552 (No. 3,230) (CC ED Pa.1825); McCready v. Virginia, 94 U.S. 391, 24 L.Ed. 248 (1877); and Geer v. Connecticut, supra. See ante, at 386.
50
McCready v. Virginia, supra, made it clear that the Privileges and Immunities Clause does not prevent a State from preferring its own citizens in granting public access to natural resources in which they have a special interest. Thus Montana does not offend the Privileges and Immunities Clause by granting residents preferred access to natural resources that do not belong to private owners. And Montana may give its residents preferred access to Montana elk without offending the Privileges and Immunities Clause.
51
It is not necessary to challenge the cases cited by the dissent, post, at 405, which make clear that a State does not have absolute freedom to reg late the taking of wildlife within its borders or over its airspace. A State may not regulate the killing of migratory game birds in a way that frustrates a valid treaty of the United States entered into pursuant to the Art. II, § 2, treaty power, Missouri v. Holland, 252 U.S. 416, 434, 40 S.Ct. 382, 64 L.Ed. 641 (1920); it may not regulate wild animals found on federal lands in a way that conflicts with federal statutes enacted under the Property Clause, Art. IV, § 3, cl. 2, Kleppe v. New Mexico, 426 U.S. 529, 546, 96 S.Ct. 2285, 49 L.Ed.2d 34 (1976); nor may it allocate access to its wildlife in a manner that offends the Fourteenth Amendment. Takahashi v. Fish & Game Comm'n, 334 U.S. 410, 68 S.Ct. 1138, 92 L.Ed. 1478 (1948). Once wildlife becomes involved in interstate commerce, a State may not restrict the use of or access to that wildlife in a way that burdens interstate commerce. Douglas v. Seacoast Products, Inc., supra, 431 U.S., at 281-282, 97 S.Ct., at 1750; Foster-Fountain Packing Co. v. Haydel, 278 U.S. 1, 49 S.Ct. 1, 73 L.Ed. 147 (1928). None of those cases hold that the Privileges and Immunities Clause prevents a State from preferring its own citizens in allocating access to wildlife within that State.
52
It is the special interest of Montana citizens in its elk that permits Montana to charge nonresident hunters higher license fees without offending the Privileges and Immunities Clause. The Court does not hold that the Clause permits a State to give its residents preferred access to recreational activities offered for sale by private parties. Indeed it acknowledges that the Clause requires equality with respect to privileges "bearing upon the vitality of the Nation as a single entity." Ante, at 383. It seems clear that those basic privileges include "all the privileges of trade and commerce" which were protected in the fourth Article of the Articles of Confederation. See Austin v. New Hampshire, 420 U.S. 656, 660-661, and n. 6, 95 S.Ct. 1191, 1194-1195, and n. 6, 43 L.Ed.2d 530 (1975). The Clause assures noncitizens the opportunity to purchase goods and services on the same basis as citizens; it confers the same protection upon the buyer of luxury goods and services as upon the buyer of bread.
53
Mr. Justice BRENNAN, with whom Mr. Justice WHITE and Mr. Justice MARSHALL join, dissenting.
54
Far more troublesome than the Court's narrow holding—elk hunting in Montana is not a privilege or immunity entitled to protection under Art. IV, § 2, cl. 1, of the Constitution—is the rationale of the holding that Montana's elk-hunting licensing scheme passes constitutional muster. The Court concludes that because elk hunting is not a "basic and essential activit[y], interference with which would frustrate the purposes of the formation of the Union," ante, at 387, the Privileges and Immunities Clause of Art. IV, § 2—"The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States"—does not prevent Montana from irrationally, wantonly, and even invidiously discriminating against nonresidents seeking to enjoy natural treasures it alone among the 50 States possesses. I cannot agree that the Privileges and Immunities Clause is so impotent a guarantee that such discrimination remains wholly beyond the purview of that provision.
55
* It is true that because the Clause has not often been the subject of litigation before this Court, the precise scope of the protection it affords the citizens of each State in their sister States remains to be defined. Much of the uncertainty is, no doubt, a product of Mr. Justice Washington's exposition of its scope in Corfield v. Coryell, 6 F.Cas. 546, 551 (No. 3,230) (CC ED Pa.1825), where he observed:
56
"[W]hat are the privileges and immunities of citizens in the several states? We feel no hesitation in confining these expressions to those privileges and immunities which are, in their nature, fundamental; which belong, of rig t, to the citizens of all free governments ; and which have, at all times, been enjoyed by the citizens of the several states which compose this Union, from the time of their becoming free, independent, and sovereign." (Emphasis added.)
57
Among these "fundamental" rights he included "[p]rotection by the government; . . . [t]he right of a citizen of one state to pass through, or to reside in any other state, for purposes of trade, agriculture, professional pursuits, or otherwise; to claim the benefit of the writ of habeas corpus; to institute and maintain actions of any kind in the courts of the state; to take, hold and dispose of property, either real or personal; and an exemption from higher taxes or impositions than are paid by the other citizens of the state." Id., at 551-552. These rights, only the last of which was framed in terms of discriminatory treatment, were to be enjoyed "by the citizens of each state, in every other state . . .." Id., at 552. As both the italicized language and the list of rights designed as falling within the compass of Art. IV, § 2, cl. 1, make clear, Mr. Justice Washington believed that the Clause was designed to guarantee certain "fundamental" rights to all United States citizens, regardless of the rights afforded by a State to its own citizens. In Hague v. CIO, 307 U.S. 496, 511, 59 S.Ct. 954, 962, 83 L.Ed. 1423 (1939), Mr. Justice Roberts so characterized Mr. Justice Washington's view: "At one time it was thought that [Art. IV, § 2, cl. 1] recognized a group of rights which, according to the jurisprudence of the day, were classed as 'natural rights'; and that the purpose of the section was to create rights of citizens of the United States by guaranteeing the citizens of every State the recognition of this group of rights by every other State. Such was the view of Justice Washington."
58
That Mr. Justice Washington thought Art. IV, § 2, cl. 1, to embody a guarantee of "natural rights" is not surprising. It revealed his preference for that determination of the controversy raging in his time over the significance of "natural rights" in constitutional adjudication.
59
"Behind the 1825 Corfield opinion lay the nineteenth century controversy over the status of 'natural rights' in constitutional litigation. Some judges had supposed an inherent limitation on state and federal legislation that compelled courts to strike down any law 'contrary to the first great principles of the social compact.' They were the proponents of the natural rights doctrine which, without specific constitutional moorings, posited 'certain vital principles in our free republican governments, which will determine and overrule an apparent abuse of legislative powers.'
60
"Corfield can be understood as an attempt to import the natural rights doctrine into the Constitution by way of the privileges and immunities clause of article IV. By attaching the fundamental rights of state citizenship to the privileges and immunities clause, Justice Washington would have created federal judicial protection against state encroachment upon the 'natural rights' of citizens." L. Tribe, American Constitutional Law 405-406 (1978) (footnotes omitted).
61
What is surprising, however, is the extent to which Corfield 's view of the Clause as protecting against governmental encroachment upon "natural rights" continued to influence interpretation of the Clause1 even after Mr. Justice Washington's view was seemingly discarded in Paul v. Virginia, 8 Wall. 168, 19 L.Ed. 357 (1869), and replaced by the view that the measure of the rights secured to nonresidents2 was the extent of the rights afforded by a State to its own citizens. Paul announced that "[i]t was undoubtedly the object of the clause . . . to place the citizens of each State upon the same footing with citizens of other States, so far as the advantages resulting from citizenship in those States are concerned." Id., at 180 (emphasis added). But during the 79 years between Paul and our decision in Toomer v. Witsell, 334 U.S. 385, 68 S.Ct. 1156, 92 L.Ed. 1490 (1948), Art. IV, § 2, cl. 1, was given an anomalous and unduly restrictive scope. Mr. Justice Washington's expansive interpretation of "privileges and immunities" as broadly insuring a host of rights against all government interference was superimposed on Paul § conception of the Clause as prohibiting a State from unjustifiably discriminating against nonresidents—a view of Art. IV, § 2, cl. 1, that I think correct—with the result that the Clause's guarantee was held to prohibit a State from denying to citizens of other States only those "fundamental" rights that it guaranteed to its own citizens. Cf. Minor v. Happersett, 21 Wall. 162, 174, 22 L.Ed. 627 (1875). Yet because nonresidents could present special problems for a State in the administration of its laws even where rights thought to be "fundamental" were involved, this conception of Art. IV, § 2, cl. 1, born of the commingling of two disparate views of the Clause that were never meant to mate, proved difficult of rigid application. Thus, although Mr. Justice Washington listed the right "to institute and maintain actions of any kind in the courts of the state" as one of the "fundamental" rights within the ambit of Art. IV, § 2, cl. 1, Corfield v. Coryell, supra, at 552, this Court upheld state statutes that denied nonresidents precisely the same access to state courts as was guaranteed residents. Chemung Canal Bank v. Lowery, 93 U.S. 72, 23 L.Ed. 806 (1876), for example, upheld a Wisconsin statute that tolled the statute of limitations on a cause of action against a defendant absent from the State only when the plaintiff was a Wisconsin resident; the ground was that "[t]here is, in fact, a valid reason for the discrimination." Id., at 77.3 Similarly, Canadian Northern R. Co. v. Eggen, 252 U.S. 553, 40 S.Ct. 402, 64 L.Ed. 713 (1920), sanctioned a Minnesota provision that allowed only citizens of that State to sue in state court on a cause of action arising out of the State that would have been barred by the statute of limitations in the State where the cause of action arose. The Court found that such a statute did not, in the words of Blake v. McClung, 172 U.S. 239, 256, 19 S.Ct. 165, 172, 43 L.Ed. 432 (1898), " 'materially interfer[e] with the enjoyment by citizens of each State of the privileges and immunities secured by the Constitution to citizens of the several States.' " Canadian Northern R. Co. v. Eggen, supra, 252 U.S. at 562, 40 S.Ct. at 404.
62
Mr. Justice Roberts' analysis of the Privileges and Immunities Clause of Art. IV, § 2, in Hague v. CIO, upra, was the first noteworthy modern pronouncement on the Clause from this Court. Not only did Mr. Justice Roberts recognize that Corfield § view of the Privileges and Immunities Clause might, and should be, properly interred as the product of a bygone era, but also he went on to emphasize the interpretation of the scope of the Clause proposed in Paul v. Virginia, supra, namely, that "[t]he section, in effect, prevents a State from discriminating against citizens of other States in favor of its own." 307 U.S., at 511, 59 S.Ct., at 962. In singling out this passage as one of "three general comments [on the Clause] that deserve mention," ante, at 380, the Court acknowledges the significance of Mr. Justice Roberts' statement, but, with all respect, errs in not also appreciating that the Roberts statement signaled the complete demise of the Court's acceptance of Corfield § definition of the type of rights encompassed by the phrase "privileges and immunities." No longer would that definition be controlling, or even relevant, in evaluating whether the discrimination visited by a State on nonresidents vis-a-vis its own citizens passed constitutional muster.
63
Less than a decade after Hague, Toomer v. Witsell, supra, embraced and applied the Roberts interpretation of the Clause. In Toomer, a South Carolina statute that required nonresidents to pay a fee 100 times greater than that paid by residents for a license to shrimp commercially in the three-mile maritime belt off the coast of that State was held to be violative of the Clause. After stating that the Clause "was designed to insure to a citizen of State A who ventures into State B the same privileges which the citizens of State B enjoy," 334 U.S., at 395, 68 S.Ct., at 1162, the Court set out the standard against which a State's differential treatment of nonresidents would be evaluated.
64
"Like many other constitutional provisions, the privileges and immunities clause is not an absolute. It does bar discrimination against citizens of other States where there is no substantial reason for the discrimination beyond the mere fact that they are citizens of other States. But it does not preclude disparity of treatment in the many situations where there are perfectly valid independent reasons for it. Thus the inquiry in each case must be concerned with whether such reasons do exist and whether the degree of discrimination bears a close relation to them. The inquiry must also, of course, be conducted with due regard for the principle that the States should have considerable leeway in analyzing local evils and in prescribing appropriate cures." Id., at 396, 68 S.Ct., at 1162, (emphasis added) (footnote omitted).
65
Unlike the relatively minimal burden of rationality South Carolina would have had to satisfy in defending a law not infringing on a "fundamental" interest against an equal protection attack, see Hughes v. Alexandria Scrap Corp., 426 U.S. 794, 96 S.Ct. 2488, 49 L.Ed.2d 220 (1976), the State could not meet the plaintiffs' privileges and immunities challenge simply by asserting that the discrimination was a rational means for fostering a legitimate state interest. Instead, even though an important state objective—conservation—was at stake, Toomer held that a classification based on the fact of noncitizenship was constitutionally infirm "unless there is something to indicate that non-citizens constitute a peculiar source of the evil at which the statute is aimed." 334 U.S., at 398, 68 S.Ct., at 1163. Moreover, even where the problem the State is attempting to remedy is linked to the presence or activity of nonresidents in the State, the Clause requires that there be "a reasonable relationship between the danger represented by non-citizens, as a class, and the . . . discrimination practiced upon them." Id., at 399, 68 S.Ct., at 1164.
66
Toomer was followed in Mullaney v. Anderson, 342 U.S. 415, 72 S.Ct. 428, 96 L.Ed. 458 (19 2). In Mullaney, the scheme employed by the Territorial Legislature of Alaska for the licensing of commercial fishermen in territorial waters, which imposed a $5 license fee on resident fishermen and a $50 fee on nonresidents, was found invalid under the Clause. Although the Court reaffirmed its observation in Toomer that a State may "charge non-residents a differential which would merely compensate the State for any added enforcement burden they may impose or for any conservation expenditures from taxes which only residents pay," 342 U.S., at 417, 72 S.Ct., at 430, the Court found that Alaska's mere assertion of these justifications was insufficient to sustain the fee differential in licensing in the face of evidence that, in the case under review, the justifications had no basis in fact.
67
Neither Toomer nor Mullaney cited Corfield or discussed whether commercial fishing was the type of "fundamental" right entitled to protection under Mr. Justice Washington's view of the Privileges and Immunities Clause. Although the Court in Toomer did "hold that commercial shrimping in the marginal sea, like other common callings, is within the privileges and immunities clause," 334 U.S., at 403, 68 S.Ct., at 1165, its statement to this effect was conclusory and clearly secondary to its extensive analysis of whether South Carolina's discrimination against nonresidents was properly justified. The State's justification for its discrimination against nonresidents was also the focus of the privileges and immunities analysis in Doe v. Bolton, 410 U.S. 179, 93 S.Ct. 739, 35 L.Ed.2d 201 (1973), which summarily added "medical services" to the panoply of privileges protected by the Clause and held invalid a Georgia law permitting only Georgia residents to obtain abortions within that State.4 It is true that Austin v. New Hampshire, 420 U.S. 656, 95 S.Ct. 1191, 43 L.Ed.2d 530 (1975), cited Corfield for the proposition that discriminatory taxation of the nonresident was one of the evils the Clause was designed to protect against; but "an exemption from higher taxes" was the one privileges and immunities right that Mr. Justice Washington framed in terms of discriminatory treatment. As in Toomer, Mullaney, and Bolton, the Court's principal concern in Austin was the classification itself—the fact that the discrimination hinged on the status of nonresidency.
68
I think the time has come to confirm explicitly that which has been implicit in our modern privileges and immunities decisions, namely that an inquiry into whether a given right is "fundamental" has no place in our analysis of whether a State's discrimination against nonresidents—who "are not represented in the [discriminating] State's legislative halls," Austin v. New Hampshire, supra, at 662, 95 S.Ct., at 1195—violates the Clause. Rather, our primary concern is the State's justification for its discrimination. Drawing from the principles announced in Toomer and Mullaney, a State's discrimination against nonresidents is permissible where (1) the presence or activity of nonresidents is the source or cause of the problem or effect with which the State seeks to deal, and (2) the discrimination practiced against nonresidents bears a substantial relation to the problem they present. Although a State has no burden to prove that its laws are not violative of the Privileges and Immunities Clause, its mere assertion that the discrimination practiced against nonresidents is justified by the peculiar problem nonresidents present will not prevail in the face of a prima facie showing that the discrimination is not supportab e on the asserted grounds. This requirement that a State's unequal treatment of nonresidents be reasoned and suitably tailored furthers the federal interest in ensuring that "a norm of comity," Austin v. New Hampshire, supra, 420 U.S., at 660, 95 S.Ct., at 1194, prevails throughout the Nation while simultaneously guaranteeing to the States the needed leeway to draw viable distinctions between their citizens and those of other States.
II
69
It is clear that under a proper privileges and immunities analysis Montana's discriminatory treatment of nonresident big-game hunters in this case must fall. Putting aside the validity of the requirement that nonresident hunters desiring to hunt elk must purchase a combination license that resident elk hunters need not buy, there are three possible justifications for charging nonresident elk hunters an amount at least 7.5 times the fee imposed on resident big-game hunters.5 The first is conservation. The State did not attempt to assert this as a justification for its discriminatory licensing scheme in the District Court, and apparently does not do so here. Indeed, it is difficult to see how it could consistently with the first prong of a modern privileges and immunities analysis. First, there is nothing in the record to indicate that the influx of nonresident hunters created a special danger to Montana's elk or to any of its other wildlife species. In the most recent year for which statistics are available, 1974-1975, there were 198,411 resident hunters in Montana and only 31,406 nonresident hunters. Nonresidents thus constituted only 13% of all hunters pursuing their sport in the State.6 Moreover, as the Court recognizes, ante, at 375 n. 10, the number of nonresident big-game hunters has never approached the 17,000 limit set by statute, presumably as a precautionary conservation measure.7 Second, if Montana's discriminatorily high big-game license fee is an outgrowth of general conservation policy to discourage elk hunting, this too fails as a basis for the licensing scheme. Montana makes no effort similarly to inhibit its own residents. As we said in Douglas v. Seacoast Products, Inc., 431 U.S. 265, 285 n. 21, 97 S.Ct. 1740, 1752, 52 L.Ed.2d 304 (1977), "[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."
70
The second possible justification for the fee differential Montana imposes on nonresident elk hunters—the one presented in the District Court and principally relied upon here—is a cost justification. Appellants have never contended that the Privileges and Immunities Clause requires that identical fees be assessed residents and nonresidents. They recognize that Toomer and Mullaney allow additional charges to be made on nonresidents based on both the added enforcement costs the presence of nonresident hunters imposes on Montana and the State's conservation expenditures supported by resident-borne taxes. Their position throughout this litigation has been that the higher fee extracted from nonresident elk hunters is not a valid effort y Montana to recoup state expenditures on their behalf, but a price gouged from those who can satisfactorily pursue their avocation in no other State in the Union. The licensing scheme, appellants contend, is simply an attempt by Montana to shift the costs of its conservation efforts, however commendable they may be, onto the shoulders of nonresidents who are powerless to help themselves at the ballot box. The District Court agreed, finding that "[o]n a consideration of [the] evidence . . . and with due regard to the presumption of constitutionality . . . the ratio of 7.5 to 1 cannot be justified on any basis of cost allocation." Montana Outfitters Action Group v. Fish & Game Comm'n, 417 F.Supp. 1005, 1008 (Mont.1976). This finding is not clearly erroneous, United States v. United States Gypsum Co., 333 U.S. 364, 394-395, 68 S.Ct. 525, 541, 92 L.Ed. 746 (1948), and the Court does not intimate otherwise. Montana's attempt to cost-justify its discriminatory licensing practices thus fails under the second prong of a correct privileges and immunities analysis—that which requires the discrimination a State visits upon nonresidents to bear a substantial relation to the problem or burden they pose.
71
The third possible justification for Montana's licensing scheme, the doctrine of McCready v. Virginia, 94 U.S. 391, 24 L.Ed. 248 (1877), is actually no justification at all, but simply an assertion that a State "owns" the wildlife within its borders in trust for its citizens and may therefore do with it what it pleases. See Geer v. Connecticut, 161 U.S. 519, 16 S.Ct. 600, 40 L.Ed. 793 (1896). The lingering death of the McCready doctrine as applied to a State's wildlife, begun with the thrust of Mr. Justice Holmes' blade in Missouri v. Holland, 252 U.S. 416, 434, 40 S.Ct. 382, 384, 64 L.Ed. 641 (1920) ("[t]o put the claim of the State upon title is to lean upon a slender reed") and aided by increasingly deep twists of the knife in Foster Fountain Packing Co. v. Haydel, 278 U.S. 1, 11-14, 49 S.Ct. 1, 4-5, 73 L.Ed. 147 (1928); Toomer v. Witsell, 334 U.S., at 402, 68 S.Ct., at 1165; Takahashi v. Fish & Game Comm'n, 334 U.S. 410, 421, 68 S.Ct. 1138, 1143, 92 L.Ed. 1478 (1948); and Kleppe v. New Mexico, 426 U.S. 529, 545-546, 96 S.Ct. 2285, 2294, 2295, 49 L.Ed.2d 34 (1976), finally became a reality in Douglas v. Seacoast Products, Inc., supra, 431 U.S., at 284, 97 S.Ct., at 1751, where Mr. Justice Marshall, speaking for the Court, observed:
72
"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. . . . 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 . . . . Under modern analysis, the question is simply whether the State has exercised its police power in conformity with the federal laws and Constitution." In unjustifiably discriminating against nonresident elk hunters, Montana has not "exercised its police power in conformity with the . . . Constitution." The State's police power interest in its wildlife cannot override the appellants' constitutionally protected privileges and immunities right. I respectfully dissent and would reverse.8
1
Montana statutorily defines one's place of residence. Mont.Rev.Codes Ann. § 83-303 (1966 and Supp.1977). It imposes a durational requirement of six months for eligibility to receive a resident's hunting or fishing license. § 26-202.3(2) (Supp.1975). Appellants, other than Baldwin, make no claim to Montana residence and do not challenge §§ 83-303 and 26-202.3(2) in any way. Tr. of Oral Arg. 39-40.
2
We note, in passing, that most States charge nonresidents more than residents for hunting licenses. E. g., Alaska Stat.Ann. § 16.05.340 (1977); Colo.Rev.Stat. § 33-4-102 (Supp.1976); Me.Rev.Stat.Ann., Tit. 12, § 2401 (Supp.1977); Wis.Stat. §§ 29.10, 29.105, 29.109, 29.12 (Supp.1977); Wyo.Stat. § 23.1-33 (Supp.1977). Others are listed in the Appendix to the Brief for Appellees.
3
1973 Mont.Laws, ch. 408, § 1, and 1969 Mont.Laws, ch. 172, § 2.
4
Mont.Rev.Codes Ann. §§ 26-202.1(4) and (12), and 26-230 (Supp.1977). A nonresident, however, could obtain a license restricted to deer for $51. §§ 26-202.1(9) and 26-230.
5
We were advised at oral argument that Montana's method of use of a combination license is unique among the States. Tr. of Oral Arg. 8. See Reply Brief for Appellants 29.
6
Mont.Rev.Codes Ann. §§ 26-202.1(1), (2), and (4) and 26-230 (Supp.1977).
7
There are similar disparities between Montana resident and nonresident hunting licenses for all other game, except wild turkey and as to bow-hunting. The present litigation, however, focuses only on licenses to hunt elk.
Disparity in rates has not been without criticism. U. S. Public Land Law Review Comm'n, One Third of the Nation's Land 174 (1970); Norman, Are Nonresident Hunters Getting a Fair Deal?, Outdoor Life, Sept. 1949, p. 21; Yeager, The Federal Take-Over, Montana Outdoors, Jan./Feb. 1975, p. 43; Editorial, Field & Stream, June 1974, p. 4.
8
App. 56. Its estimated population in 1976 has been said to be 753,000. The World Almanac 695 (1978). Of the 50 States, Montana consistently has ranked 42d or lower in population since statehood. App. 56.
9
It has been said that Montana is the State most frequently visited by nonresident hunters. All Outdoors, Michigan Natural Resources 27-28 (Sept.-Oct. 1975).
For the license year 1974-1975, Montana licensed hunters from each of the other 49 States, the District of Columbia, Puerto Rico, and 11 foreign countries. Defendants' Exhibit A, p. 8 (part of deposition of Don L. Brown). Approximately 43,500 nonresident hunting licenses for deer and elk were issued during that year. Id., at 7. The District Court found that elk hunting is recreational in nature and, "except for a few residents who live in exactly the right place," expensive. 417 F.Supp. at 1009. There was testimony that for a typical seven-day elk hunt a nonresident spends approximately $1,250 exclusive of outfitter's fee and the hunting license. Tr. 283-284. Thus, while the nonresident combination license fee is not insubstantial, it appears to be a lesser part of the overall expense of the elk hunt.
10
The number of nonresident big-game combination licenses is now restricted to 17,000 in any one license year. Mont.Rev.Codes Ann. § 26-202.1(16)(f) (Supp.1977). This limitation was imposed by 1975 Mont.Laws, ch. 546, § 1, effective May 1, 1976.
The number of nonresident hunters has not yet reached the 17,000 limit. There are no similar numerical limitations on resident elk or deer licenses.
11
The District Court concluded: "The elk is not and never will be hunted commercially." 417 F.Supp., at 1007. Appellants do not deny that the activity which they wish to pursue is pure sport. The hunter is entitled to take only one elk per year, Montana Department of Fish and Game, Deer, Elk, Bear, and Mountain Lion Regulations, Feb. 27, 1977, and statutory restrictions are placed on the buying and selling of game animals, or parts thereof, taken in Montana. Mont.Rev.Codes Ann. § 26-806 (1967).
The Supreme Court of Montana has said: "In Montana, big game hunting is a sport." State ex rel. Visser v. Fish & Game Comm'n, 150 Mont. 525, 531, 437 P.2d 373, 376 (1968).
12
"[A] property owner in this state must recognize the fact that there may be some injury to property or inconvenience from wild game for which there is no recourse." State v. Rathbone, 110 Mont. 225, 242, 100 P.2d 86, 93 (1940).
13
The concession was repeated orally in this Court. Tr. of Oral Arg. 6.
14
The District Court made no specific findings or conclusions about the standing of each of the five appellants. It ruled, however, that two of the nonresident plaintiff-appellants, Lee and Moris, had sufficient standing to maintain the suit. 417 F.Supp., at 1008. We agree, and find it unnecessary to make any further inquiry on standing. See Doe v. Bolton, 410 U.S. 179, 189, 93 S.Ct. 739, 746, 35 L.Ed.2d 201 (1973).
15
The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States."
16
"All persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws."
17
"The better to secure and perpetuate mutual friendship and intercourse among the people of the different States in this Union, the free inhabitants of each of these States, paupers, vagabonds and fugitives from justice excepted, shall be entitled to all privileges and immunities of free citizens in the several States; and the people of each State shall have free ingress and regress to and from any other State and shall enjoy therein all the privileges of trade and commerce, subject to the same duties, impositions and restrictions as the inhabitants thereof respectively . . . ."
18
For a description of four theories proffered as to the purpose of the Clause, see S.Doc. No. 92-82, pp. 831-832 (1973).
19
The opinion goes on to read:
"Indeed, without some provision of the kind removing from the citizens of each State the disabilities of alienage in the other States, and giving them equality of privilege with citizens of those States, the Republic would have constituted little more than a league of States; it would not have constituted the Union which now exists.
"But the privileges and immunities secured to citizens of each State in the several States, by the provision in question, are those privileges and immunities which are common to the citizens in the latter States under their constitution and laws by virtue of their being citizens. Special privileges enjoyed by citizens in their own States are not secured in other States by this provision. It was not intended by the provision to give to the laws of one State any operation in other States. They can have no such operation, except by the permission, express or implied, of those States. The special privileges which they confer must, therefore, be enjoyed at home, unless the assent of other States to their enjoyment therein be given." 8 Wall., at 180-181, 19 L.Ed. 357.
20
It is possible that this is the language that Mr. Justice Roberts in the quotation, supra, at 381, from Hague v. CIO, 307 U.S., at 511, 59 S.Ct., at 962, rather critically regarded as relating to "natural rights." We suspect, however, that he was referring to the more general preceding sentences in Mr. Justice Washington's opinion:
"The inquiry is, what are the privileges and immunities of citizens in the several states? We feel no hesitation in confining these expressions to those privileges and immunities which are, in their nature, fundamental; which belong, of right, to the citizens of all free governments; and which have, at all times, been enjoyed by the citizens of the several states which compose this Union, from the time of their becoming free, independent, and sovereign. What these fundamental principles are, it would perhaps be more tedious than difficult to enumerate. They may, however, be all comprehended under the following general heads: Protection by the government; the enjoyment of life and liberty, with the right to acquire and possess property of every kind, and to pursue and obtain happiness and safety; subject nevertheless to such restraints as the government may justly prescribe for the general good of the whole." 6 F.Cas., at 551-552.
21
The rationale of these cases seems not to have been affected by the adoption of the Fourteenth Amendment and the inclusion therein of a new protection for "the privileges or immunities of citizens of the United States." Appellants do not argue that the State of Montana has deprived them of anything to which they are entitled under this provision, so we need not consider here the relationship between the Fourteenth Amendment and the Privileges and Immunities Clause of Art. IV. See Hague v. CIO, 307 U.S., at 511, 59 S.Ct., at 962 (opinion of Roberts, J.); Slaughter-House Cases, 16 Wall. 36, 21 L.Ed. 394 (1873); R. Howell, The Privileges and Immunities of State Citizenship (1918).
22
It is, of course, possible for residents, with single-animal licenses, hunting in groups to engage in license swapping.
23
The appellants point to the facts that federal land in Montana provides a significant contribution to the elk habitat, and that substantial apportionments to the State flow from the Federal Aid in Wild Life Restoration Act, 50 Stat. 917, as amended, 16 U.S.C. §§ 669-669i (1976 ed.). We fail to see how these federal aspects transform a recreational pursuit into a fundamental right protected by the Privileges and Immunities Clause, or how they impose a barrier to resident-nonresident differentials. Congress knows how to impose such a condition on its largess when it wishes to do so. See 16 U.S.C. § 669 (1976 ed.). See also Pub.L. 94-422, 90 Stat. 1314, adding § 6(f)(8) to the Land and Water Conservation Fund Act of 1965, 16 U.S.C. § 460l -8(f)(8) (1976 ed.).
24
The dissenting opinion in the District Court ascribes to the majority there a holding that "an otherwise invidious discrimination against nonresidents is justified because the state may rationally consider the discrimination necessary to induce residents to support the state program required to conserve the herd." 417 F.Supp., at 1011. We agree with that dissent that the State's need or desire to engender political support for its conservation programs cannot by itself justify an otherwise invidious classification. Memorial Hospital v. Maricopa County, 415 U.S. 250, 266, 94 S.Ct. 1076, 1086, 39 L.Ed.2d 306 (1974). But, in our view, the record, that is, the case as proved, discloses that the classification utilized in Montana's licensing scheme is not "otherwise invidious discrimination."
1
See, e. g., Canadian Northern R. Co. v. Eggen, 252 U.S. 553, 560, 40 S.Ct. 402, 403, 64 L.Ed. 713 (1920); Chambers v. Baltimore & Ohio R. Co., 207 U.S. 142, 155, 28 S.Ct. 34, 38, 52 L.Ed. 143 (1907); Blake v. McClung, 172 U.S. 239, 248-249, 19 S.Ct. 165, 169, 43 L.Ed. 432 (1898).
2
For the purpose of analysis of most cases under the Privileges and Immunities Clause of Art. IV, the terms "citizen" and "resident" are "essentially interchangeable." Austin v. New Hampshire, 420 U.S. 656, 662 n. 8, 95 S.Ct. 1191, 1195 n. 8, 43 L.Ed.2d 530 (1975); Toomer v. Witsell, 334 U.S. 385, 397, 68 S.Ct. 1156, 1162, 92 L.Ed. 1490 (1948).
3
The reason given was: "If the statute does not run as between nonresident creditors and their debtors, it might often happen that a right of action would be extinguished, perhaps for years, in the State where the parties reside; and yet, if the defendant should be found in Wisconsin,—it may be only in a railroad train,—a suit could be sprung upon him after the claim had been forgotten. The laws of Wisconsin would thus be used as a trap to catch the unwary defendant, after the laws which had always governed the case had barred any recovery. This would be inequitable and unjust." 93 U.S., at 77.
4
Although it is true that a woman's right to choose to have an abortion is "fundamental" for purposes of equal protection analysis, Roe v. Wade, 410 U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d 147 (1973), the Court did not rely on this fact and deemed all "medical services" within the protection of the Clause. Again no mention was made of Corfield.
5
This is the cost ratio of the 1976 nonresident combination license fee ($225) to the 1976 resident combination license fee ($30). Since a Montana resident wishing to hunt only elk could purchase an elk-hunting license for only $9, a nonresident who wanted to hunt only elk had to pay a fee 25 times as great as that charged a similarly situated resident of Montana.
6
These are the figures for all hunters in Montana, not only for those hunting elk. The Court's notation of the fact that the number of nonresident hunters in Montana has increased more dramatically than the number of resident hunters during the past decade, ante, at 374-375, thus somewhat overstates the putative conservation threat nonresident hunters pose for Montana's wildlife.
7
This restriction on the number of big-game hunters allowed into Montana is thus not at issue.
8
Because I find Montana's elk-hunting licensing scheme unconstitutional under the Privileges and Immunities Clause of Art. IV, § 2, I find it unnecessary to determine whether the scheme would pass equal protection scrutiny. In any event, where a State discriminates solely on the basis f noncitizenship or nonresidency in the State, see n. 1, supra, it is my view that the Equal Protection Clause affords a discriminatee no greater protection than the Privileges and Immunities Clause.
| 12
|
436 U.S. 307
98 S.Ct. 1816
56 L.Ed.2d 305
Ray MARSHALL, Secretary of Labor, et al., Appellants,v.BARLOW'S, INC.
No. 76-1143.
Argued Jan. 9, 1978.
Decided May 23, 1978.
Syllabus
Appellee brought this action to obtain injunctive relief against a warrantless inspection of its business premises pursuant to § 8(a) of the Occupational Safety and Health Act of 1970 (OSHA), which empowers agents of the Secretary of Labor to search the work area of any employment facility within OSHA's jurisdiction for safety hazards and violations of OSHA regulations. A three-judge District Court ruled in appellee's favor, concluding, in reliance on Camara v. Municipal Court, 387 U.S. 523, 528-529, 87 S.Ct.1727, 1730, 1731, 18 L.Ed.2d 930, and See v. City of Seattle, 387 U.S. 541, 543, 87 S.Ct. 1737, 1739, 18 L.Ed.2d 943, that the Fourth Amendment required a warrant for the type of search involved and that the statutory authorization for warrantless inspections was unconstitutional. Held : The inspection without a warrant or its equivalent pursuant to § 8(a) of OSHA violated the Fourth Amendment. Pp. 311-325.
(a) The rule that warrantless searches are generally unreasonable applies to commercial premises as well as homes. Camara v. Municipal Court, supra, and See v. City of Seattle, supra. Pp. 311-313.
(b) Though an exception to the search warrant requirement has been recognized for "closely regulated" industries "long subject to close supervision and inspection," Colonnade Catering Corp. v. United States, 397 U.S. 72, 74, 77, 90 S.Ct. 774, 775, 777, 25 L.Ed.2d 60, that exception does not apply simply because the business is in interstate commerce. Pp. 313-314.
(c) Nor does the fact that an employer by the necessary utilization of employees in his operation mean that he has opened areas where the employees alone are permitted to the warrantless scrutiny of Government agents. Pp. 314-315.
(d) Insofar as experience to date indicates, requiring warrants to make OSHA inspections will impose no serious burdens on the inspections system or the courts. The advantages of surprise through the opportunity of inspecting without prior notice will not be lost if, after entry to an inspector is refused, an ex parte warrant can be obtained, facilitating an inspector's reappearance at the premises without further notice; and appellant Secretary's entitlement to a warrant will not depend on his demonstrating probable cause to believe that conditions on the premisesviolate OSHA but merely that reasonable legislative or administrative standards for conducting an inspection are satisfied with respect to a particular establishment. Pp. 315-321.
(e) Requiring a warrant for OSHA inspections does not mean that, as a practical matter, warrantless-search provisions in other regulatory statutes are unconstitutional, as the reasonableness of those provisions depends upon the specific enforcement needs and privacy guarantees of each statute. Pp. 321-322.
424 F.Supp. 437, affirmed.
Solicitor General Wade H. McCree, Jr., Washington, D. C., for appellants.
John L. Runft, Boise, Idaho, for appellee.
Mr. Justice WHITE delivered the opinion of the Court.
1
Section 8(a) of the Occupational Safety and Health Act of 1970 (OSHA or Act)1 empowers agents of the Secretary of Labor (Secretary) to search the work area of any employment facility within the Act's jurisdiction. The purpose of the search is to inspect for safety hazards and violations of OSHA regulations. No search warrant or other process is expressly required under the Act.
2
On the morning of September 11, 1975, an OSHA inspector entered the customer service area of Barlow's, Inc., an electrical and plumbing installation business located in Pocatello, Idaho. The president and general manager, Ferrol G. "Bill" Barlow, was on hand; and the OSHA inspector, after showing his credentials,2 informed Mr. Barlow that he wished to conduct a search of the working areas of the business. Mr. Barlow inquired whether any complaint had been received about his company. The inspector answered no, but that Barlow's Inc., had simply turned up in the agency's selection process. The inspector again asked to enter the nonpublic area of the business; Mr. Barlow's response was to inquire whether the inspector had a search warrant. The inspector had none. Thereupon, Mr. Barlow refused the inspector admission to the employee area of his business. He said he was relying on his rights as guaranteed by the Fourth Amendment of the United States Constitution.
3
Three months later, the Secretary petitioned the United States District Court for the District of Idaho to issue an order compelling Mr. Barlow to admit the inspector.3 The requested order was issued on December 30, 1975, and was presented to Mr. Barlow on January 5, 1976. Mr. Barlow again refused admission, and he sought his own injunctive relief against the warrantless searches assertedly permitted by OSHA. A three-judge court was convened. On December 30, 1976, it ruled in Mr. Barlow's favor. 424 F.Supp. 437. Concluding that Camara v. Municipal Court, 387 U.S. 523, 528-529, 87 S.Ct. 1727, 1730, 1731, 18 L.Ed.2d 930 (1967), and See v. City of Seattle, 387 U.S. 541, 543, 87 S.Ct. 1737, 1739, 18 L.Ed.2d 943 (1967), controlled this case, the court held that the Fourth Amendment required a warrant for the type of search invo ved here4 and that the statutory authorization for warrantless inspections was unconstitutional. An injunction against searches or inspections pursuant to § 8(a) was entered. The Secretary appealed, challenging the judgment, and we noted probable jurisdiction. 430 U.S. 964, 98 S.Ct. 474, 54 L.Ed.2d 309.
4
* The Secretary urges that warrantless inspections to enforce OSHA are reasonable within the meaning of the Fourth Amendment. Among other things, he relies on § 8(a) of the Act, 29 U.S.C. § 657(a), which authorizes inspection of business premises without a warrant and which the Secretary urges represents a congressional construction of the Fourth Amendment that the courts should not reject. Regretably, we are unable to agree.
5
The Warrant Clause of the Fourth Amendment protects commercial buildings as well as private homes. To hold otherwise would belie the origin of that Amendment, and the American colonial experience. An important forerunner of the first 10 Amendments to the United States Constitution, the Virginia Bill of Rights, specifically opposed "general warrants, whereby an officer or messenger may be commanded to search suspected places without evidence of a fact committed."5 The general warrant was a recurring point of contention in the Colonies immediately preceding the Revolution.6 The particular offensiveness it engendered was acutely felt by the merchants and businessmen whose premises and products were inspected for compliance with the several parliamentary revenue measures that most irritated the colonists.7 "[T]he Fourth Amendment's commands grew in large measure out of the colonists' experience with the writs of assistance . . . [that] granted sweeping power to customs officials and other agents of the King to search at large for smuggled goods." United States v. Chadwick, 433 U.S. 1, 7-8, 97 S.Ct. 2476, 2481, 53 L.Ed.2d 538 (1977). See also G. M. Leasing Corp. v. United States, 429 U.S. 338, 355, 97 S.Ct. 619, 630, 50 L.Ed.2d 530 (1977). Against this background, it is untenable that the ban on warrantless searches was not intended to shield places of business as well as of residence.
6
This Court has already held that warrantless searches are generally unreasonable, and that this rule applies to commercial premises as well as homes. In Camara v. Municipal Court, supra, 387 U.S., at 528-529, 87 S.Ct., at 1731, we held:
7
"[E]xcept in certain carefully defined classes of cases, a search of private property without proper consent is 'unreasonable' unless it has been authorized by a valid search warrant."
On the same day, we also ruled:
8
"As we explained in Camara, a search of private houses is presumptively unreasonable if conducted without a warrant. The businessman, like the occupant of a residence, has a constitutional right to go about his business free from unreasonable official entries upon his private commercial property. The businessman, too, has that right placed in jeopardy if the decision to enter and inspect for violation of regulatory laws can be made and enforced by the inspector in he field without official authority evidenced by a warrant." See v. City of Seattle, supra, 387 U.S., at 543, 87 S.Ct., at 1739.
9
These same cases also held that the Fourth Amendment prohibition against unreasonable searches protects against warrantless intrusions during civil as well as criminal investigations. Ibid. The reason is found in the "basic purpose of this Amendment . . . [which] is to safeguard the privacy and security of individuals against arbitrary invasions by governmental officials." Camara, supra, 387 U.S., at 528, 87 S.Ct. at 1730. If the government intrudes on a person's property, the privacy interest suffers whether the government's motivation is to investigate violations of criminal laws or breaches of other statutory or regulatory standards. It therefore appears that unless some recognized exception to the warrant requirement applies, See v. City of Seattle, would require a warrant to conduct the inspection sought in this case.
10
The Secretary urges that an exception from the search warrant requirement has been recognized for "pervasively regulated business[es]," United States v. Biswell, 406 U.S. 311, 316, 92 S.Ct. 1593, 1596, 32 L.Ed.2d 87 (1972), and for "closely regulated" industries "long subject to close supervision and inspection." Colonnade Catering Corp. v. United States, 397 U.S. 72, 74, 77, 90 S.Ct. 774, 777, 25 L.Ed.2d 60 (1970). These cases are indeed exceptions, but they represent responses to relatively unique circumstances. Certain industries have such a history of government oversight that no reasonable expectation of privacy, see Katz v. United States, 389 U.S. 347, 351-352, 88 S.Ct. 507, 511, 19 L.Ed.2d 576 (1967), could exist for a proprietor over the stock of such an enterprise. Liquor (Colonnade ) and firearms (Biswell ) are industries of this type; when an entrepreneur embarks upon such a business, he has voluntarily chosen to subject himself to a full arsenal of governmental regulation.
11
Industries such as these fall within the "certain carefully defined classes of cases," referenced in Camara, 387 U.S., at 528, 87 S.Ct., at 1731. The element that distinguishes these enterprises from ordinary businesses is a long tradition of close government supervision, of which any person who chooses to enter such a business must already be aware. "A central difference between those cases [Colonnade and Biswell ] and this one is that businessmen engaged in such federally licensed and regulated enterprises accept the burdens as well as the benefits of their trade, whereas the petitioner here was not engaged in any regulated or licensed business. The businessman in a regulated industry in effect consents to the restrictions placed upon him." Almeida-Sanchez v. United States, 413 U.S. 266, 271, 93 S.Ct. 2535, 2538, 37 L.Ed.2d 596 (1973).
12
The clear import of our cases is that the closely regulated industry of the type involved in Colonnade and Biswell is the exception. The Secretary would make it the rule. Invoking the Walsh-Healey Act of 1936, 41 U.S.C. § 35 et seq., the Secretary attempts to support a conclusion that all businesses involved in interstate commerce have long been subjected to close supervision of employee safety and health conditions. But the degree of federal involvement in employee working circumstances has never been of the order of specificity and pervasiveness that OSHA mandates. It is quite unconvincing to argue that the imposition of minimum wages and maximum hours on employers who contracted with the Government under the Walsh-Healey Act prepared the entirety of American interstate commerce for regulation of working conditions to the minutest detail. Nor can any but the most fictional sense of voluntary consent to later searches be found in the single fact that one conducts a business affecting interstate commerce; under current practice and law, few businesses can be conducted without having some effect on interstate commerce.
13
The Secretary also attempts to derive support for a Colonnade-Biswell -type exception by drawing analogies from the field of labor law. In Republic Aviation Corp. v. NLRB, 324 U.S. 793, 65 S.Ct. 982, 89 L.Ed. 1372 (1945), this Court upheld the rights of employees to solicit for a union during nonworking time where efficiency was not compromised. By opening up his property to employees, the employer had yielded so much of his private property rights as to allow those employees to exercise § 7 rights under the National Labor Relations Act. But this Court also held that the private property rights of an owner prevailed over the intrusion of nonemployee organizers, even in nonworking areas of the plant and during nonworking hours. NLRB v. Babcock & Wilcox Co., 351 U.S. 105, 76 S.Ct. 679, 100 L.Ed. 975 (1956).
14
The critical fact in this case is that entry over Mr. Barlow's objection is being sought by a Government agent.8 Employees are not being prohibited from reporting OSHA violations. What they observe in their daily functions is undoubtedly beyond the employer's reasonable expectation of privacy. The Government inspector, however, is not an employee. Without a warrant he stands in no better position than a member of the public. What is observable by the public is observable, without a warrant, by the Government inspector as well.9 The owner of a business has not, by the necessary utilization of employees in his operation, thrown open the areas where employees alone are permitted to the warrantless scrutiny of Government agents. That an employee is free to report, and the Government is free to use, any evidence of noncompliance with OSHA that the employee observes furnishes no justification for federal agents to enter a place of business from which the public is restricted and to conduct their own warrantless search.10
II
15
The Secretary nevertheless stoutly argues that the enforcement scheme of the Act requires warrantless searches, and that the restrictions on search discretion contained in the Act and its regulations already protect as much privacy as a warrant would. The Secretary thereby asserts the actual reasonableness of OSHA searches, whatever the general rule against warrantless searches might be. Because "reasonableness is still the ultimate standard," Camara v. Municipal Court, 387 U.S., at 539, 87 S.Ct., at 1736, the Secretary suggests that the Court decide whether a warrant is needed by arriving at a sensible balance between the administrative necessities of OSHA inspections and the incremental protection of privacy of business owners a warrant would afford. He suggests that only a decision exempting OSHA inspections from the Warrant Clause would give "full recognition to the competing public and private interests here at stake." Ibid.
16
The Secretary submits that warrantless ins ections are essential to the proper enforcement of OSHA because they afford the opportunity to inspect without prior notice and hence to preserve the advantages of surprise. While the dangerous conditions outlawed by the Act include structural defects that cannot be quickly hidden or remedied, the Act also regulates a myriad of safety details that may be amenable to speedy alteration or disguise. The risk is that during the interval between an inspector's initial request to search a plant and his procuring a warrant following the owner's refusal of permission, violations of this latter type could be corrected and thus escape the inspector's notice. To the suggestion that warrants may be issued ex parte and executed without delay and without prior notice, thereby preserving the element of surprise, the Secretary expresses concern for the administrative strain that would be experienced by the inspection system, and by the courts, should ex parte warrants issued in advance become standard practice.
17
We are unconvinced, however, that requiring warrants to inspect will impose serious burdens on the inspection system or the courts, will prevent inspections necessary to enforce the statute, or will make them less effective. In the first place, the great majority of businessmen can be expected in normal course to consent to inspection without warrant; the Secretary has not brought to this Court's attention any widespread pattern of refusal.11 In those cases where an owner does insist on a warrant, the Secretary argues that inspection efficiency will be impeded by the advance notice and delay. The Act's penalty provisions for giving advance notice of a search, 29 U.S.C. § 666(f), and the Secretary's own regulations, 29 CFR § 1903.6 (1977), indicate that surprise searches are indeed contemplated. However, the Secretary has also promulgated a regulation providing that upon refusal to permit an inspector to enter the property or to complete his inspection, the inspector shall attempt to ascertain the reasons for the refusal and report to his superior, who shall "promptly take appropriate action, including compulsory process, if necessary." 29 CFR § 1903.4 (1977).12 The regulation represents a choice to proceed by process where entry is refused; and on the basis of evidence available from present practice, the Act's effectiveness has not been crippled by providing those owners who wish to refuse an initial requested entry with a time lapse while the inspector obtains the necessary process.13 Indeed, the kind of process sought in this case and apparently anticipated by the regulation provides notice to the business operator.14 If this safeguard endangers the efficient administration of OSHA, the Secretary should never have adopted it, particularly when the Act does not require it. Nor is it immediately apparent why the advantages of surprise would be lost if, after being refused entry, procedures were available for the Secretary to seek an ex parte warrant and to reappear at the premises without further notice to the establishment being inspected.15
18
Whether the Secretary proceeds to secure a warrant or other process, with or without prior notice, his entitlement to inspect will not depend on his demonstrating probable cause to believe that conditions in violation of OSHA exist on the premises. Probable cause in the criminal law sense is not required. For purposes of an administrative search such as this, probable cause justifying the issuance of a warrant may be based not only on specific evidence of an existing violation16 but also on a showing that "reasonable legislative or administrative standards for conducting an . . . inspection are satisfied with respect to a particular [establishment]." Camara v. Municipal Court, 387 U.S., at 538, 87 S.Ct., at 1736. A warrant showing that a specific business has been chosen for an OSHA search on the basis of a general administrative plan for the enforcement of the Act derived from neutral sources such as, for example, dispersion of employees in various types of industries across a given area, and the desired frequency of searches in any of the lesser divisions of the area, would protect an employer's Fourth Amendment rights.17 We doubt that the consumption of enforcement energies in the obtaining of such warrants will exceed manageable proportions.
19
Finally, the Secretary urges that requiring a warrant for OSHA inspectors will mean that, as a practical matter, warrantless-search provisions in other regulatory statutes are also constitutionally infirm. The reasonableness of a warrantless search, however, will depend upon the specific enforcement needs and privacy guarantees of each statute. Some of the statutes cited apply only to a single industry, where regulations might already be so pervasive that a Colonnade-Biswell exception to the warrant requirement could apply. Some statutes already envision resort to federal-court enforcement when entry is refused, employing specific language in some cases18 and general language in others.19 In short, we base today's opinion on the facts and law concerned with OSHA and do not retreat from a holding appropriate to that statute because of its real or imagined effect on other, different administrative schemes.
20
Nor do we agree that the incremental protections afforded the employer's privacy by a warrant are so marginal that they fail to justify the administrative burdens that may be entailed. The authority to make warrantless searches devolves almost unbridled discretion upon executive and administrative officers, particularly those in the field, as to when to search and whom to search. A warrant, by contrast, would provide assurances from a neutral officer that the inspection is reasonable under the Constitution, is authorized by statute, and is pursuant to an administrative plan containing specific neutral criteria.20 Also, a warrant would then and there advise the owner of the scope and objects of the search, beyond which limits the inspector is not expected to proceed.21 These are important functions for a warrant to perform, functions which underlie the Court's prior decisions that the Warrant Clause applies to inspections for compliance with regulatory statutes.22 Camara v. Municipal Court, 387 U.S. 523, 87 S.Ct. 1727, 18 L.Ed.2d 930 (1967); See v. City of Seattle, 387 U.S. 541, 87 S.Ct. 1737, 18 L.Ed.2d 943 (1967). We conclude that the concerns expressed by the Secretary do not suffice to justify warrantless inspections under OSHA or vitiate the general constitutional requirement that for a search to be reasonable a warrant must be obtained.
III
21
We hold that Barlow's was entitled to a declaratory judgment that the Act is unconstitutional insofar as it purports to authorize inspections without warrant or its equivalent and to an injunction enjoining the Act's enforcement to that extent.23 The judgment of the District Court is therefore affirmed.
22
So ordered.
23
Mr. Justice BRENNAN took no part in the consideration or decision of this case.
24
Mr. Justice STEVENS, with whom Mr. Justice BLACKMUN and Mr. Justice REHNQUIST join, dissenting.
25
Congress enacted the Occupational Safety and Health Act to safeguard employees against hazards in the work areas of businesses subject to the Act. To ensure compliance, Congress authorized the Secretary of Labor to conduct routine, nonconsensual inspections. Today the Court holds that the Fourth Amendment prohibits such inspections without a warrant. The Court also holds that the constitutionally required warrant may be issued without any showing of probable cause. I disagree with both of these holdings.
26
The Fourth Amendment contains two separate Clauses, each flatly prohibiting a category of governmental conduct. The first Clause states that the right to be free from unreasonable searches "shall not be violated";1 the second unequivocally prohibits the issuance of warrants except "upon probable cause."2 In this case the ultimate question is whether the category of warrantless searches authorized by the statute is "unreasonable" within the meaning of the first Clause.
27
In cases involving the investigation of criminal activity, the Court has held that the reasonableness of a search generally depends upon whether it was conducted pursuant to a valid warrant. See, e. g., Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564. There is, however, also a category of searches which are reasonable within the meaning of the first Clause even though the probable-cause requirement of the Warrant Clause cannot be satisfied. See United States v. Martinez-Fuerte, 428 U.S. 543, 96 S.Ct. 3074, 49 L.Ed.2d 1116; Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889; South Dakota v. Opperman, 428 U.S. 364, 96 S.Ct. 3092, 49 L.Ed.2d 1000; United States v. Biswell, 406 U.S. 311, 92 S.Ct. 1593, 32 L.Ed.2d 87. The regulatory inspection program challenged in this case, in my judgment, falls within this category.
28
* The warrant requirement is linked "textually . . . to the probable-cause concept" in the Warrant Clause. South Dakota v. Opperman, supra, 428 U.S., at 370 n.5, 96 S.Ct. at 3097. The routine OSHA inspections are, by definition, not based on cause to believe there is a violation on the premises to be inspected. Hence, if the inspections were measured against the requirements of the Warrant Clause, they would be automatically and unequivocally unreasonable.
29
Because of the acknowledged importance and reasonableness of routine inspections in the enforcement of federal regulatory statutes such as OSHA, the Court recognizes that requiring full compliance with the Warrant Clause would invalidate all such inspection programs. Yet, rather than simply analyzing such programs under the "Reasonableness" Clause of the Fourth Amendment, the Court holds the OSHA program invalid under the Warrant Clause and then avoids a blanket prohibition on all routine, regulatory inspections by relying on the notion that the "probable cause" requirement in the Warrant Clause may be relaxed whenever the Court believes that the governmental need to conduct a category of "searches" outweighs the intrusion on interests protected by the Fourth Amendment.
30
The Court's approach disregards the plain language of the Warrant Clause and is unfaithful to the balance struck by the Framers of the Fourth Amendment—"the one procedural safeguard in the Constitution that grew directly out of the events which immediately preceded the revolutionary struggle with England."3 This preconstitutional history includes the controversy in England over the issuance of general warrants to aid enforcement of the seditious libel laws and the colonial experience with writs of assistance issued to facilitate collection of the various import duties imposed by Parliament. The Framers' familiarity wi h the abuses attending the issuance of such general warrants provided the principal stimulus for the restraints on arbitrary governmental intrusions embodied in the Fourth Amendment.
31
"[O]ur constitutional fathers were not concerned about warrantless searches, but about overreaching warrants. It is perhaps too much to say that they feared the warrant more than the search, but it is plain enough that the warrant was the prime object of their concern. Far from looking at the warrant as a protection against unreasonable searches, they saw it as an authority for unreasonable and oppressive searches . . . ."4
32
Since the general warrant, not the warrantless search, was the immediate evil at which the Fourth Amendment was directed, it is not surprising that the Framers placed precise limits on its issuance. The requirement that a warrant only issue on a showing of particularized probable cause was the means adopted to circumscribe the warrant power. While the subsequent course of Fourth Amendment jurisprudence in this Court emphasizes the dangers posed by warrantless searches conducted without probable cause, it is the general reasonableness standard in the first Clause, not the Warrant Clause, that the Framers adopted to limit this category of searches. It is, of course, true that the existence of a valid warrant normally satisfies the reasonableness requirement under the Fourth Amendment. But we should not dilute the requirements of the Warrant Clause in an effort to force every kind of governmental intrusion which satisfies the Fourth Amendment definition of a "search" into a judicially developed, warrant-preference scheme.
33
Fidelity to the original understanding of the Fourth Amendment, therefore, leads to the conclusion that the Warrant Clause has no application to routine, regulatory inspections of commercial premises. If such inspections are valid, it is because they comport with the ultimate reasonableness standard of the Fourth Amendment. If the Court were correct in its view that such inspections, if undertaken without a warrant, are unreasonable in the constitutional sense, the issuance of a "new-fangled warrant" to use Mr. Justice Clark's characteristically expressive term without any true showing of particularized probable cause would not be sufficient to validate them.5
II
34
Even if a warrant issued without probable cause were faithful to the Warrant Clause, I could not accept the Court's holding that the Government's inspection program is constitutionally unreasonable because it fails to require such a warrant procedure. In determining whether a warrant is a necessary safeguard in a given class of cases, "the Court has weighed the public interest against the Fourth Amendment interest of the individual . . . ." United States v. Martinez-Fuerte, 428 U.S., at 555, 96 S.Ct., at 3081. Several considerations persuade me that this balance should be struck in favor of the routine inspections authorized by Congress.
35
Congress has determined that regulation and supervision of safety in the workplace furthers an important public interest and that the power to conduct warrantless searches is necessary to accomplish the safety goals of the legislation. In assessing the public interest side of the Fourth Amendment balance, however, the Court today substitutes its judgment for that of Congress on the question of what inspection authority is needed to effectuate the purposes of the Act. The Court states that if surprise is truly an important ingredient of an effective, representative inspection program, it can be retained by obtaining ex parte warrants in advance. The Court assures the Secretary that this will not unduly burden enforcement resources b cause most employers will consent to inspection.
36
The Court's analysis does not persuade me that Congress' determination that the warrantless-inspection power as a necessary adjunct of the exercise of the regulatory power is unreasonable. It was surely not unreasonable to conclude that the rate at which employers deny entry to inspectors would increase if covered businesses, which may have safety violations on their premises, have a right to deny warrantless entry to a compliance inspector. The Court is correct that this problem could be avoided by requiring inspectors to obtain a warrant prior to every inspection visit. But the adoption of such a practice undercuts the Court's explanation of why a warrant requirement would not create undue enforcement problems. For, even if it were true that many employers would not exercise their right to demand a warrant, it would provide little solace to those charged with administration of OSHA; faced with an increase in the rate of refusals and the added costs generated by futile trips to inspection sites where entry is denied, officials may be compelled to adopt a general practice of obtaining warrants in advance. While the Court's prediction of the effect a warrant requirement would have on the behavior of covered employers may turn out to be accurate, its judgment is essentially empirical. On such an issue, I would defer to Congress' judgment regarding the importance of a warrantless-search power to the OSHA enforcement scheme.
37
The Court also appears uncomfortable with the notion of second-guessing Congress and the Secretary on the question of how the substantive goals of OSHA can best be achieved. Thus, the Court offers an alternative explanation for its refusal to accept the legislative judgment. We are told that, in any event, the Secretary, who is charged with enforcement of the Act, has indicated that inspections without delay are not essential to the enforcement scheme. The Court bases this conclusion on a regulation prescribing the administrative response when a compliance inspector is denied entry. It provides: "The Area Director shall immediately consult with the Assistant Regional Director and the Regional Solicitor, who shall promptly take appropriate action, including compulsory process, if necessary." 29 CFR § 1903.4 (1977). The Court views this regulation as an admission by the Secretary that no enforcement problem is generated by permitting employers to deny entry and delaying the inspection until a warrant has been obtained. I disagree. The regulation was promulgated against the background of a statutory right to immediate entry, of which covered employers are presumably aware and which Congress and the Secretary obviously thought would keep denials of entry to a minimum. In these circumstances, it was surely not unreasonable for the Secretary to adopt an orderly procedure for dealing with what he believed would be the occasional denial of entry. The regulation does not imply a judgment by the Secretary that delay caused by numerous denials of entry would be administratively acceptable.
38
Even if a warrant requirement does not "frustrate" the legislative purpose, the Court has no authority to impose an additional burden on the Secretary unless that burden is required to protect the employer's Fourth Amendment interests.6 The essential function of the traditional warrant requirement is the interposition of a neutral magistrate between the citizen and the presumably zealous law enforcement officer so that there might be an objective determination of probable cause. But this purpose is not served by the newfangled inspection warrant. As the Court acknowledges, the inspector's "entitlement to inspect will not depend on his demonstrating probable cause to believe that conditions in violation of OSHA exist on the premises. . . . For purposes of an administrative search such as this, probable cause justifying the issuance of a warrant may be based . . . on a showing th t 'reasonable legislative or administrative standards for conducting an . . . inspection are satisfied with respect to a particular [establishment].' " Ante, at 320. To obtain a warrant, the inspector need only show that "a specific business has been chosen for an OSHA search on the basis of a general administrative plan for the enforcement of the Act derived from neutral sources . . .." Ante, at 321. Thus, the only question for the magistrate's consideration is whether the contemplated inspection deviates from an inspection schedule drawn up by higher level agency officials.
39
Unlike the traditional warrant, the inspection warrant provides no protection against the search itself for employers who the Government has no reason to suspect are violating OSHA regulations. The Court plainly accepts the proposition that random health and safety inspections are reasonable. It does not question Congress' determination that the public interest in workplaces free from health and safety hazards outweighs the employer's desire to conduct his business only in the presence of permittees, except in those rare instances when the Government has probable cause to suspect that the premises harbor a violation of the law.
40
What purposes, then, are served by the administrative warrant procedure? The inspection warrant purports to serve three functions: to inform the employer that the inspection is authorized by the statute, to advise him of the lawful limits of the inspection, and to assure him that the person demanding entry is an authorized inspector. Camara v. Municipal Court, 387 U.S. 523, 532, 87 S.Ct. 1727, 1732, 18 L.Ed.2d 930. An examination of these functions in the OSHA context reveals that the inspection warrant adds little to the protections already afforded by the statute and pertinent regulations, and the slight additional benefit it might provide is insufficient to identify a constitutional violation or to justify overriding Congress' judgment that the power to conduct warrantless inspections is essential.
41
The inspection warrant is supposed to assure the employer that the inspection is in fact routine, and that the inspector has not improperly departed from the program of representative inspections established by responsible officials. But to the extent that harassment inspections would be reduced by the necessity of obtaining a warrant, the Secretary's present enforcement scheme would have precisely the same effect. The representative inspections are conducted " 'in accordance with criteria based upon accident experience and the number of employees exposed in particular industries.' " Ante, at 321 n.17. If, under the present scheme, entry to covered premises is denied, the inspector can gain entry only by informing his administrative superiors of the refusal and seeking a court order requiring the employer to submit to the inspection. The inspector who would like to conduct a nonroutine search is just as likely to be deterred by the prospect of informing his superiors of his intention and of making false representations to the court when he seeks compulsory process as by the prospect of having to make bad-faith representations in an ex parte warrant proceeding.
42
The other two asserted purposes of the administrative warrant are also adequately achieved under the existing scheme. If the employer has doubts about the official status of the inspector, he is given adequate opportunity to reassure himself in this regard before permitting entry. The OSHA inspector's sta utory right to enter the premises is conditioned upon the presentation of appropriate credentials. 29 U.S.C. § 657(a)(1). These credentials state the inspector's name, identify him as an OSHA compliance officer, and contain his photograph and signature. If the employer still has doubts, he may make a toll-free call to verify the inspector's authority. Usery v. Godfrey Brake & Supply Service, Inc., 545 F.2d 52, 54 (CA 8 1976), or simply deny entry and await the presentation of a court order.
43
The warrant is not needed to inform the employer of the lawful limits of an OSHA inspection. The statute expressly provides that the inspector may enter all areas in a covered business "where work is performed by an employee of an employer," 29 U.S.C. § 657(a)(1), "to inspect and investigate during regular working hours and at other reasonable times, and within reasonable limits and in a reasonable manner . . . all pertinent conditions, structures, machines, apparatus, devices, equipment, and materials therein . . . ." 29 U.S.C. § 657(a)(2). See also 29 CFR § 1903 (1977). While it is true that the inspection power granted by Congress is broad, the warrant procedure required by the Court does not purport to restrict this power but simply to ensure that the employer is apprised of its scope. Since both the statute and the pertinent regulations perform this informational function, a warrant is superfluous.
44
Requiring the inspection warrant, therefore, adds little in the way of protection to that already provided under the existing enforcement scheme. In these circumstances, the warrant is essentially a formality. In view of the obviously enormous cost of enforcing a health and safety scheme of the dimensions of OSHA, this Court should not, in the guise of construing the Fourth Amendment, require formalities which merely place an additional strain on already overtaxed federal resources.
45
Congress, like this Court, has an obligation to obey the mandate of the Fourth Amendment. In the past the Court "has been particularly sensitive to the Amendment's broad standard of 'reasonableness' where . . . authorizing statutes permitted the challenged searches." Almeida-Sanchez v. United States, 413 U.S. 266, 290, 93 S.Ct. 2535, 2548, 37 L.Ed.2d 596 (WHITE, J., dissenting). In United States v. Martinez-Fuerte, 428 U.S. 543, 96 S.Ct. 3074, 49 L.Ed.2d 1116, for example, respondents challenged the routine stopping of vehicles to check for aliens at permanent checkpoints located away from the border. The checkpoints were established pursuant to statutory authority and their location and operation were governed by administrative criteria. The Court rejected respondents' argument that the constitutional reasonableness of the location and operation of the fixed checkpoints should be reviewed in aCamara warrant proceeding. The Court observed that the reassuring purposes of the inspection warrant were adequately served by the visible manifestations of authority exhibited at the fixed checkpoints.
46
Moreover, although the location and method of operation of the fixed checkpoints were deemed critical to the constitutional reasonableness of the challenged stops the Court did not require Border Patrol officials to obtain a warrant based on a showing that the checkpoints were located and operated in accordance with administrative standards. Indeed, the Court observed that "[t]he choice of checkpoint locations must be left largely to the discretion of Border Patrol officials, to be exercised in accordance with statutes and regulations that may be applicable . . . [and] [m]any incidents of checkpoint operation also must be committed to the discretion of such officials." 428 U.S., at 559-560, n.13, 96 S.Ct., at 3083. The Court had no difficulty assuming that those officials responsible for allocating limited enforcement resources would be "unlikely to locate a checkpoint where it bears arbitrarily or oppressively on motorists as a clas ." Id. at 559, 96 S.Ct. at 3083.
47
The Court's recognition of Congress' role in balancing the public interest advanced by various regulatory statutes and the private interest in being free from arbitrary governmental intrusion has not been limited to situations in which, for example, Congress is exercising its special power to exclude aliens. Until today, we have not rejected a congressional judgment concerning the reasonableness of a category of regulatory inspections of commercial premises.7 While businesses are unquestionably entitled to Fourth Amendment protection, we have "recognized that a business by its special nature and voluntary existence, may open itself to intrusions that would not be permissible in a purely private context." G. M. Leasing Corp. v. United States, 429 U.S. 338, 353, 97 S.Ct. 619, 629, 50 L.Ed.2d 530. Thus, in Colonnade Catering Corp. v. United States, 397 U.S. 72, 90 S.Ct. 774, 25 L.Ed.2d 60, the Court recognized the reasonableness of a statutory authorization to inspect the premises of a caterer dealing in alcoholic beverages, noting that "Congress has broad power to design such powers of inspection under the liquor laws as it deems necessary to meet the evils at hand." Id., at 76, 90 S.Ct. at 777. And in United States v. Biswell, 406 U.S. 311, 92 S.Ct. 1593, 32 L.Ed.2d 87, the Court sustained the authority to conduct warrantless searches of firearm dealers under the Gun Control Act of 1968 primarily on the basis of the reasonableness of the congressional evaluation of the interests at stake.8
48
The Court, however, concludes that the deference accorded Congress in Biswell and Colonnade should be limited to situations where the evils addressed by the regulatory statute are peculiar to a specific industry and that industry is one which has long been subject to Government regulation. The Court reasons that only in those situations can it be said that a person who engages in business will be aware of and consent to routine, regulatory inspections. I cannot agree that the respect due the congressional judgment should be so narrowly confined.
49
In the first place, the longevity of a regulatory program does not, in my judgment, have any bearing on the reasonableness of routine inspections necessary to achieve adequate enforcement of that program. Congress' conception of what constitute urgent federal interests need not remain static. The recent vintage of public and congressional awareness of the dangers posed by health and safety hazards in the workplace is not a basis for according less respect to the considered judgment of Congress. Indeed, in Biswell, the Court upheld an inspection program authorized by a regulatory statute enacted in 1968. The Court there noted that "[f]ederal regulation of the interstate traffic in firearms is not as deeply rooted in history as is governmental control of the liquor industry, but close scrutiny of this traffic is undeniably" an urgent federal interest. 406 U.S., at 315, 92 S.Ct. at 1596. Thus, the critical fact is the congressional determination that federal regulation would further significant public interests, not the date that determination was made.
50
In the second place, I see no basis for the Court's conclusion that a congressional determination that a category of regulatory inspections is reasonable need only be respected when Congress is legislating on an industry-by-industry basis. The pertinent inquiry is not whether the inspection program is authorized by a regulatory statute directed at a single industry, but whether Congress has limited the exercise of the inspection power to those commercial premises where the evils at which the statute is directed are to be found. Thus, in Biswell, if Congress had authorized inspections of all commercial premises as a means of restricting the illegal traffic in firearms, the Court would have found the inspection program unreasonable; the power to inspect was upheld because it was tailored to the subject matter of Congress' proper exercise of regulatory power. Similarly, OSHA is directed at health and safety hazards in the workplace, and the inspection power granted the Secretary extends only to those areas where such hazards are likely to be found.
51
Finally, the Court would distinguish the respect accorded Congress' judgment in Colonnade and Biswell on the ground that businesses engaged in the liquor and firearms industry " 'accept the burdens as well as the benefits of their trade . . . .' " Ante, at 313. In the Court's view, such businesses consent to the restrictions placed upon them, while it would be fiction to conclude that a businessman subject to OSHA consented to routine safety inspections. In fact, however, consent is fictional in both contexts. Here, as well as in Biswell, businesses are required to be aware of and comply with regulations governing their business activities. In both situations, the validity of the regulations depends not upon the consent of those regulated, but on the existence of a federal statute embodying a congressional determination that the public interest in the health of the Nation's work force or the limitation of illegal firearms traffic outweighs the businessman's interest in preventing a Government inspector from viewing those areas of his premises which relate to the subject matter of the regulation.
52
The case before us involves an attempt to conduct a warrantless search of the working area of an electrical and plumbing contractor. The statute authorizes such an inspection during reasonable hours. The inspection is limited to those areas over which Congress has exercised its proper legislative authority.9 The area is also one to which employees have regular access without any suggestion that the work performed or the equipment used has any special claim to confidentiality.10 Congress has determined that industrial safety is an urgent federal interest requiring regulation and supervision, and further, that warrantless inspections are necessary to accomplish the safety goals of the legislation. While one may question the wisdom of pervasive governmental oversight of industrial life, I decline to question Congress' judgment that the inspection power is a necessary enforcement device in achieving the goals of a valid exercise of regulatory power.11
53
I respectfully dissent.
1
In order to carry out the purposes of this chapter, the Secretary, upon presenting appropriate credentials to the owner, operator, or agent in charge, is authorized—
"(1) to enter without delay and at reasonable times any factory, plant, establishment, construction site, or other area, workplace or environment where work is performed by an employee of an employer; and
"(2) to inspect and investigate during regular working hours and at other reasonable times, and within reasonable limits and in a reasonable manner, any such place of employment and all pertinent conditions, structures, machines, apparatus, devices, equipment, and materials therein, and to question privately any such employer, owner, operator, agent, or employee."
84 Stat. 1598, 29 U.S.C. § 657(a).
2
This is required by the Act. See n. 1, supra.
3
A regulation of the Secretary, 29 CFR § 1903.4 (1977), requires an inspector to seek compulsory process if an employer refuses a requested search. See infra, at 317, and n. 12.
4
No res judicata bar arose against Mr. Barlow from the December 30, 1975, order authorizing a search, because the earlier decision reserved the constitutional issue. See 424 F.Supp. 437.
5
H. Commager, Documents of American History 104 (8th ed. 1968).
6
See, e. g., Dickerson, Writs of Assistance as a Cause of the Revolution in The Era of the American Revolution 40 (R. Morris ed. 1939).
7
The Stamp Act of 1765, the Townshend Revenue Act of 1767, and the tea tax of 1773 are notable examples. See Commager, supra, n. 5, at 53, 63. For commentary, see 1 S. Morison, H. Commager, & W. Leuchtenburg, The Growth of the American Republic 143, 149, 159 (1969).
8
The Government has asked that Mr. Barlow be ordered to show cause why he should not be held in contempt for refusing to honor the inspection order, and its position is that the OSHA inspector is now entitled to enter at once, over Mr. Barlow's objection.
9
Cf. Air Pollution Variance Bd. v. Western Alfalfa Corp., 416 U.S. 861, 94 S.Ct. 2114, 40 L.Ed.2d 607 (1974).
10
The automobile-search cases cited by the Secretary are even less helpful to his position than the labor cases. The fact that automobiles occupy a special category in Fourth Amendment case law is by now beyond doubt due, among other factors, to the quick mobility of a car, the registration requirements of both the car and the driver, and the more available opportunity for plain-view observations of a car's contents. Cady v. Dombrowski, 413 U.S. 433, 441-442, 93 S.Ct. 2523, 2528, 37 L.Ed.2d 706 (1973); see also Chambers v. Maroney, 399 U.S. 42, 48-51, 90 S.Ct. 1975, 1979-1981, 26 L.Ed.2d 419 (1970). Even so, probable cause has not been abandoned as a requirement for stopping and searching an automobile.
11
We recognize that today's holding itself might have an impact on whether owners choose to resist requested searches; we can only await the development of evidence not present on this record to determine how serious an impediment to effective enforcement this might be.
12
It is true, as the Secretary asserts, that § 8(a) of the Act, 29 U.S.C. § 657(a), purports to authorize inspections without warrant; but it is also true that it does not forbid the Secretary from proceeding to inspect only by warrant or other process. The Secretary has broad authority to prescribe such rules and regulations as he may deem necessary to carry out his responsibilities under this chapter, "including rules and regulations dealing with the inspection of an employer's establishment." § 8(g)(2), 29 U.S.C. § 657(g)(2). The regulations with resp ct to inspections are contained in 29 CFR Part 1903 (1977). Section 1903.4, referred to in the text, provides as follows:
"Upon a refusal to permit a Compliance Safety and Health Officer, in the exercise of his official duties, to enter without delay and at reasonable times any place of employment or any place therein, to inspect, to review records, or to question any employer, owner, operator, agent, or employee, in accordance with § 1903.3, or to permit a representative of employees to accompany the Compliance Safety and Health Officer during the physical inspection of any workplace in accordance with § 1903.8, the Compliance Safety and Health Officer shall terminate the inspection or confine the inspection to other areas, conditions, structures, machines, apparatus, devices, equipment, materials, records, or interviews concerning which no objection is raised. The Compliance Safety and Health Officer shall endeavor to ascertain the reason for such refusal, and he shall immediately report the refusal and the reason therefor to the Area Director. The Area Director shall immediately consult with the Assistant Regional Director and the Regional Solicitor, who shall promptly take appropriate action, including compulsory process, if necessary."
When his representative was refused admission by Mr. Barlow, the Secretary proceeded in federal court to enforce his right to enter and inspect, as conferred by 29 U.S.C. § 657.
13
A change in the language of the Compliance Operations Manual for OSHA inspectors supports the inference that, whatever the Act's administrators might have thought at the start, it was eventually concluded that enforcement efficiency would not be jeopardized by permitting employers to refuse entry, at least until the inspector obtained compulsory process. The 1972 Manual included a section specifically directed to obtaining "warrants," and one provision of that section dealt with ex parte warrants:
"In cases where a refusal of entry is to be expected from the past performance of the employer, or where the employer has given some indication prior to the commencement of the investigation of his intention to bar entry or limit or interfere with the investigation, a warrant should be obtained before the inspection is attempted. Cases of this nature should also be referred through the Area Director to the appropriate Regional Solicitor and the Regional Administrator alerted." Dept. of Labor, OSHA Compliance Operations Manual V-7 (Jan. 1972).
The latest available manual, incorporating changes as of November 1977, deletes this provision, leaving only the details for obtaining "compulsory process" after an employer has refused entry. Dept. of Labor, OSHA Field Operations Manual, Vol. V, pp. V-4 - V-5. In its present form, the Secretary's regulation appears to permit establishment owners to insist on "process"; and hence their refusal to permit entry would fall short of criminal conduct within the meaning of 18 U.S.C. §§ 111 and 1114 (1976 ed.), which make it a crime forcibly to impede, intimidate, or interfere with federal officials, including OSHA inspectors, while engaged in or on account of the performance of their official duties.
14
The proceeding was instituted by filing an "Application for Affirmative Order to Grant Entry and for an Order to show cause why such affirmative
order should not issue." The District Court issued the order to show cause, the matter was argued, and an order then issued authorizing the inspection and enjoining interference by Barlow's. The following is the order issued by the District Court:
"IT IS HEREBY ORDERED, ADJUDGED AND DECREED that the United States of America, United States Department of Labor, Occupational Safety and Health Administration, through its duly designated representative or representatives, are entitled to entry upon the premises known as Barlow's Inc., 225 West Pine, Pocatello, Idaho, and may go upon said business premises to conduct an inspection and investigation as provided for in Section 8 of the Occ pational Safety and Health Act of 1970 (29 U.S.C. 651, et seq.), as part of an inspection program designed to assure compliance with that Act; that the inspection and investigation shall be conducted during regular working hours or at other reasonable times, within reasonable limits and in a reasonable manner, all as set forth in the regulations pertaining to such inspections promulgated by the Secretary of Labor, at 29 C.F.R., Part 1903; that appropriate credentials as representatives of the Occupational Safety and Health Administration, United States Department of Labor, shall be presented to the Barlow's Inc. representative upon said premises and the inspection and investigation shall be commenced as soon as practicable after the issuance of this Order and shall be completed within reasonable promptness; that the inspection and investigation shall extend to the establishment or other area, workplace, or environment where work is performed by employees of the employer, Barlow's Inc., and to all pertinent conditions, structures, machines, apparatus, devices, equipment, materials, and all other things therein (including but not limited to records, files, papers, processes, controls, and facilities) bearing upon whether Barlow's Inc. is furnishing to its employees employment and a place of employment that are free from recognized hazards that are causing or are likely to cause death or serious physical harm to its employees, and whether Barlow's Inc. is complying with the Occupational Safety and Health Standards promulgated under the Occupational Safety and Health Act and the rules, regulations, and orders issued pursuant to that Act; that representatives of the Occupational Safety and Health Administration may, at the option of Barlow's Inc., be accompanied by one or more employees of Barlow's Inc., pursuant to Section 8(e) of that Act; that Barlow's Inc., its agents, representatives,
officers, and employees are hereby enjoined and restrained from in anyway whatsoever interfering with the inspection and investigation authorized by this Order and, further, Barlow's Inc. is hereby ordered and directed to, within five working days from the date of this Order, furnish a copy of this Order to its officers and managers, and, in addition, to post a copy of this Order at its employee's bulletin board located upon the business premises; and Barlow's Inc. is hereby ordered and directed to comply in all respects with this order and allow the inspection and investigation to take place without delay and forthwith."
15
Insofar as the Secretary's statutory authority is concerned, a regulation expressly providing that the Secretary could proceed ex parte to seek a warrant or its equivalent would appear to be as much within the Secretary's power as the regulation currently in force and calling for "compulsory process."
16
Section 8(f)(1), 29 U.S.C. § 657(f)(1), provides that employees or their representatives may give written notice to the Secretary of what they believe to be violations of safety or health standards and may request an inspection. If the Secretary then determines that "there are reasonable grounds to believe that such violation or danger exists, he shall make a special inspection in accordance with the provisions of this section as soon as practicable." The statute thus purports to authorize a warrantless inspection in these circumstances.
17
The Secretary, Brief for Petitioner 9 n. 7, states that the Barlow inspection was not based on an employee complaint but was a "general schedule" investigation. "Such general inspections," he explains, "now called Regional Programmed Inspections, are carried out in accordance with criteria based upon accident experience and the number of employees exposed in particular industries. U. S. Department of Labor, Occupational Safety and Health Administration, Field Operations Manual, supra, 1 CCH Employment Safety and Health Guide ¶ 4327.2 (1976)."
18
The Federal Metal and Nonmetallic Mine Safety Act provides: "Whenever an operator . . . refuses to permit the inspection or investigation of any mine which is subject to this chapter . . . a civil action for preventive relief, including an application for a permanent or temporary injunction, restraining order, or other order, may be instituted by the
Secretary in the district court of the United States for the district . . . ." 30 U.S.C. § 733(a). "The Secretary may institute a civil action for relief, including a permanent or temporary injunction, restraining order, or any other appropriate order in the district court . . . whenever such operator or his agent . . . refuses to permit the inspection of the mine . . . . Each court shall have jurisdiction to provide such relief as may be appropriate." 30 U.S.C. § 818. Another example is the Clean Air Act, which grants federal district courts jurisdiction "to require compliance" with the Administrator of the Environmental Protection Agency's attempt to inspect under 42 U.S.C. § 7414 (1976 ed., Supp. I), when the Administrator has commenced "a civil action" for injunctive relief or to recover a penalty. 42 U.S.C. § 7413(b)(4) (1976 ed., Supp. I).
19
Exemplary language is contained in the Animal Welfare Act of 1970 which provides for inspections by the Secretary of Agriculture; federal district courts are vested with jurisdiction "specifically to enforce, and to prevent and restrain violations of this chapter, and shall have jurisdiction in all other kinds of cases arising under this chapter." 7 U.S.C. § 2146(c) (1976 ed.). Similar provisions are included in other agricultural inspection Acts; see, e. g., 21 U.S.C. § 674 (meat product inspection); 21 U.S.C. § 1050 (egg product inspection). The Internal Revenue Code, whose excise tax provisions requiring inspections of businesses are cited by the Secretary, provides: "The district courts . . . shall have such jurisdiction to make and issue in civil actions, writs and orders of injunction . . . and such other orders and processes, and to render such . . . decrees as may be necessary or appropriate for the enforcement of the internal revenue laws." 26 U.S.C. § 7402(a). For gasoline inspections, federal district courts are granted jurisdiction to restrain violations and enforce standards (one of which, 49 U.S.C. § 1677, requires gas transporters to permit entry or inspection). The owner is to be afforded the opportunity for notice and response in most cases, but "failure to give such notice and afford such opportunity shall not preclude the granting of appropriate relief [by the district court]." 49 U.S.C. § 1679(a).
20
The application for the inspection order filed by the Secretary in this case represented that "the desired inspection and investigation are contemplated as a part of an inspection program designed to assure compliance with the Act and are authorized by Section 8(a) of the Act." The program was not described, however, or any facts presented that would indicate why an inspection of Barlow's establishment was within the program. The order that issued concluded generally that the inspection authorized was "part of an inspection program designed to assure compliance with the Act."
21
Section 8(a) of the Act, as set forth in 29 U.S.C. § 657(a), provides that "in order to carry out the purposes of this chapter" the Secretary may enter any establishment, area, work place or environment "where work is performed by an employee of an employer" and "inspect and investigate" any such place of employment and all "pertinent conditions, structures, machines, apparatus, devices, equipment, and materials therein, and . . . question privately any such employer, owner, operator, agent, or employee." Inspections are to be carried out "during regular working hours and at other reasonable times, and within reasonable limits and in a reasonable manner." The Secretary's regulations echo the statutory language in these respects. 29 CFR § 1903.3 (1977). They also provide that inspectors are to explain the nature and purpose of the inspection and to "indicate generally the scope of the inspection." 29 CFR § 1903.7(a) (1977). Environmental samples and photographs are authorized, 29 CFR § 1903.7(b) (1977), and inspections are to be performed so as "to preclude unreasonable disruption of the operations of the employer's establishment." 29 CFR § 1903.7(d) (1977). The order that issued in this case reflected much of the foregoing statutory and regulatory language.
22
Delineating the scope of a search with some care is particularly important where documents are involved. Section 8(c) of the Act, 29 U.S.C. § 657(c), provides that an employer must "make, keep and preserve, and make available to the Secretary [of Labor] or to the Secretary of Health, Education and Welfare" such records regarding his activities relating to OSHA as the Secretary of Labor may prescribe by regulation as necessary or appropriate for enforcement of the statute or for developing information regarding the causes and prevention of occupational accidents and illnesses. Regulations requiring employers to maintain records of and to make periodic reports on "work-related deaths, injuries and illnesses" are also contemplated, as are rules requiring accurate records of employee exposures to potential toxic materials and harmful physical agents.
In describing the scope of the warrantless inspection authorized by the statute, § 8(a) does not expressly include any records among those items or things that may be examined, and § 8(c) merely provides that the employer is to "make available" his pertinent records and to make periodic reports.
The Secretary's regulation, 29 CFR § 1903.3 (1977), however, expressly includes among the inspector's powers the authority "to review records required by the Act and regulations published in this chapter, and other records which are directly related to the purpose of the inspection." Further, § 1903.7 requires inspectors to indicate generally "the records specified in § 1903.3 which they wish to review" but "such designations of records shall not preclude access to additional records specified in § 1903.3." It is the Secretary's position, which we reject, that an inspection of documents of this scope may be effected without a warrant.
The order that issued in this case included among the objects and things to be inspected "all other things therein (including but not limited to records, files, papers, processes, controls and facilities) bearing upon whether Barlow's, Inc. is furnishing to its employees employment and a place of employment that are free from recognized hazards that are causing or are likely to cause death or serious physical harm to its employees, and whether Barlow's, Inc. is complying with . . ." the OSHA regulations.
23
The injunction entered by the District Court, however, should not be understood to forbid the Secretary from exercising the inspection authority conferred by § 8 pursuant to regulations and judicial process that satisfy the Fourth Amendment. The District Court did not address the issue whether the order for inspection that was issued in this case was the functional equivalent of a warrant, and the Secretary has limited his submission in this case to the constitutionality of a warrantless search of the Barlow establishment authorized by § 8(a). He has expressly declined to rely on 29 CFR § 1903.4 (1977) and upon the order obtained in this case. Tr. of Oral Arg. 19. Of course, if the process obtained here, or obtained in other cases under revised regulations, would satisfy the Fourth Amendment, there would be no occasion for enjoining the inspections authorized by § 8(a).
1
"The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated . . . ."
2
"[A]nd 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
J. Landynski, Search and Seizure and the Supreme Court 19 (1966).
4
T. Taylor, Two Studies in Constitutional Interpretation 41 (1969).
5
See v. City of Seattle, 387 U.S. 541, 547, 87 S.Ct. 1737, 1741, 18 L.Ed.2d 943 (Clark, J., dissenting).
6
When it passed OSHA, Congress was cognizant of the fact that in light of the enormity of the enforcement task "the number of inspections which it would be desirable to have made will undoubtedly for an unforeseeable period, exceed the capacity of the inspection force . . . ." Senate Committee on Labor and Public Welfare, Legislative History of the Occupational Safety and Health Act of 1970, 92d Cong., 1st Sess., 152 (Comm.Print 1971).
7
The Court's rejection of a legislative judgment regarding the reasonableness of the OSHA inspection program is especially puzzling in light of recent decisions finding law enforcement practices constitutionally reasonable, even though those practices involved significantly more individual discretion than the OSHA program. See, e. g., Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889; Adams v. Williams, 407 U.S. 143, 92 S.Ct. 1921, 32 L.Ed.2d 612; Cady v. Dombrowski, 413 U.S. 433, 93 S.Ct. 2523, 37 L.Ed.2d 706; South Dakota v. Opperman, 428 U.S. 364, 96 S.Ct. 3092, 49 L.Ed.2d 1000.
8
The Court held:
"In the context of a regulatory inspection system of business premises that is carefully limited in time, place, and scope, the legality of the search depends . . . on the authority of a valid statute.
* * * * *
"We have little difficulty in concluding that where, as here, regulatory inspections further urgent federal interest, and the possibilities of abuse and the threat to privacy are not of impressive dimensions, the inspection may proceed without a warrant where specifically authorized by statute." 406 U.S., at 315, 317, 92 S.Ct., at 1596.
9
What the Court actually decided in Camara v. Municipal Court, 387 U.S. 523, 87 S.Ct. 1727, 18 L.Ed.2d 930, and See v. City of Seattle, 387 U.S. 541, 87 S.Ct. 1737, 18 L.Ed.2d 943, does not require the result it reaches today. Camara involved a residence, rather than a business establishment; although the Fourth Amendment extends its protection to commercial buildings, the central importance of protecting residential privacy is manifest. The building involved in See was, of course, a commercial establishment, but a holding that a locked warehouse may not be entered pursuant to a general authorization to "enter all buildings and premises, except the interior of dwellings, as often as may be necessary," 387 U.S., at 541, 87 S.Ct. at 1738, need not be extended to cover more carefully delineated grants of authority. My view that the See holding should be narrowly confined is influenced by my favorable opinion of the dissent written by Mr. Justice Clark and joined by Justices Harlan and Stewart. As Colonnade and Biswell demonstrate, however, the doctrine of stare decisis does not compel the Court to extend those cases to govern today's holding.
10
The Act and pertinent regulation provide protection for any trade secrets of the employer. 29 U.S.C. §§ 664-665; 29 CFR § 1903.9 (1977).
11
The decision today renders presumptively invalid numerous inspection provisions in federal regulatory statutes. E. g., 30 U.S.C. § 813 (Federal Coal Mine Health and Safety Act of 1969); 30 U.S.C. §§ 723, 724 (Federal Metal and Nonmetallic Mine Safety Act); 21 U.S.C. § 603 (inspection of meat and food products). That some of these provisions apply only to a single industry, as noted above, does not alter this fact. And the fact that some "envision resort to federal-court enforcement when entry is refused" is also irrelevant since the OSHA inspection program invalidated here requires compulsory process when a compliance inspector has been denied entry. Ante, at 321.
| 01
|
436 U.S. 407
98 S.Ct. 2276
56 L.Ed.2d 381
Joseph VITEK, etc., et al., appellants,v.Larry D. JONES, appellees
No. 77- 888
Supreme Court of the United States
May 23, 1978
May 23, 1978.
PER CURIAM.
1
This appeal presents a challenge under the Due Process Clause of the Fourteenth Amendment to a state statute which authorizes the transfer of a state prisoner, without his consent, to a state mental hospital upon a finding by a physician or psychologist that the prisoner suffers from a mental disease or defect and that he cannot be given proper treatment within the facility in which he is confined.1
2
Appellee Larry D. Jones2 was convicted of the crime of robbery and was sentenced to a prison term of three to nine years. In May 1974, he began serving his sentence at the Nebraska Penal and Correctional Complex, a state prison. In January 1975, appellee was transferred to the penitentiary hospital; two days later he was placed in solitary confinement in the prison adjustment center. While there, appellee set his mattress on fire and suffered serious burns. Appellee was transferred by ambulance to the burn unit of a private hospital where he remained for some four months. In April 1975, immediately following his release from the hospital, appellee was transferred to the security unit of the Lincoln Regional Center, a hospital facility owned and operated by the State of Nebraska for the purpose of providing treatment for persons af licted with emotional and mental disorders.
3
In advance of his transfer to Lincoln Regional Center, appellee was examined by a psychiatrist as required by Neb.Rev.Stat. § 83-180 (1976). The evidence adduced before the District Court revealed that, when asked by the examining psychiatrist whether or not he wished to be transferred, appellee answered that he did. However, the District Court deemed the transfer to have been involuntary because appellee was offered no means of obtaining independent advice on the subject and because, in the view of the District Court, appellee "may well not have been competent to exercise a free choice."3 It is undisputed that, in transferring appellee from a prison facility to a mental institution, the correctional authorities exercised the authority conferred on them by the state statute challenged here.
4
In April 1976, appellee filed a complaint in the United States District Court for the District of Nebraska seeking to intervene in a civil rights action brought by a state prisoner who, like appellee, had been transferred from the State Penal Complex to Lincoln Regional Center.
5
The three-judge District Court agreed that due process attached to plaintiffs' asserted liberty interest and declared § 83-180(1) unconstitutional as applied. Miller v. Vitek, 437 F.Supp. 569. The District Court also enjoined the transfer of any state prisoner from a penal facility to a mental institution except in compliance with procedures similar to those identified in this Court's opinions in Morrissey v. Brewer, 408 U.S. 471, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1971), and Wolff v. McDonnell, 418 U.S. 539, 94 S.Ct. 2963, 41 L.Ed.2d 935 (1974). Additional procedures set forth by the District Court require the State to furnish the inmate with effective and timely notice of his rights and, in the case of an indigent inmate, with legal counsel. We noted probable jurisdiction.4
6
On November 17, 1977,5 the Nebraska Board of Parole granted appellee parole for the purpose of allowing him to receive in-patient psychiatric care at the Veterans Hospital in Danville, Ill. During the course of oral argument in this Court, appellee's counsel advised the Court that appellee has accepted the parole offered to him and agreed to treatment at the Veterans Hospital. Moreover, according to counsel, appellee is now cooperating with the medical staff assigned to his care and voluntarily taking medication prescribed for him.6
7
In light of these disclosures, the judgment of the United States District Court for the District of Nebraska is hereby vacated, and the case is remanded to the District Court for consideration of the question of mootness.
8
Vacated and remanded.
9
Mr. Justice STEVENS, dissenting.
10
The question whether a person convicted of a crime has a constitutional right to a hearing before being involuntarily placed in a mental institution is an important one. In this case the three-judge District Court answered that question in the affirmative and entered an injunction protecting appellee agai st the risk of an arbitrary transfer. As long as he remains in appellants' custody, he will continue to encounter that risk unless the District Court's injunction remains in effect. Recognizing this, the District Court explicitly provided that appellants "are enjoined from transferring . . . Larry D. Jones, at any time before his complete discharge from the custody of the State of Nebraska,"1 without following the mandated procedures.
11
It is undisputed that Jones remains in the custody of the State of Nebraska.2 At the moment, he is on limited parole, and, as a condition of that parole, is receiving in-patient psychiatric services in Danville, Ill. I have previously expressed my disagreement with this Court's conclusion that a parole release moots a controversy between a prisoner and the State over proper parole procedures, see Scott v. Kentucky Parole Board, 429 U.S. 60, 97 S.Ct. 342, 50 L.Ed.2d 218 (STEVENS, J., dissenting), and what was said in Scott applies with even greater force here. For unlike Scott, Jones has not challenged the Nebraska parole procedures, and his limited release on parole does not even arguably moot this live controversy between two adverse litigants. Jones challenged the procedures provided for the transfer of a criminal convict under the State's custody to a mental hospital. He is still in a mental hospital; he is still under the State's custody; and if he refuses treatment at this hospital, the State asserts the right to transfer him, involuntarily and without a hearing, to another mental hospital. In short, nothing has happened to destroy or even substantially lessen Jones' interest in preserving the injunction entered below, and appellants' interest in vindicating the Nebraska statute is similarly unaffected. I therefore respectfully dissent from the Court's disposition of this appeal.
1
Nebraska Rev.Stat. § 83-180 (1976) provides in relevant part:
"[W]hen a physician or psychologist designated by the [Director of Correctional Services] finds that a person committed to the [Department of Correctional Services] suffers from a mental disease or defect, the chief executive officer may order such person to be segregated from other persons in the facility. If the physician or psychologist is of the opinion that the person cannot be given proper treatment in that facility, the director may arrange for his transfer for examination, study, and treatment to any medical-correctional facility, or to another institution in the Department of Public Institutions where proper treatment is available. A person who is so transferred shall remain subject to the jurisdiction and custody of the Department of Correctional Services and shall be returned to the department when, prior to the expiration of his sentence, treatment in such facility is no longer necessary."
2
This lawsuit was initially brought by a single plaintiff, Charles Miller. On August 18, 1976, plaintiff's suit was certified as a class action. After a hearing, the action was decertified. Thereafter, William McKinley Hines, William George Foote, and Larry D. Jones were added as individual plaintiffs-intervenors. Hines, who had been returned to state prison and released on parole, did not participate in the proceedings before the District Court, which ordered him dismissed as a plaintiff-intervenor on September 12, 1977. Prior to the entry of the judgment below, Miller and Foote each completed his maximum sentence and received a final discharge. Jones is the sole appellee in this Court.
3
Miller v. Vitek, 437 F.Supp. 569, 571 n. 3.
4
434 U.S. 1060, 98 S.Ct. 1230, 55 L.Ed.2d 760 (1978).
5
The District Court rendered its judgment in this case on October 14, 1977.
6
Tr. of Oral Arg. 13, 19, 41-44.
1
App. to Jurisdictional Statement 2 (emphasis added).
2
Jones' tentative discharge date is not until March 1982. Brief for Appellants on the Question of Mootness 2.
| 89
|
436 U.S. 493
98 S.Ct. 1939
56 L.Ed.2d 480
GENERAL ATOMIC COMPANYv.Edwin L. FELTER, District Judge, etc., et al.
No. 77-1237.
May 30, 1978.
PER CURIAM.
1
Petitioner has filed a motion for leave to file a petition for a writ of mandamus and requests that a writ of mandamus issue to the District Court for the First Judicial District, Santa Fe County, N. M., directing the court to vacate two orders on the ground that they violated this Court's mandate in General Atomic Co. v. Felter, 434 U.S. 12, 98 S.Ct. 76, 54 L.Ed.2d 199 (1977).
2
In that opinion, we held that under the Supremacy Clause of the United States Constitution the Santa Fe court lacked power to enjoin the General Atomic Co. (GAC) from filing and prosecuting in personam actions against the United Nuclear Corp. (UNC) in federal court. Upon remand, the Santa Fe court modified its injunction "to exclude from its terms and conditions all in personam actions in Federal Courts and all other matters mandated to be excluded from the operation of said preliminary injunction by the opinion of the United States Supreme Court, dated October 31, 1977." Shortly thereafter, GAC filed a demand for arbitration with UNC of issues growing out of the 1973 uranium supply agreement around which the litigation between the parties revolves. This demand, filed with the American Arbitration Association, relied upon the Federal Arbitration Act, 9 U.S.C. § 1 et seq., (1976 ed.), and the arbitration clause of the 1973 agreement. GAC also filed demands for arbitration against UNC in the federal arbitration proceedings involving Duke Power Co. (Duke) and moved for permission to file a cross-claim against UNC in the arbitration proceedings involving Commonwealth Edison Co. (Commonwealth). Finally, GAC requested the Santa Fe court to stay its own trial proceedings with respect to issues subject to these arbitration demands. UNC, in addition to opposing this motion, also asked the court to stay the arbitration proceedings.
3
On December 16, 1977, the Santa Fe court issued a decision in which it concluded that GAC had waived any right to arbitration with UNC which it might have had because it failed to demand arbitration in a timely manner and that neither the Duke nor Commonwealth agreements gave GAC any right to demand arbitration with UNC. On the basis of these conclusions, Judge Felter filed the following order staying the arbitration proceedings:
4
"IT IS THEREFORE ORDERED, ADJUDGED AND DECREED that United Nuclear Corporation's Application for Order Staying Arbitrations and Partial Final Judgment, be and the same hereby is granted.
5
"IT IS FURTHER ORDERED, ADJUDGED AND DECREED that further arbitration proceedings predicated upon the following demands for arbitration made by Defendant General Atomic Company against Plaintiff United Nuclear Corporation in the following arbitration proceedings, viz:
6
"A. The Demand for Arbitration filed by General Atomic Company on November 29, 1977 with the American Arbitration Association for arbitration of the disputes arising under the 1973 Supply Agreement, a copy of which is attached to GAC's Motion to Stay Proceedings,
7
"B. Duke Power Company v. GAC, Case No. 31-10-0009-76, in Charlotte, North Carolina,
8
"C. Commonwealth Edison Company v. UNC, GAC and Gulf, Case No. 51-10-0106-74-C in Chicago, Illinois,
9
"shall be, and each of them hereby are, stayed until the further order of the Court, Provided, however, that this Partial Final Judgment shall not, in and of itself, operate to preclude Defendant General Atomic Company from asserting claimed federal rights in appropriate judicial proceedings.
10
"IT IS FURTHER ORDERED, DECLARED, DETERMINED AND ADJUDICATED that Defendant General Atomic Company has no right to arbitrate any issue in the aforesaid arbitration proceedings or pending herein against Plaintiff United Nuclear Corporation."
11
On December 27, 1977, the court formally denied GAC's motion to stay the trial pending completion of the arbitration proceedings.
12
During the course of our opinion in General Atomic Co., we specifically addressed the restrictions placed by the Santa Fe court's previous injunction upon GAC's attempt to assert what it believed to be federally guaranteed arbitration rights in other forums:
13
"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. . . . 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 [v. City of Dallas, 377 U.S. 408, 84 S.Ct. 1579, 12 L.Ed.2d 409 (1964)]. Federal courts are fully capable of preventing their misuse for purposes of harassment." 434 U.S., at 18-19, 98 S.Ct., at 79.
14
Footnote 11 specifically addressed arbitration proceedings which are the subject of Judge Felter's new stay order:
15
"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 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 (ND Ill.1975), aff'd, 541 F.2d 1263 (7 Cir. 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 (D.C.1976)."
16
In its order of December 16, 1977, the Santa Fe court has again done precisely what we held that it lacked the power to do: interfere with attempts by GAC to assert in federal forums what it views as its entitlement to arbitration.1 Clearly, our prior opinion did not preclude the court from making findings concerning whether GAC had waived any right to arbitrate or whether such a right was contained in the relevant agreements. Nor did our prior decision prevent the Santa Fe court, on the basis of such findings, from declining to stay its own trial proceedings as requested by GAC pending arbitration in other forums. But, as demonstrated supra, we have held that the Santa Fe court is without power unde the United States Constitution to interfere with efforts by GAC to obtain arbitration in federal forums on the ground that GAC is not entitled to arbitration or for any other reason whatsoever. GAC, as we previously held, has an absolute right to present its claims to federal forums.
17
As was recently reaffirmed in Vendo Co. v. Lektro-Vend Corp., 434 U.S. 425, 98 S.Ct. 702, 54 L.Ed.2d 659 (1978), if a lower court "mistakes or misconstrues the decree of this Court, and does not give full effect to the mandate, its action may be controlled . . . by a writ of mandamus to execute the mandate of this Court." In re Sanford Fork & Tool Co., 160 U.S. 247, 255, 16 S.Ct. 291, 293, 40 L.Ed. 414 (1895). A litigant who, like GAC, has obtained judgment in this Court after a lengthy process of litigation, involving several layers of courts, should not be required to go through that entire process again to obtain execution of the judgment of this Court. In light of the prior proceedings in this matter, it is inconceivable that upon remand from this Court the Santa Fe court was free to again impede GAC's attempt to assert its arbitration claims in federal forums. Because the Santa Fe court has refused or failed to comply with the judgment of this Court, petitioner's motion for leave to file a petition for a writ of mandamus is granted. Assuming as we do that the Santa Fe court will now conform to our previous judgment by promptly vacating or modifying its order of December 16, 1977, to the extent that it places any restriction whatsoever upon GAC's exercise of its right to litigate arbitration claims in federal forums, we do not at present issue a formal writ of mandamus.2 See Bucolo v. Adkins, 424 U.S. 641, 96 S.Ct. 1086, 47 L.Ed.2d 301 (1976); Deen v. Hickman, 358 U.S. 57, 79 S.Ct. 1, 3 L.Ed.2d 28 (1958).
18
It is so ordered.
1
Although the court stated that its order staying the arbitration proceedings "shall not in and of itself operate to preclude Defendant General Atomic Company from asserting its claimed federal rights in appropriate judicial proceedings," the only plausible reading of this provision in light of the stay order is that the court did not view the proceedings in question as "appropriate."
2
We do not read the December 27, 1977, order as restricting GAC from pursuing its arbitration claims in other forums. Consequently there is no occasion to disturb it.
| 89
|
436 U.S. 447
98 S.Ct. 1912
56 L.Ed.2d 444
Albert OHRALIK, Appellant,v.OHIO STATE BAR ASSOCIATION.
No. 76-1650.
Argued Jan. 16, 1978.
Decided May 30, 1978.
Rehearing Denied Oct. 2, 1978.
See 439 U.S. 883, 99 S.Ct. 226.
Syllabus
Appellant, an Ohio lawyer, contacted the parents of one of the drivers injured in an automobile accident after hearing about the accident from another source, and learned that the 18-year-old daughter was hospitalized. He then approached the daughter at the hospital and offered to represent her. After another visit with her parents, he again visited the accident victim in her hospital room, where she signed a contingent-fee agreement. In the meantime, appellant approached the driver's 18-year-old female passenger—who also had been injured—at her home on the day she was released from the hospital; she agreed orally to a contingent-fee arrangement. Eventually, both young women discharged appellant as their lawyer, but he succeeded in obtaining a share of the driver's insurance recovery in settlement of his lawsuit against her for breach of contract. As a result of complaints filed against appellant by the two young women with a bar grievance committee, appellee filed a formal complaint with the disciplinary Board of the Ohio Supreme Court. The Board found that appellant solicited clients in violation of certain Disciplinary Rules, and rejected appellant's defense that his conduct was protected by the First and Fourteenth Amendments. The Ohio Supreme Court adopted the Board's findings, and increased the Board's recommended sanction of a public reprimand to indefinite suspension. Held: The Bar, acting with state authorization, constitutionally may discipline a lawyer for soliciting clients in person, for pecuniary gain, under circumstances likely to pose dangers that the State has a right to prevent and thus the application of the Disciplinary Rules in question to appellant does not offend the Constitution. Bates v. State Bar of Arizona, 433 U.S. 350, 97 S.Ct. 2691, 53 L.Ed.2d 810, distinguished. Pp. 454-468.
(a) A lawyer's solicitation of business through direct, in-person communication with the prospective clients has long been viewed as inconsistent with the profession's ideal of the attorney-client relationship and as posing a significant potential for harm to the prospective client. P. 454.
(b) The State does not lose its power to regulate commercial activity deemed harmful to the public simply because speech is a component of that activity. Pp. 455-456.
(c) A lawyer's procurement of remunerative employment is only marginally affected with First Amendment concerns. While entitled to some constitutional protection, appellant's conduct is subject to regulation in furtherance of important state interests. Pp. 457-459.
(d) In addition to its general interest in protecting consumers and regulating commercial transactions, the State bears a special responsibility for maintaining standards among members of the licensed professions, especially members of the Bar. Protect on of the public from those aspects of solicitation that involve fraud, undue influence, intimidation, overreaching, and other forms of "vexatious conduct" is a legitimate and important state interest. Pp. 400-462.
(e) Because the State's interest is in averting harm by prohibiting solicitation in circumstances where it is likely to occur, the absence of explicit proof or findings of harm or injury to the person solicited is immaterial. The application of the Disciplinary Rules to appellant, who solicited employment for pecuniary gain under circumstances likely to result in the adverse consequences the State seeks to avert, does not offend the Constitution. Pp. 462-468.
48 Ohio St.2d 217, 357 N.E.2d 1097, affirmed.
Eugene Gressman, Chapel Hill, N. C., for appellant.
John R. Welch, Columbus, Ohio, for appellee.
Mr. Justice POWELL delivered the opinion of the Court.
1
In Bates v. State Bar of Arizona, 433 U.S. 350, 97 S.Ct. 2691, 53 L.Ed.2d 810 (1977), this Court held that truthful advertising of "routine" legal services is protected by the First and Fourteenth Amendments against blanket prohibition by a State. The Court expressly reserved the question of the permissible scope of regulation of "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.' " Id., at 366, 97 S.Ct., at 2700. Today we answer part of the question so reserved, and hold that the State—or the Bar acting with state authorization constitutionally may discipline a lawyer for soliciting clients in person, for pecuniary gain, under circumstances likely to pose dangers that the State has a right to prevent.
2
* Appellant, a member of the Ohio Bar, lives in Montville, Ohio. Until recently he practiced law in Montville and Cleveland. On February 13, 1974, while picking up his mail at the Montville Post Office, appellant learned from the postmaster's brother about an automobile accident that had taken place on February 2 in which Carol McClintock, a young woman with whom appellant was casually acquainted, had been injured. Appellant made a telephone call to Ms. McClintock's parents, who informed him that their daughter was in the hospital. Appellant suggested that he might visit Carol in the hospital. Mrs. McClintock assented to the idea, but requested that appellant first stop by at her home.
3
During appellant's visit with the McClintocks, they explained that their daughter had been driving the family automobile on a local road when she was hit by an uninsured motorist. Both Carol and her passenger, Wanda Lou Holbert, were injured and hospitalized. In response to the McClintocks' expression of apprehension that they might be sued by Holbert, appellant explained that Ohio's guest statute would preclude such a suit. When appellant suggested to the McClintocks that they hire a lawyer, Mrs. McClintock retorted that such a decision would be up to Carol, who was 18 years old and would be the beneficiary of a successful claim.
4
Appellant proceeded to the hospital, where he found Carol lying in traction in her room. After a brief conversation about her condition,1 appellant told Carol he would represent her and asked her to sign an agreement. Carol said she would have to discuss the matter with her parents. She did not sign the agreement, but asked appellant to have her parents come to see her.2 Appellant also attempted to see Wanda Lou Holbert, but learned that she had just been released from the hospital. App. 98a. He then departed for another visit with the McClintocks.
5
On his way appellant detoured to the scene of the accident, where he took a set of photographs. He also picked up a tape recorder, which he concealed under his raincoat before arriving at the McClintocks' residence. Once there, he re-examined their automobile insurance policy, discussed with them the law applicable to passengers, and explained the consequences of the fact that the driver who struck Carol's car was an uninsured motorist. Appellant discovered that the McClintocks' insurance policy would provide benefits of up to $12,500 each for Carol and Wanda Lou under an uninsured-motorist clause. Mrs. McClintock acknowledged that both Carol and Wanda Lou could sue for their injuries, but recounted to appellant that "Wanda swore up and down she would not do it." Ibid. The McClintocks also told appellant that Carol had phoned to say that appellant could "go ahead" with her representation. Two days later appellant returned to Carol's hospital room to have her sign a contract, which provided that he would receive one-third of her recovery.
6
In the meantime, appellant obtained Wanda Lou's name and address from the McClintocks after telling them he wanted to ask her some questions about the accident. He then visited Wanda Lou at her home, without having been invited. He again concealed his tape recorder and recorded most of the conversation with Wanda Lou.3 After a brief, unproductive inquiry about the facts of the accident, appellant told Wanda Lou that he was representing Carol and that he had a "little tip" for Wanda Lou: the McClintocks' insurance policy contained an uninsured-motorist clause which might provide her with a recovery of up to $12,500. The young woman, who was 18 years of age and not a high school graduate at the time, replied to appellant's query about whether she was going to file a claim by stating that she really did not understand what was going on. Appellant offered to represent her, also, for a contingent fee of one-third of any recovery, and Wanda Lou stated "O. K."4
7
Wanda's mother attempted to repudiate her daughter's oral assent the following day, when appellant called on the telephone to speak to Wanda. Mrs. Holbert informed appellant that she and her daughter did not want to sue anyone or to have appellant represent them, and that if they decided to sue they would consult their own lawyer. Appellant insisted that Wanda had entered into a binding agreement. A month later Wanda confirmed in writing that she wanted neither to sue nor to be represented by appellant. She requested that appellant notify the insurance company that he was not her lawyer, as the company would not re ease a check to her until he did so.5 Carol also eventually discharged appellant. Although another lawyer represented her in concluding a settlement with the insurance company, she paid appellant one-third of her recovery6 in settlement of his lawsuit against her for breach of contract.7
8
Both Carol McClintock and Wanda Lou Holbert filed complaints against appellant with the Grievance Committee of the Geauga County Bar Association. The County Bar Association referred the grievance to appellee, which filed a formal complaint with the Board of Commissioners on Grievances and Discipline of the Supreme Court of Ohio.8 After a hearing, the Board found that appellant had violated Disciplinary Rules (DR) 2-103(A) and 2-104(A) of the Ohio Code of Professional Responsibility.9 The Board rejected appellant's defense that his conduct was protected under the First and Fourteenth Amendments. The Supreme Court of Ohio adopted the findings of the Board,10 reiterated that appellant's conduct was not constitutionally protected, and increased the sanction of a public reprimand recommended by the Board to indefinite suspension.
9
The decision in Bates was handed down after the conclusion of proceedings in the Ohio Supreme Court. We noted probable jurisdiction in this case to consider the scope of protection of a form of commercial speech, and an aspect of the State's authority to regulate and discipline members of the bar, not considered in Bates. 434 U.S. 814, 98 S.Ct. 49, 54 L.Ed.2d 69 (1977). We now affirm the judgment of the Supreme Court of Ohio.
II
10
The solicitation of business by a lawyer through direct, in-person communication with the prospective client has long been viewed as inconsistent with the profession's ideal of the attorney-client relationship and as posing a significant potential for harm to the prospective client. It has been proscribed by the organized Bar for many years.11 Last Term the Court ruled that the justifications for prohibiting truthful, "restrained" advertising concerning "the availability and terms of routine legal services" are insufficient to override society's interest, safeguarded by the First and Fourteenth Amendments, in assuring the free flow of commercial information. Bates, 433 U.S., at 384, 97 S.Ct., at 2709; see Virginia Pharmacy Board v. Virginia Citizens Consumer Council, 425 U.S. 748, 96 S.Ct. 1817, 48 L.Ed.2d 346 (1976). The balance struck in Bates does not predetermine the outcome in this case. The entitlement of in-person solicitation of clients to the protection of the First Amendment differs from that of the kind of advertising approved in Bates, as does the strength of the State's countervailing interest in prohibition.
11
Appellant contends that his solicitation of the two young women as clients is indistinguishable, for purposes of constitutional analysis, from the advertisement in Bates. Like that advertisement, his meetings with the prospective clients apprised them of their legal rights and of the availability of a lawyer to pursue their claims. According to appellant, such conduct is "presumptively an exercise of his free speech rights" which cannot be curtailed in the absence of proof that it actually caused a specific harm that the State has a compelling interest in preventing. Brief for Appellant 39. But in-person solicitation of professional employment by a lawyer does not stand on a par with truthful advertising about the availability and terms of routine legal services, let alone with forms of speech more traditionally within the concern of the First Amendment.
12
Expression concerning purely commercial transactions has come within the ambit of the Amendment's protection only recently.12 In rejecting the notion that such speech "is wholly outside the protection of the First Amendment," Virginia Pharmacy, supra, at 761, 96 S.Ct., at 1825, we ere careful not to hold "that it is wholly undifferentiable from other forms" of speech. 425 U.S., at 771 n. 24, 96 S.Ct., at 1830. We have not discarded the "commonsense""S § S distinction between speech proposing a commercial transaction, which occurs in an area traditionally subject to government regulation, and other varieties of speech. Ibid. To require a parity of constitutional protection for commercial and noncommercial speech alike could invite dilution, simply by a leveling process, of the force of the Amendment's guarantee with respect to the latter kind of speech. Rather than subject the First Amendment to such a devitalization, we instead have afforded commercial speech a limited measure of protection, commensurate with its subordinate position in the scale of First Amendment values, while allowing modes of regulation that might be impermissible in the realm of noncommercial expression.
13
Moreover, "it has never been deemed an abridgment of freedom of speech or press to make a course of conduct illegal merely because the conduct was in part initiated, evidenced, or carried out by means of language, either spoken, written, or printed." Giboney v. Empire Storage & Ice Co., 336 U.S. 490, 502, 69 S.Ct. 684, 691, 93 L.Ed. 834 (1949). Numerous examples could be cited of communications that are regulated without offending the First Amendment, such as the exchange of information about securities, SEC v. Texas Gulf Sulphur Co., 401 F.2d 833 (CA2 1968), cert. denied, 394 U.S. 976, 89 S.Ct. 1454, 22 L.Ed.2d 756 (1969), corporate proxy statements, Mills v. Electric Auto-Lite Co., 396 U.S. 375, 90 S.Ct. 616, 24 L.Ed.2d 593 (1970), the exchange of price and production information among competitors, American Column & Lumber Co. v. United States, 257 U.S. 377, 42 S.Ct. 114, 66 L.Ed. 284 (1921), and employers' threats of retaliation for the labor activities of employees, NLRB v. Gissel Packing Co., 395 U.S. 575, 618, 89 S.Ct. 1918, 1942, 23 L.Ed.2d 547 (1969). See Paris Adult Theatre I v. Slaton, 413 U.S. 49, 61-62, 93 S.Ct. 2628, 2637, 37 L.Ed.2d 446 (1973). Each of these examples illustrates that the State does not lose its power to regulate commercial activity deemed harmful to the public whenever speech is a component of that activity. Neither Virginia Pharmacy norBates purported to cast doubt on the permissibility of these kinds of commercial regulation.
14
In-person solicitation by a lawyer of remunerative employment is a business transaction in which speech is an essential but subordinate component. While this does not remove the speech from the protection of the First Amendment, as was held in Bates and Virginia Pharmacy, it lowers the level of appropriate judicial scrutiny.
15
As applied in this case, the Disciplinary Rules are said to have limited the communication of two kinds of information. First, appellant's solicitation imparted to Carol McClintock and Wanda Lou Holbert certain information about his availability and the terms of his proposed legal services. In this respect, in-person solicitation serves much the same function as the advertisement at issue in Bates. But there are significant differences as well. Unlike a public advertisement, which simply provides information and leaves the recipient free to act upon it or not, in-person solicitation may exert pressure and often demands an immediate response, without providing an opportunity for comparison or reflection.13 The aim and effect of in-person solicitation may be to provide a one-sided presentation and to encourage speedy and perhaps unin ormed decisionmaking; there is no opportunity for intervention or counter-education by agencies of the Bar, supervisory authorities, or persons close to the solicited individual. The admonition that "the fitting remedy for evil counsels is good ones"14 is of little value when the circumstances provide no opportunity for any remedy at all. In-person solicitation is as likely as not to discourage persons needing counsel from engaging in a critical comparison of the "availability, nature, and prices" of legal services, cf. Bates, 433 U.S., at 364, 97 S.Ct., at 2699, it actually may disserve the individual and societal interest, identified in Bates, in facilitating "informed and reliable decisionmaking." Ibid.15
16
It also is argued that in-person solicitation may provide the solicited individual with information about his or her legal rights and remedies. In this case, appellant gave Wanda Lou a "tip" about the prospect of recovery based on the uninsured-motorist clause in the McClintocks' insurance policy, and he explained that clause and Ohio's guest statute to Carol McClintock's parents. But neither of the Disciplinary Rules here at issue prohibited appellant from communicating information to these young women about their legal rights and the prospects of obtaining a monetary recovery, or from recommending that they obtain counsel. DR 2-104(A) merely prohibited him from using the information as bait with which to obtain an agreement to represent them for a fee. The Rule does not prohibit a lawyer from giving unsolicited legal advice; it proscribes the acceptance of employment resulting from such advice.
17
Appellant does not contend, and on the facts of this case could not contend, that his approaches to the two young women involved political expression or an exercise of associational freedom, "employ[ing] constitutionally privileged means of expression to secure constitutionally guaranteed civil rights." NAACP v. Button, 371 U.S. 415, 442, 83 S.Ct. 328, 343, 9 L.Ed.2d 405 (1963); see In re Primus, 436 U.S. 412, 98 S.Ct. 1893, 56 L.Ed.2d 417. Nor can he compare his solicitation to the mutual assistance in asserting legal rights that was at issue in United Transportation Union v. Michigan Bar, 401 U.S. 576, 91 S.Ct. 1076, 28 L.Ed.2d 339 (1971); Mine Workers v. Illinois Bar Assn., 389 U.S. 217, 88 S.Ct. 353, 19 L.Ed.2d 426 (1967); and Railroad Trainmen v. Virginia Bar, 377 U.S. 1, 84 S.Ct. 1113, 12 L.Ed.2d 89 (1964).16 A lawyer's procurement of remunerative employment is a subject only marginally affected with First Amendment concerns. It falls within the State's proper sphere of economic and professional regulation. See Button, supra, 371 U.S. at 439-443, 83 S.Ct. at 341-343. While entitled to some constitutional protection, appellant's conduct is subject to regulation in furtherance of important state interests.
B
18
The state interests implicated in this case are particularly strong. In addition to its general interest in protecting consumers and regulating commercial transactions, the State bears a special responsibility for maintaining standards among members of the licensed professions. See Williamson v. Lee Optical Co., 348 U.S. 483, 75 S.Ct. 461, 99 L.Ed. 563 (1955); Semler v. Oregon State Bd. of Dental Examiners, 294 U.S. 608, 55 S.Ct. 570, 79 L.Ed. 1086 (1935). "The 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.' " Goldfarb v. Virginia State Bar, 421 U.S. 773, 792, 95 S.Ct. 2004, 2016, 44 L.Ed.2d 572 (1975). While lawyers act in part as "self-employed businessmen," they also act "as trusted agents of their clients, and as assistants to the court in search of a just solution to disputes." Cohen v. Hurley, 366 U.S. 117, 124, 81 S.Ct. 954, 958, 6 L.Ed.2d 156 (1961).
19
As is true with respect to advertising, see Bates, supra, 433 U.S., at 371, 97 S.Ct., at 2702, it appears that the ban on solicitation by lawyers originated as a rule of professional etiquette rather than as a strictly ethical rule. See H. Drinker, Legal Ethics 210-211, and n. 3 (1953). "[T]he rules are based in part on deeply ingrained feelings of tradition, honor and service. Lawyers have for centuries emphasized that the promotion of justice, rather than the earning of fees, is the goal of the profession." Comment, A Critical Analysis of Rules Against Solicitation by Lawyers, 25 U.Chi.L.Rev. 674 (1958) (footnote omitted). But the fact that the original motivation behind the ban on solicitation today might be considered an insufficient justificati n for its perpetuation does not detract from the force of the other interests the ban continues to serve. Cf. McGowan v. Maryland, 366 U.S. 420, 431, 433-435, 444, 81 S.Ct. 1101, 1109-1110, 1114, 6 L.Ed.2d 393 (1961). While the Court in Bates determined that truthful, restrained advertising of the prices of "routine" legal services would not have an adverse effect on the professionalism of lawyers, this was only because it found "the postulated connection between advertising and the erosion of true professionalism to be severely strained." 433 U.S., at 368, 97 S.Ct., at 2701 (emphasis supplied). The Bates Court did not question a State's interest in maintaining high standards among licensed professionals.17 Indeed, to the extent that the ethical standards of lawyers are linked to the service and protection of clients, they do further the goals of "true professionalism."
20
The substantive evils of solicitation have been stated over the years in sweeping terms: stirring up litigation, assertion of fraudulent claims, debasing the legal profession, and potential harm to the solicited client in the form of overreaching, overcharging, underrepresentation, and misrepresentation.18 The American Bar Association, as amicus curiae, defends the rule against solicitation primarily on three broad grounds: It is said that the prohibitions embodied in DR2-103(A) and 2-104(A) serve to reduce the likelihood of overreaching and the exertion of undue influence on lay persons, to protect the privacy of individuals, and to avoid situations where the lawyer's exercise of judgment on behalf of the client will be clouded by his own pecuniary self-interest.19
21
We need not discuss or evaluate each of these interests in detail as appellant has conceded that the State has a legitimate and indeed "compelling" interest in preventing those aspects of solicitation that involve fraud, undue influence, intimidation, overreaching, and other forms of "vexatious conduct." Brief for Appellant 25. We agree that protection of the public from these aspects of solicitation is a legitimate and important state interest.
III
22
Appellant's concession that strong state interests justify regulation to prevent the evils he enumerates would end this case but for his insistence that none of those evils was found to be present in his acts of solicitation. He challenges what he characterizes as the "indiscriminate application" of the Rules to him and thus attacks the validity of DR 2-103(A) and DR 2-104(A) not facially, but as applied to his acts of solicitation.20 And because no allegations or findings were made of the specific wrongs appellant concedes would justify disciplinary action, appellant terms his solicitation "pure," meaning "soliciting and obtaining agre ments from Carol McClintock and Wanda Lou Holbert to represent each of them," without more. Appellant therefore argues that we must decide whether a State may discipline him for solicitation per se without offending the First and Fourteenth Amendments.
23
We agree that the appropriate focus is on appellant's conduct. And, as appellant urges, we mus undertake an independent review of the record to determine whether that conduct was constitutionally protected. Edwards v. South Carolina, 372 U.S. 229, 235, 83 S.Ct. 680, 683, 9 L.Ed.2d 697 (1963).21 But appellant errs in assuming that the constitutional validity of the judgment below depends on proof that his conduct constituted actual overreaching or inflicted some specific injury on Wanda Holbert or Carol McClintock. His assumption flows from the premise that nothing less than actual proved harm to the solicited individual would be a sufficiently important state interest to justify disciplining the attorney who solicits employment in person for pecuniary gain.
24
Appellant's argument misconceives the nature of the State's interest. The Rules prohibiting solicitation are prophylactic measures whose objective is the prevention of harm before it occurs. The Rules were applied in this case to discipline a lawyer for soliciting employment for pecuniary gain under circumstances likely to result in the adverse consequences the State seeks to avert. In such a situation, which is inherently conducive to overreaching and other forms of misconduct, the State has a strong interest in adopting and enforcing rules of conduct designed to protect the public from harmful solicitation by lawyers whom it has licensed.
25
The State's perception of the potential for harm in circumstances such as those presented in this case is well founded.22 The detrimental aspects of face-to-face selling even of ordinary consumer products have been recognized and addressed by the Federal Trade Commission,23 and it hardly need be said that the potential for overreaching is significantly greater when a lawyer, a professional trained in the art of persuasion, personally solicits an unsophisticated, injured, or distressed lay person.24 Such an individual may place his trust in a lawyer, regardless of the latter's qualifications or the individual's actual need for legal representation, simply in response to persuasion under circumstances conducive to uninformed acquiescence. Although it is argued that personal solicitation is valuable because it may apprise a victim of misfortune of his legal rights, the very plight of that person not only makes him more vulnerable to influence but also may make advice all the more intrusive. Thus, under these adverse conditions the overtures of an uninvited lawyer may distress the solicited individual simply because of their obtrusiveness and the invasion of the individual's privacy,25 even when no other harm materalizes.26 Under such circumstances, it is not unreasonable for the State to presume that in-person solicitation by lawyers more often than not will be injurious to the person solicited.27
26
The efficacy of the State's effort to prevent such harm to prospective clients would be substantially diminished if, having proved a solicitation in circumstances like those of this case, the State were required in addition to prove actual injury. Unlike the advertising in Bates, in-person solicitation is not visible or otherwise open to public scrutiny. Often there is no witness other than the lawyer and the lay person whom he has solicited, rendering it difficult or impossible to obtain reliable proof of what actually took place. This would be especially true if the lay person were so distressed at the time of the solicitation that he could not recall specific details at a later date. If appellant's view were sustained, in-person solicitation would be virtually immune to effective oversight and regulation by the State or by the legal profession,28 in contravention of the State's strong interest in regulating members of the Bar in an effective, objective, and self-enforcing manner. It therefore is not unreasonable, or violative of the Constitution, for a State to respond with what in effect is a prophylactic rule.29
27
On the basis of the undisputed facts of record, we conclude that the Disciplinary Rules constitutionally could be applied to appellant. He approached two young accident victims at a time when they were especially incapable of making informed judgments or of assessing and protecting their own interests. He solicited Carol McClintock in a hospital room where she lay in traction and sought out Wanda Lou Holbert on the day she came home from the hospital, knowing from his prior inquiries that she had just been released. Appellant urged his services upon the young women and used the information he had obtained from the McClintocks, and the fact of his agreement with Carol, to induce Wanda to say "O. K." in response to his solicitation. He employed a concealed tape recorder, seemingly to insure that he would have evidence of Wanda's oral assent to the representation. He emphasized that his fee would come out of the recovery, thereby tempting the young women with what sounded like a cost-free and therefore irresistible offer. He refused to withdraw when Mrs. Holbert requested him to do so only a day after the initial meeting between appellant and Wanda Lou and continued to represent himself to the insurance company as Wanda Holbert's lawyer.
28
The court below did not hold that these or other facts were proof of actual harm to Wanda Holbert or Carol McClintock but rested on the conclusion that appellant had engaged in the general misconduct proscribed by the Disciplinary Rules. Under our view of the State's interest in averting harm by prohibiting solicitation in circumstances where it is likely to occur, the absence of explicit proof or findings of harm or injury is immaterial. The facts in this case present a striking example of the potential for overreaching that is inherent in a lawyer's in-person solicitation of professional employment. They also demonstrate the need for prophylactic regulation in furtherance of the State's interest in protecting the lay public. We hold that the application of DR2-103(A) and 2-104(A) to appellant does not offend the Constitution.
29
Accordingly, the judgment of the Supreme Court of Ohio is
30
Affirmed.
31
Mr. Justice BRENNAN took no part in the consideration or decision of this case.
32
Mr. Justice REHNQUIST, concurring in the judgment.
33
For the reasons stated in my dissenting opinion in In re Primus, 436 U.S. 412, 98 S.Ct. 1893, 1909, 56 L.Ed.2d 417, I concur in the affirmance of the judgment of the Supreme Court of Ohio.
34
Mr. Justice MARSHALL, concurring in part and concurring in the judgments.
35
I agree with the majority that the factual circumstances presented by appellant Ohralik's conduct "pose dangers that the State has a right to prevent," ante, at 449, and accordingly that he may constitutionally be disciplined by the disciplinary Board and the Ohio Supreme Court. I further agree that appellant Primus' activity in advising a Medicaid patient who had been sterilized that the American Civil Liberties Union (ACLU) would be willing to represent her without fee in a lawsuit against the doctor and the hospital was constitutionally protected and could not form the basis for disciplinary proceedings. I write separately to highlight what I believe these cases do and do not decide, and to express my concern that disciplinary rules not be utilized to obstruct the distribution of legal services to all those in need of them.
36
* While both of these cases involve applicati n of rules prohibiting attorneys from soliciting business, they could hardly have arisen in more disparate factual settings. The circumstances in which appellant Ohralik initially approached his two clients provide classic examples of "ambulance chasing," fraught with obvious potential for misrepresentation and overreaching. Ohralik, an experienced lawyer in practice for over 25 years, approached two 18-year-old women shortly after they had been in a traumatic car accident. One was in traction in a hospital room; the other had just been released following nearly two weeks of hospital care. Both were in pain and may have been on medication; neither had more than a high school education. Certainly these facts alone would have cautioned hesitation in pressing one's employment on either of these women; any lawyer of ordinary prudence should have carefully considered whether the person was in an appropriate condition to make a decision about legal counsel. See Note, Advertising, Solicitation and the Profession's Duty to Make Legal Counsel Available, 81 Yale L.J. 1181, 1199 (1972).
37
But appellant not only foisted himself upon these clients; he acted in gross disregard for their privacy by covertly recording, without their consent or knowledge, his conversations with Wanda Lou Holbert and Carol McClintock's family. This conduct, which appellant has never disputed, is itself completely inconsistent with an attorney's fiduciary obligation fairly and fully to disclose to clients his activities affecting their interests. See American Bar Association, Code of Professional Responsibility, Ethical Considerations 4-1, 4-5. And appellant's unethical conduct was further compounded by his pursuing Wanda Lou Holbert, when her interests were clearly in potential conflict with those of his prior-retained client, Carol McClintock. See ante, at 451.1
38
What is objectionable about Ohralik's behavior here is not so much that he solicited business for himself, but rather the circumstances in which he performed that solicitation and the means by which he accomplished it. Appropriately, the Court's actual holding in Ohralik, 48 Ohio St.2d 217, 357 N.E.2d 1097 is a limited one: that the solicitation of business, under circumstances—such as those found in this record—presenting substantial dangers of harm to society or the client independent of the solicitation itself, may constitutionally be prohibited by the State. In this much of the Court's opinion in Ohralik, I join fully.
II
39
The facts in Primus, 268 S.C. 259, 233 S.E.2d 301, by contrast, show a "solicitation" of employment in accordance with the highest standards of the legal profession. Appellant in this case was acting not for her own pecuniary benefit, but to promote what she perceived to be the legal rights of persons not likely to appreciate or to be able to vindicate their own rights. The obligation of all lawyers, whether or not members of an association committed to a particular point of view, to see that legal aid is available "where the litigant is in need of assistance, or where important issues are involved in the case," has long been established. In re Ades, 6 F.Supp. 467, 475 (Md.1934); see NAACP v. Button, 371 U.S. 415, 440 n.19, 83 S.Ct. 328, 341, 9 L.Ed.2d 405 (1963). Indeed, Judge Soper in Ades was able to recite numerous instances in which lawyers, including Alexander Hamilton, Luther Martin, and Clarence Darrow, volunteered their services in aid of indigent persons or important public issues. 6 F.Supp., at 475-476. The American Bar Association Code of Professional Responsibility itself recognizes that the "responsibility for providing legal services for those unable to pay ultimately rests upon the individual lawyer," and further states that "[e]very law er, regardless of professional prominence or professional workload, should find time to participate in serving the disadvantaged."2
40
In light of this long tradition of public interest representation by lawyer volunteers, I share my Brother Blackmun's concern with respect to Part VI of the Court's opinion, and believe that the Court has engaged in unnecessary and unfortunate dicta therein. It would be most undesirable to discourage lawyers so many of whom find time to work only for those clients who can pay their fees—from continuing to volunteer their services in appropriate cases. Moreover, it cannot be too strongly emphasized that, where "political expression and association" are involved, 436 U.S., at 438, 98 S.Ct., at 1908, "a State may not, under the guise of prohibiting professional misconduct, ignore constitutional rights." NAACP v. Button, supra, 371 U.S., at 439, 83 S.Ct., at 341. For these reasons, I find particularly troubling the Court's dictum that "a State may insist that lawyers not solicit on behalf of lay organizations that exert control over the actual conduct of any ensuing litigation." 436 U.S., at 439, 98 S.Ct., at 1908. This proposition is by no means self-evident, has never been the actual holding of this Court, and is not put in issue by the facts presently before us. Thus, while I agree with much of the Court's opinion in Primus, I cannot join in the first paragraph of Part VI.
III
41
Our holdings today deal only with situations at opposite poles of the problem of attorney solicitation. In their aftermath, courts and professional associations may reasonably be expected to look to these opinions for guidance in redrafting the disciplinary rules that must apply across a spectrum of activities ranging from clearly protected speech to clearly proscribable conduct. A large number of situations falling between the poles represented by the instant facts will doubtless occur. In considering the wisdom and constitutionality of rules directed at such intermediate situations our fellow members of the Bench and Bar must be guided not only by today's decisions, but also by our decision last Term in Bates v. State Bar of Arizona, 433 U.S. 350, 97 S.Ct. 2691, 53 L.Ed.2d 810 (1977). There, we held that truthful printed advertising by private practitioners regarding the availability and price of certain legal services was protected by the First Amendment. In that context we rejected many of the general justifications for rules applicable to one intermediate situation not directly addressed by the Court today—the commercial but otherwise "benign" solicitation of clients by an attorney.3
42
The state bar associations in both of these cases took the position that solicitation itself was an evil that could lawfully be proscribed. See Brief for Appellee in No. 76-1650, p. 17; Brief for Appellee in No. 77-56, p. 19. While the Court's Primus opinion does suggest that the only justification for non-solicitation rules is their prophylactic value in preventing such evils as actual fraud, overreaching, deception, and misrepresentation, see 436 U.S., at 432-433, 437-438, 98 S.Ct., at 1905, 1908, I think it should be made crystal clear that the State's legitimate interests in this area are limited to prohibiting such substantive evils.
A.
43
Like rules against advertising, rules against solicitation substantially impede the flow of important information to consumers from those most likely to provide it—the practicing members of the Bar. Many persons with legal problems fail to seek relief through the legal system because they are unaware that they have a legal problem, and, even if they "perceive a need," many "do not obtain counsel . . . because of an inability to locate a competent attorney." Bates v. State Bar of Arizona, supra, 433 U.S., at 370, 97 S.Ct., at 2702.4 Notwithstanding the injurious aspects of Ohralik's conduct, even his case illustrates the potentially useful, information-providing aspects of attorney solicitation: Motivated by the desire for pecuniary gain, but informed with the special training and knowledge of an attorney, Ohralik advised both his clients (apparently correctly) that, although they had been injured by an uninsured motorist, they could nonetheless recover on the McClintocks' insurance policy. The provision of such information about legal rights and remedies is an important function, even where the rights and remedies are of a private and commercial nature involving no constitutional or political overtones. See United Mine Workers v. Illinois State Bar Association, 389 U.S. 217, 221-223, 88 S.Ct. 353, 355-356, 19 L.Ed.2d 426 (1967). See also United Transportation Union v. State Bar of Michigan, 401 U.S. 576, 585, 91 S.Ct. 1076, 1082, 28 L.Ed.2d (1971).
44
In view of the similar functions performed by advertising and solicitation by attorneys, I find somewhat disturbing the Court's suggestion in Ohralik that in-person solicitation of business, though entitled to some degree of constitutional protection as "commercial speech," is entitled to less protection under the First Amendment than is "the kind of advertising approved in Bates." Ante, at 455.5 The First Amendment informational interests served by solicitation, whether or not it occurs in a purely commercial context, are substantial, and they are entitled to as much protection as the interests we found to be protected in Bates.
B
45
Not only do prohibitions on solicitation interfere with the free flow of information protected by the First Amendment, but y origin and in practice they operate in a discriminatory manner. As we have noted, these constraints developed as rules of "etiquette" and came to rest on the notion that a lawyer's reputation in his community would spread by word of mouth and bring business to the worthy lawyer.6 Bates v. State Bar of Arizona, supra, 433 U.S., at 371-372, 374-375 n.30, 97 S.Ct., at 2702-2703, 2704; see ante, at 460-461. The social model on which this conception depends is that of the small, cohesive, and homogeneous community; the anachronistic nature of this model has long been recognized. See, e. g., B. Christensen, Lawyers for People of Moderate Means 128-134 (1970); Note, 81 Yale L.J., at 1202-1203; Garrison, The Legal Profession and the Public, 1 Nat. Law. Guild Q. 127-128 (1938). If ever this conception were more generally true, it is now valid only with respect to those persons who move in the relatively elite social and educational circles in which knowledge about legal problems, legal remedies, and lawyers is widely shared. Christensen, supra, at 130; Note, 81 Yale L.J., at 1203. See also Comment, A Critical Analysis of Rules Against Solicitation by Lawyers, 25 U.Chi.L.Rev. 674, 684 (1958).
46
The impact of the nonsolicitation rules, moreover, is discriminatory with respect to the suppliers as well as the consumers of legal services. Just as the persons who suffer most from lack of knowledge about lawyers' availability belong to the less privileged classes of society, see supra, at 473, and n.4, so the disciplinary rules against solicitation fall most heavily on those attorneys engaged in a single-practitioner or small-partnership form of practice7—attorneys who typically earn less than their fellow practitioners in larger, corporate-oriented firms. See Shuchman, Ethics and Legal Ethics: The Propriety of the Canons as a Group Moral Code, 37 Geo.Wash.L.Rev. 244, 255-266, and n.77 (1968); Note, 81 Yale L.J., at 1204-1208; see also Garrison, supra, at 130. Indeed, some scholars have suggested that the rules against solicitation were developed by the professional bar to keep recently immigrated lawyers, who gravitated toward the smaller, personal injury practice, from effective entry into the profession. See J. Auerbach, Unequal Justice 42-62, 126-129 (1976). In light of this history, I am less inclined than the majority appears to be, ante, at 460-461, to weigh favorably in the balance of the State's interests here the longevity of the ban on attorney solicitation.
C
47
By discussing the origin and impact of the nonsolicitation rules, I do not mean to belittle those obviously substantial interests that the State has in regulating attorneys to protect the public from fraud, deceit, misrepresentation, overreaching, undue influence, an invasions of privacy. But where honest, unpressured "commercial" solicitation is involved—a situation not presented in either of these cases—I believe it is open to doubt whether the State's interests are sufficiently compelling to warrant the restriction on the free flow of information which results from a sweeping nonsolicitation rule and against which the First Amendment ordinarily protects. While the State's interest in regulating in-person solicitation may, for reasons explained ante, at 457-458, 460-462, be somewhat greater than its interest in regulating printed advertisements, these concededly legitimate interests might well be served by more specific and less restrictive rules than a total ban on pecuniary solicitation. For example, the Justice Department has suggested that the disciplinary rules be reworded "so as to permit all solicitation and advertising except the kinds that are false, misleading, undignified, or champertous."8
48
To the extent that in-person solicitation of business may constitutionally be subjected to more substantial state regulation as to time, place, and manner than printed advertising of legal services, it is not because such solicitation has "traditionally" been banned, nor because one form of commercial speech is of less value than another under the First Amendment. Rather, any additional restrictions can be justified only to the degree that dangers which the State has a right to prevent are actually presented by conduct attendant to such speech, thus increasing the relative "strength of the State's countervailing interest in prohibition," ante, at 455. As the majority notes, and I wholeheartedly agree, these dangers are amply present in the Ohralik case.
49
Accordingly, while I concur in the judgments of the Court in both of these cases, I join in the Court's opinions only to the extent and with the exceptions noted above.
1
Carol also mentioned that one of the hospital administrators was urging a lawyer upon her. According to his own testimony, appellant replied: "Yes, this certainly is a case that would entice a lawyer. That would interest him a great deal." App. 53a.
2
Despite the fact that appellant maintains that he did not secure an agreement to represent Carol while he was at the hospital, he waited for an opportunity when no visitors were present and then took photographs of Carol in traction. Id., at 129a.
3
Appellant maintains that the tape is a complete reproduction of everything that was said at the Holbert home. Wanda Lou testified that the tape does not contain appellant's introductory remarks to her about his identity as a lawyer, his agreement to represent Carol McClintock, and his availability and willingness to represent Wanda Lou as well. Id., at 19a-21a. Appellant disputed Wanda Lou's testimony but agreed that he did not activate the recorder until he had been admitted to the Holbert home and was seated in the living room with Wanda Lou. Id., at 58a.
4
Appellant told Wanda that she should indicate assent by stating "O.K.," which she did. Appellant later testified: "I would say that most of my clients have essentially that much of a communication. . . . I think most of my clients, that's the way I practice law." Id., at 81a.
In explaining the contingent-fee arrangement, appellant told Wanda Lou that his representation would not "cost [her] anything" because she would receive two-thirds of the recovery if appellant were successful in representing her but would not "have to pay [him] anything" otherwise. Id., at 120a, 125a.
5
The insurance company was willing to pay Wanda Lou for her injuries but would not release the check while appellant claimed, and Wanda Lou denied, that he represented her. Before appellant would "disavow further interest and claim" in Wanda Lou's recovery, he insisted by letter that she first pay him the sum of $2,466.66, which represented one-third of his "conservative" estimate of the worth of her claim. Id., at 26a-27a.
6
Carol recovered the full $12,500 and paid appellant $4,166.66. She testified that she paid the second lawyer $900 as compensation for his services. Id., at 38a, 42a.
7
Appellant represented to the Board of Commissioners at the disciplinary hearing that he would abandon his claim against Wanda Lou Holbert because "the rules say that if a contract has its origin in a controversy, that an ethical question can arise." Tr. 256. Yet in fact appellant filed suit against Wanda for $2,466.66 after the disciplinary hearing. Ohralik v. Holbert, Case No. 76-CV-F-66 (Chardon Mun.Ct., Geauga County, Ohio, filed Feb. 2, 1976). Appellant's suit was dismissed with prejudice on January 27, 1977, after the decision of the Supreme Court of Ohio had been filed.
8
The Board of Commissioners is an agent of the Supreme Court of Ohio. Counsel for appellee stated at oral argument that the Board has "no connection with the Ohio State Bar Association whatsoever." Tr. of Oral Arg. 24.
9
The Ohio Code of Professional Responsibility is promulgated by the Supreme Court of Ohio. The Rules under which appellant was disciplined are modeled on the same-numbered rules in the Code of Professional Responsibility of the American Bar Association. DR 2-103(A) of the ABA Code has since been amended so as not to proscribe forms of public advertising that would be permitted, after Bates, under amended DR 2-101(B).
DR 2-103(A) of the Ohio Code (1970) provides:
"A lawyer shall not recommend employment, as a private practitioner, of himself, his partner, or associate to a non-lawyer who has not sought his advice regarding employment of a lawyer."
DR 2-104(A) (1970) provides in relevant part:
"A lawyer who has given unsolicited advice to a layman that he should obtain counsel or take legal action shall not accept employment resulting from that advice, except that:
"(1) A lawyer may accept employment by a close friend, relative, former client (if the advice is germane to the former employment), or one whom the lawyer reasonably believes to be a client."
10
The Board found that Carol and Wanda Lou "were, if anything, casual acquaintances" of appellant; that appellant initiated the contact with Carol and obtained her consent to handle her claim; that he advised Wanda Lou that he represented Carol, had a "tip" for Wanda, and was prepared to represent her, too. The Board also ound that appellant would not abide by Mrs. Holbert's request to leave Wanda alone, that both young women attempted to discharge appellant, and that appellant sued Carol McClintock.
11
An informal ban on solicitation, like that on advertising, historically was linked to the goals of preventing barratry, champerty, and maintenance. See Note, Advertising, Solicitation and the Profession's Duty to Make Legal Counsel Available, 81 Yale L.J. 1181, 1181-1182, and n. 6 (1972). "The first Code of Professional Ethics in the United States was that formulated and adopted by the Alabama State Bar Association in 1887." H. Drinker, Legal Ethics 23 (1953). The "more stringent prohibitions which form the basis of the current rules" were adopted by the American Bar Association in 1908. Note, 81 Yale L.J., supra, at 1182; see Drinker, supra, at 215. The present Code of Professional Responsibility, containing DR 2-103(A) and 2-104(A), was adopted by the American Bar Association in 1969 after more than four years of study by a special committee of the Association. It is a complete revision of the 1908 Canons, although many of its provisions proscribe conduct traditionally deemed unprofessional and detrimental to the public.
12
See Valentine v. Chrestensen, 316 U.S. 52, 62 S.Ct. 920, 86 L.Ed. 1262 (1942); Pittsburgh Press Co. v. Human Relations Comm'n, 413 U.S. 376, 93 S.Ct. 2553, 37 L.Ed.2d 669 (1973); Bigelow v. Virginia, 421 U.S. 809, 95 S.Ct. 2222, 44 L.Ed.2d 600 (1975); Virginia Pharmacy Board v. Virginia Citizens Consumer Council, 425 U.S. 748, 96 S.Ct. 1817, 48 L.Ed.2d 346 (1976).
13
The immediacy of a particular communication and the imminence of harm are factors that have made certain communications less protected than others. Compare Cohen v. California, 403 U.S. 15, 91 S.Ct. 1780, 29 L.Ed.2d 284 (1971), with Chaplinsky v. New Hampshire, 315 U.S. 568, 62 S.Ct. 766, 86 L.Ed. 1031 (1942); see Brandenburg v. Ohio, 395 U.S. 444, 89 S.Ct. 1827, 23 L.Ed.2d 430 (1969); Schenck v. United States, 249 U.S. 47, 39 S.Ct. 247, 63 L.Ed. 470 (1919).
14
Whitney v. California, 274 U.S. 357, 375, 47 S.Ct. 641, 648, 71 L.Ed. 1095 (1927) (Brandeis, J., concurring).
15
We do not minimize the importance of providing low- and middle-income individuals with adequate information about the availability of legal services. The Bar is aware of this need and innovative measures are being implemented, see Bates, 433 U.S., at 398-399, 97 S.Ct., at 2716 (opinion of POWELL, J.). In addition, the advertising permitted under Bates will provide a further source of such information.
16
In Railroad Trainmen v. Virginia Bar, the Court highlighted he difference between permissible regulation of lawyers and regulation that impinges on the associational rights of union members: "Here what Virginia has sought to halt is not a commercialization of the legal profession which might threaten the moral and ethical fabric of the administration of justice. It is not 'ambulance chasing.' " 377 U.S., at 6, 84 S.Ct., at 1117. The Court implicitly approved of the State's regulation of conduct characterized colloquially as "ambulance chasing." See generally Cohen v. Hurley, 366 U.S. 117, 81 S.Ct. 954, 6 L.Ed.2d 156 (1961); Note, 30 N.Y.U.L.Rev. 182 (1955). Indeed, in ruling that the railroad workers had a constitutional right "to gather together for the lawful purpose of helping and advising one another" in asserting federal statutory rights, 377 U.S., at 5, 84 S.Ct. at 1116, the Court adverted to the kind of problem with which Ohio is concerned in prohibiting solicitation:
"Injured workers or their families often fell prey on the one hand to persuasive claims adjusters eager to gain a quick and cheap settlement for their railroad employers, or on the other to lawyers either not competent to try these lawsuits against the able and experienced railroad counsel or too willing to settle a case for a quick dollar." Id., at 3-4, 84 S.Ct. at 1115.
In recognizing the importance of the State's interest in regulating solicitation of paying clients by lawyers, we are not unmindful of the problem of the related practice, described in Railroad Trainmen, of the solicitation of releases of liability by claims agents or adjusters of prospective defendants or their insurers. Such solicitations frequently occur prior to the employment of counsel by the injured person and during circumstances posing many of the dangers of overreaching we address in this case. Where lay agents or adjusters are involved, these practices for the most part fall outside the scope of regulation by the organized Bar; but releases or settlements so obtained are viewed critically by the courts. See, e. g., Florkiewicz v. Gonzalez, 38 Ill.App.3d 115, 347 N.E.2d 401 (1976); Cady v. Mitchell, 208 Pa.Super. 16, 220 A.2d 373 (1966).
17
In Virginia Pharmacy we stated that it is indisputable that the State has a "strong interest" in maintaining "a high degree of professionalism on the part of licensed pharmacists." 425 U.S., at 766, 96 S.Ct. at 1828. See also National Society of Professional Engineers v. United States, 435 U.S. 679, 696, 98 S.Ct. 1355, 1367, 55 L.Ed.2d 637 (1978).
18
See, e. g., Note, 81 Yale L.J., supra, n. 11, at 1184; Comment, A Critical Analysis of Rules Against Solicitation by Lawyers, 25 U.Chi.L.Rev. 674 (1958).
19
A lawyer who engages in personal solicitation of clients may be inclined to subordinate the best interests of the client to his own pecuniary interests. Even if unintentionally, the lawyer's ability to evaluate the legal merit of his client's claims may falter when the conclusion will affect the lawyer's income. A valid claim might be settled too quickly, or a claim with little merit pursued beyond the point of reason. These lapses of judgment can occur in any legal representation, but we cannot say that the pecuniary motivation of the lawyer who solicits a particular representation does not create special problems of conflict of interest.
20
To the extent that appellant charges that the Rules prohibit solicitation that is constitutionally protected—as he contends his is—as well as solicitation that is unprotected, his challenge could be characterized as a contention that the Rules are overbroad. But appellant does not rely on the overbreadth doctrine under which a person may challenge a statute that infringes protected speech even if the statute constitutionally might be applied to him. See, e. g., Gooding v. Wilson, 405 U.S. 518, 520-521, 92 S.Ct. 1103, 1105, 31 L.Ed.2d 408 (1972); United States v. Robel, 389 U.S. 258, 265-266, 88 S.Ct. 419, 424, 19 L.Ed.2d 508 (1967); Dombrowski v. Pfister, 380 U.S. 479, 491, 85 S.Ct. 1116, 1123, 14 L.Ed.2d 22 (1965); NAACP v. Button, 371 U.S. 415, 432-433, 83 S.Ct. 328, 337-338, 9 L.Ed.2d 405 (1963); Kunz v. New York, 340 U.S. 290, 71 S.Ct. 312, 95 L.Ed. 280 (1951). See generally Note, The First Amendment Overbreadth Doctrine, 83 Harv.L.Rev. 844 (1970). On the contrary, appellant maintains that DR 2-103(A) and 2-104(A) could not constitutionally be applied to him.
Nor could appellant make a successful overbreadth argument in view of the Court's observation in Bates that "the justification for the application of overbreadth analysis applies weakly, if at all, in the ordinary commercial context." 433 U.S., at 380, 97 S.Ct. at 2707. Commercial speech is not as likely to be deterred as noncommercial speech, and therefore does not require the added protection afforded by the overbreadth approach.
Even if the commercial speaker could mount an overbreadth attack, "where conduct and not merely speech is involved, . . . the overbreadth
of a statute 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 (1973). The Disciplinary Rules here at issue are addressed to the problem of a particular kind of commercial solicitation and are applied in the main in that context. Indeed, the Bar historically has characterized impermissible solicitation as that undertaken for purposes of the attorney's pecuniary gain and as not including offers of service to indigents without charge. Compare American Bar Association, Committee on Professional Ethics and Grievances, Formal Opinion 148 (1935), with Formal Opinion 169 (1937); see H. Drinker, Legal Ethics 219 (1953). See also NAACP v. Button, supra, 371 U.S., at 440, n. 19, 83 S.Ct., at 341. Solicitation has been defined in terms of the presence of the pecuniary motivation of the lawyer, see People ex rel. Chicago Bar Assn. v. Edelson, 313 Ill. 601, 610-611, 145 N.E. 246, 249 (1924); Note, Advertising, Solicitation and Legal Ethics, 7 Vand.L.Rev. 677, 687 (1954), and ABA Formal Opinion 148 states that the ban on solicitation "was never aimed at a situation . . . in which a group of lawyers announce that they are willing to devote some of their time and energy to the interests of indigent citizens whose constitutional rights are believed to be infringed." We hold today in Primus that a lawyer who engages in solicitation as a form of protected political association generally may not be disciplined without proof of actual wrongdoing that the State constitutionally may proscribe. As these Disciplinary Rules thus can be expected to operate primarily if not exclusively in the context of commercial activity by lawyers, the potential effect on protected, noncommercial speech is speculative. See Broadrick, supra, 413 U.S., at 612, 615, 93 S.Ct., at 2915, 2917. See also Note, 83 Harv.L.Rev., supra, at 882-884, 908-910.
21
See also Time, Inc. v. Pape, 401 U.S. 279, 284, 91 S.Ct. 633, 636 (1971); Jacobellis v. Ohio, 378 U.S. 184, 189, 84 S.Ct. 1676, 1678, 12 L.Ed.2d 793 (1964); New York Times Co. v. Sullivan, 376 U.S. 254, 285, 84 S.Ct. 710, 728, 11 L.Ed.2d 686 (1964); Napue v. Illinois, 360 U.S. 264, 271-272, 79 S.Ct. 1173, 1178, 3 L.Ed.2d 1217 (1959).
22
Although our concern in this case is with solicitation by the lawyer himself, solicitation by a lawyer's agents or runners would present similar problems.
23
The Federal Trade Commission has identified and sought to regulate the abuses inherent in the direct-selling industry. See 37 Fed.Reg. 22934, 22937 (1972). See also Project: The Direct Selling Industry: An Empirical Study, 16 UCLA L.Rev. 883, 895-922 (1969). Quoted in the FTC report is an observation by the National Consumer Law Center that " '[t]he door to door selling technique strips from the consumer one of the fundamentals in his role as an informed purchaser, the decision as to when, where, and how he will present himself to the marketplace . . . .' " 37 Fed.Reg., at 22939 n. 44.
24
Most lay persons are unfamiliar with the law, with how legal services ormally are procured, and with typical arrangements between lawyer and client. To be sure, the same might be said about the lay person who seeks out a lawyer for the first time. But the critical distinction is that in the latter situation the prospective client has made an initial choice of a lawyer at least for purposes of a consultation; has chosen the time to seek legal advice; has had a prior opportunity to confer with family, friends, or a public or private referral agency; and has chosen whether to consult with the lawyer alone or accompanied.
25
Unlike the reader of an advertisement, who can "effectively avoid further bombardment of [his] sensibilities simply by averting [his] eyes," Cohen v. California, 403 U.S., at 21, 91 S.Ct., at 1786, quoted in Erznoznik v. Jacksonville, 422 U.S. 205, 211, 95 S.Ct. 2268, 2273, 45 L.Ed.2d 125 (1975); Lehman v. Shaker Heights, 418 U.S. 298, 320, 94 S.Ct. 2714, 2725, 41 L.Ed.2d 770 (1974) (BRENNAN, J., dissenting), the target of the solicitation may have difficulty avoiding being importuned and distressed even if the lawyer seeking employment is entirely well meaning. Cf. Breard v. Alexandria, 341 U.S. 622, 71 S.Ct. 920, 95 L.Ed. 1233 (1951).
26
By allowing a lawyer to accept employment after he has given unsolicited legal advice to a close friend, relative, or former client, DR 2-104(A)(1) recognizes an exception for activity that is not likely to present these problems.
27
Indeed, appellant concedes that certain types of in-person solicitation are inherently injurious. His brief states that "solicitation that is superimposed upon the physically or mentally ill patient, or upon an accident victim unable to manage his legal affairs, obviously injures the best interests of such a client." Brief for Appellant 32.
28
The problems of affording adequate protection of the public against the potential for overreaching evidenced by this case should not be minimized. The organized bars, operating under codes approved by the highest state courts pursuant to statutory authority, have the primary responsibility for assuring compliance with professional ethics and standards by the more than 400,000 lawyers licensed by the States. The means employed usually are disciplinary proceedings initially conducted by voluntary bar committees, subject to judicial review. A study of the problems of enforcing the codes of professional conduct, chaired by then retired Justice Tom C. Clark, reveals the difficulties and complexities—and the inadequacy—of disciplinary enforcement. See ABA, Special Committee on Evaluation of Disciplinary Enforcement, Problems and Recommendations in Disciplinary Enforcement (1970). No problem is more intractable than that of prescribing and enforcing standards with respect to in-person private solicitation.
29
Even commentators who have advocated modification of the disciplinar rules to allow some solicitation recognize the clear potential for unethical conduct or exploitation of lay persons in certain contexts and recommend that solicitation under such circumstances continue to be proscribed. Note, 81 Yale L.J., supra, n. 11, at 1199.
1
Appellant's advice to Wanda Lou Holbert that she could get money from the McClintocks' insurance policy created the risk that the financial interests of his two clients would come into conflict.
2
EC 2-25. The Disciplinary Rules of the Code, moreover, while generally forbidding a lawyer from "knowingly assist[ing] a person or organization that furnishes or pays for legal services to others to promote the use of his services," makes an exception for attorney participation in, inter alia, legal aid or public defender offices. DR2-103(D)(1).
3
By "benign" commercial solicitation, I mean solicitation by advice and information that is truthful and that is presented in a noncoercive, nondeceitful, and dignified manner to a potential client who is emotionally and physically capable of making a rational decision either to accept or reject the representation with respect to a legal claim or matter that is not frivolous. Cf. Louisville Bar Assn. v. W. Hubbard, 282 Ky. 734, 739, 139 S.W.2d 773, 775 (1940) (attorney may personally solicit business "where he does not take advantage of the ignorance, or weakness, or suffering, or human frailties of the expected clients and where no inducements are offered them"); see also Petition of R. Hubbard, 267 S.W.2d 743, 744 (Ky.1954).
4
As we noted only last Term in Bates, there appears to be substantial underutilization of lawyers' services. 433 U.S., at 370-371, nn. 22, 23, 97 S.Ct., at 2702; see 4 ABA Alternatives 1 (July 1977), summarizing report of ABA Special Committee to Survey Legal Needs. This problem may be especially acute among the middle-class majority of this country, persons too affluent to qualify for government-funded legal services but not wealthy enough to afford the fees of the major law firms that serve mostly corporate clients. See generally B. Christensen, Lawyers for People of Moderate Means (1970).
5
The Court may mean simply that conducting solicitation in person presents somewhat greater dangers that the State may permissibly seek to avoid. See infra, at 476-477. But if instead the Court means that different forms of "commercial speech" are generally to be subjected to differing levels of First Amendment scrutiny, I cannot agree. The Court also states that "in-person solicitation of professional employment by a lawyer does not stand on a par with truthful advertising about the availability and terms of routine legal services." Ante, at 455. The relevant comparison, however, at the least is between truthful in-person solicitation of employment and truthful advertising.
6
The Court's opinion in Bates persuasively demonstrated the lack of basis for concluding that advertising by attorneys would demean the profession, increase the incidence of fraudulent or deceptive behavior by attorneys, or otherwise harm the consumers of legal services. It is interesting in this connection to note that for many years even those in favor of the rules against solicitation by attorneys agreed that solicitation was not "malum in se." H. Drinker, Legal Ethics 211 n.3 (1953). Dr. Johnson, a venerable commentator on mores of all sorts, expressed well the prevailing view of the profession when he stated: "I should not solicit employment as a lawyer—not because I should think it wrong, but because I should disdain it." Quoted in R. Pound, The Lawyer from Antiquity to Modern Times 12 n.3 (1953). As Bates made clear, "disdain" is an inadequate basis on which to restrict the flow of information otherwise protected by the First Amendment.
7
According to the American Bar Foundation, 72.7% of all lawyers were in private practice in 1970; of these, over half practiced as individual practitioners. The 1971 Lawyer Statistical Report 10 (1972).
8
Remarks of L. Bernstein, Chief, Special Litigation Section, Antitrust Division, Department of Justice, reprinted in 5 CCH Trade Reg. Rep. ¶ 50,197 (1974) (emphasis added). In addition, at least one bar association has recently considered proposals to eliminate its current prohibitions on solicitation and instead to prohibit false and misleading statements and the solicitation of clients who have given adequate notice that they do not want to hear from the lawyer. 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, reproduced in App. B to Brief for United States as Amicus Curiae in Bates v. State Bar of Arizona, 433 U.S. 350, 97 S.Ct. 2691, 53 L.Ed.2d 810.
| 56
|
436 U.S. 412
98 S.Ct. 1893
56 L.Ed.2d 417
In re Edna Smith PRIMUS, Appellant.
No. 77-56.
Argued Jan. 16, 1978.
Decided May 30, 1978.
Syllabus
Appellant, a practicing lawyer in South Carolina who was also a cooperating lawyer with a branch of the American Civil Liberties Union (ACLU), after advising a gathering of women of their legal rights resulting from their having been sterilized as a condition of receiving public medical assistance, informed one of the women in a subsequent letter that free legal assistance was available from the ACLU. Thereafter, the disciplinary Board of the South Carolina Supreme Court charged and determined that appellant, by sending such letter, had engaged in soliciting a client in violation of certain Disciplinary Rules of the State Supreme Court, and issued a private reprimand. The court adopted the Board's findings and increased the sanction to a public reprimand. Held: South Carolina's application of its Disciplinary Rules to appellant's solicitation by letter on the ACLU's behalf violates the First and Fourteenth Amendments. NAACP v. Button, 371 U.S. 415, 83 S.Ct. 328, 9 L.Ed.2d 405, followed; Ohralik v. Ohio Bar Assn., 436 U.S. 447, 98 S.Ct. 1912, 56 L.Ed.2d 417, distinguished. Pp. 421-439.
(a) Solicitation of prospective litigants by nonprofit organizations that engage in litigation as "a form of political expression" and "political association" constitutes expressive and associational conduct entitled to First Amendment protection, as to which government may regulate only "with narrow specificity," Button, supra, at 429, 431, 433, 83 S.Ct. at 335, 337, 338. Pp. 422-425.
(b) Subsequent decisions have interpreted Button as establishing the principle that "collective activity undertaken to obtain meaningful access to the courts is a fundamental right within the protection of the First Amendment," United Transportation Union v. Michigan Bar, 401 U.S. 576, 585, 91 S.Ct. 1076, 1082, 28 L.Ed.2d 339 and have required that "broad rules framed to protect the public and to preserve respect for the administration of justice" must not work a significant impairment of "the value of associational freedoms," Mine Workers v. Illinois Bar Assn., 389 U.S. 217, 222, 88 S.Ct. 353, 356, 19 L.Ed.2d 426. P. 426.
(c) Appellant's activity in this case comes within the generous zone of protection reserved for associational freedoms because she engaged in solicitation by mail on behalf of a bona fide, nonprofit organization that pursues litigation as a vehicle for effective political expression and association, as well as a means of communicating useful information to the public. There is nothing in the record to suggest that the ACLU or its South Carolina affiliate is an organization dedicated exclusively to providing legal services, or a group of attorneys that exists for the purpose of financial gain through he recovery of counsel fees, or a mere sham to evade a valid state rule against solicitation for pecuniary gain. Pp. 426-432.
(d) The Disciplinary Rules in question, which sweep broadly, rather than regulating with the degree of precision required in the context of political expression and association, have a distinct potential for dampening the kind of "cooperative activity that would make advocacy of litigation meaningful," Button, supra, 371 U.S. at 438, 83 S.Ct. at 340, as well as for permitting discretionary enforcement against unpopular causes. P. 433.
(e) Although a showing of potential danger may suffice in the context of in-person solicitation for pecuniary gain under the decision today in Ohralik, appellant may not be disciplined unless her activity in fact involved the type of misconduct at which South Carolina's broad prohibition is said to be directed. P. 434.
(f) The record does not support appellee's contention that undue influence, overreaching, misrepresentation, invasion of privacy, conflict of interest, or lay interference actually occurred in this case. And the State's interests in preventing the "stirring up" of frivolous or vexatious litigation and minimizing commercialization of the legal profession offer no further justification for the discipline administered to appellant. Pp. 434-437.
(g) Nothing in this decision should be read to foreclose carefully tailored regulation that does not abridge unnecessarily the associational freedom of nonprofit organizations, or their members, having characteristics like those of the ACLU. Pp. 438-439.
268 S.C. 259, 233 S.E.2d 301, reversed.
Ray P. McClain, Charleston, S. C., for appellant.
Richard B. Kale, Jr., Columbia, S. C., for appellee.
Mr. Justice POWELL delivered the opinion of the Court.
1
We consider on this appeal whether a State may punish a member of its Bar who, seeking to further political and ideological goals through associational activity, including litigation, advises a lay person of her legal rights and discloses in a subsequent letter that free legal assistance is available from a nonprofit organization with which the lawyer and her associates are affiliated. Appellant, a member of the Bar of South Carolina, received a public reprimand for writing such a letter. The appeal is opposed by the State Attorney General, on behalf of the Board of Commissioners on Grievances and Discipline of the Supreme Court of South Carolina. As this appeal presents a substantial question under the First and Fourteenth Amendments, as interpreted in NAACP v. Button, 371 U.S. 415, 83 S.Ct. 328, 9 L.Ed.2d 405 (1963), we noted probable jurisdiction.
2
* Appellant, Edna Smith Primus, is a lawyer practicing in Columbia, S. C. During the period in question, she was associated with the "Carolina Community Law Firm,"1 and was an officer of and cooperating lawyer with the Columbia branch of the American Civil Liberties Union (ACLU).2 She re ceived no compensation for her work on behalf of the ACLU,3 but was paid a retainer as a legal consultant for the South Carolina Council on Human Relations (Council), a nonprofit organization with offices in Columbia.
3
During the summer of 1973, local and national newspapers reported that pregnant mothers on public assistance in Aiken County, S. C., were being sterilized or threatened with sterilization as a condition of the continued receipt of medical assistance under the Medicaid program.4 Concerned by this development, Gary Allen, an Aiken businessman and officer of a local organization serving indigents, called the Council requesting that one of its representatives come to Aiken to address some of the women who had been sterilized. At the Council's behest, appellant, who had not known Allen previously, called him and arranged a meeting in his office in July 1973. Among those attending was Mary Etta Williams, who had been sterilized by Dr. Clovis H. Pierce after the birth of her third child. Williams and her grandmother attended the meeting because Allen, an old family friend, had invited them and because Williams wanted "[t]o see what it was all about . . . ." App. 41-42. At the meeting, appellant advised those present, including Williams and the other women who had been sterilized by Dr. Pierce, of their legal rights and suggested the possibility of a lawsuit.
4
Early in August 1973 the ACLU informed appellant that it was willing to provide representation for Aiken mothers who had been sterilized.5 Appellant testified that after being advised by Allen that Williams wished to institute suit against Dr. Pierce, she decided to inform Williams of the ACLU's offer of free legal representation. Shortly after receiving appellant's letter, dated August 30, 19736—the centerpiece of this litigation—Williams visited Dr. Pierce to discuss the progress of her third child who was ill. At the doctor's office, she encountered his lawyer and at the latter's request signed a release of liability in the doctor's favor. Williams showed appellant's letter to the doctor and his lawyer, and they retained a copy. She then called appellant from the doctor's office and announced her intention not to sue. There was no further communication between appellant and Williams.
5
On October 9, 1974, the Secretary of the Board of Commissioners on Grievances and Discipline of the Supreme Court of South Carolina (Board) filed a formal complaint with the Board, charging that appellant had engaged in "solicitation in violation of the Canons of Ethics" by sending the August 30, 1973, letter to Williams. App. 1-2. Appellant denied any unethical solicitation and asserted, inter alia, that her conduct was protected by the First and Fourteenth Amendments and by Canon 2 of the Code of Professional Responsibility of the American Bar Association (ABA). The complaint was heard by a panel of the Board on March 20, 1975. The State's evidence consisted of the letter, the testimony of Williams,7 and a copy of the summons and complaint in the action instituted against Dr. Pierce and various state officials, Walker v. Pierce, Civ. No. 74-475 (SC, July 28, 1975), aff'd in part and rev'd in part, 560 F.2d 609 (CA4 1977), cert. denied, 434 U.S. 1075, 98 S.Ct. 1266, 55 L.Ed.2d 782 (1978).8 Following denial of appellant's motion to dismiss, App. 77-82, she testified in her own behalf and called Allen, a number of ACLU representatives, and several character witnesses.9
6
The panel filed a report recommending that appellant be found guilty of soliciting a client on behalf of the ACLU, in violation of Disciplinary Rules (DR) 2-103(D)(5)(a) and (c)10 and 2-104(A)(5)11 of the Supreme Court of South Carolina,12 and that a private reprimand be issued. It noted that "[t]he evidence is inconclusive as to whether [appellant] solicited Mrs. Williams on her own behalf, but she did solicit Mrs. Williams on behalf of the ACLU, which would benefit financially in the event of successful prosecution of the suit for money damages." The panel determined that appellant violated DR 2-103(D)(5) "by attempting to solicit a client for a non-profit organization which, as its primary purpose, renders legal services, where respondent's associate is a staff counsel for the non-profit organization." Appellant also was found to have violated DR 2-104(A)(5) because she solicited Williams, after providing unsolicited legal advice, to join in a prospective class action for damages and other relief that was to be brought by the ACLU.
7
After a hearing on January 9, 1976, the full Board approved the panel report and administered a private reprimand. On March 17, 1977, the Supreme Court of South Carolina entered an order which adopted verbatim the findings and conclusions of the panel report and increased the sanction, sua sponte, to a public reprimand. 268 S.C. 259, 233 S.E.2d 301.
8
On July 9, 1977, appellant filed a jurisdictional statement and this appeal was docketed. We noted probable jurisdiction on October 3, 1977, sub nom. In re Smith, 434 U.S. 814, 98 S.Ct. 49, 54 L.Ed.2d 69. We now reverse.
II
9
This appeal concerns the tension between contending values of considerable moment to the legal profession and to society. Relying upon NAACP v. Button, 371 U.S. 415, 83 S.Ct. 3289, 9 L.Ed.2d 405 (1963), and its progeny, appellant maintains that her activity involved constitutionally protected expression and association. In her view, South Carolina has not shown that the discipline meted out to her advances a subordinating state interest in a manner that avoids unnecessary abridgment of First Amendment freedoms.13 Appellee counters that appellant's letter to Williams falls outside of the protection of Button, and that South Carolina acted lawfully in punishing a member of its Bar for solicitation.
10
The States enjoy broad power to regulate "the practice of professions within their boundaries," and "[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.' " Goldfarb v. Virginia State Bar, 421 U.S. 773, 792, 95 S.Ct. 2004, 2016, 44 L.Ed.2d 572 (1975). For exa ple, we decide today in Ohralik v. Ohio State Bar Assn., 436 U.S. 447, 98 S.Ct. 1912, 56 L.Ed.2d 444, that the States may vindicate legitimate regulatory interests through proscription, in certain circumstances, of in-person solicitation by lawyers who seek to communicate purely commercial offers of legal assistance to lay persons.
11
Unlike the situation in Ohralik, however, appellant's act of solicitation took the form of a letter to a woman with whom appellant had discussed the possibility of seeking redress for an allegedly unconstitutional sterilization. This was not in-person solicitation for pecuniary gain. Appellant was communicating an offer of free assistance by attorneys associated with the ACLU, not an offer predicated on entitlement to a share of any monetary recovery. And her actions were undertaken to express personal political beliefs and to advance the civil-liberties objectives of the ACLU, rather than to derive financial gain. The question presented in this case is whether, in light of the values protected by the First and Fourteenth Amendments, these differences materially affect the scope of state regulation of the conduct of lawyers.
III
12
In NAACP v. Button, supra, the Supreme Court of Appeals of Virginia had held that the activities of members and staff attorneys of the National Association for the Advancement of Colored People (NAACP) and its affiliate, the Virginia State Conference of NAACP Branches (Conference), constituted "solicitation of legal business" in violation of state law. NAACP v. Harrison, 202 Va. 142, 116 S.E.2d 55 (1960). Although the NAACP representatives and staff attorneys had "a right to peaceably assemble with the members of the branches and other groups to discuss with them and advise them relative to their legal rights in matters concerning racial segregation," the court found no constitutional protection for efforts to "solicit prospective litigants to authorize the filing of suits" by NAACP-compensated attorneys. Id., at 159, 116 S.E.2d, at 68-69.
13
This Court reversed: "We hold that the activities of the NAACP, its affiliates and legal staff shown on this record are modes of expression and association protected by the First and Fourteenth Amendments which Virginia may not prohibit, under its power to regulate the legal profession, as improper solicitation of legal business violative of [state law] and the Canons of Professional Ethics." 371 U.S., at 428-429, 83 S.Ct., at 335. The solicitation of prospective litigants,14 many of whom were not members of the NAACP or the Conference, for the purpose of furthering the civil-rights objectives of the organization and its members was held to come within the right " 'to engage in association for the advancement of beliefs and ideas.' " Id., at 430, 83 S.Ct., at 336, quoting NAACP v. Alabama, 357 U.S. 449, 460, 78 S.Ct. 1163, 1170, 2 L.Ed.2d 1488 (1958).
14
Since the Virginia statute sought to regulate expressive and associational conduct at the core of the First Amendment's protective ambit, the Button Court insisted that "government may regulate in the area only with narrow specificity." 371 U.S., at 433, 83 S.Ct., at 338. The Attorney General of Virginia had argued that the law merely (i) proscribed control of the actual litigation by the NAACP after it was instituted, ibid., and (ii) sought to prevent the evils traditionally associated with common-law maintenance, champerty, and barratry, id., at 438, 83 S.Ct., at 340.15 The Court found inadequate the first justification because of an absence of evidence of NAACP interference with the actual conduct of litigation, or neglect or harassment of clients, and because the statute, as construed, was not drawn narrowly to advance the asserted goal. It rejected the analogy to the common-law offenses because of an absence of proof that malicious intent or the prospect of pecuniary gain inspired the NAACP-sponsored litigation. It also found a lack of proof that a serious danger of conflict of interest marked the relationship between the NAACP and its member and nonmember Negro litigants. The Court concluded that "although the [NAACP] has amply shown that its activities fall within the First Amendment's protections, the State has failed to advance any substantial regulatory interest in the form of substantive evils flowing from [the NAACP's] activities, which can justify the broad prohibitions which it has imposed." Id., at 444, 83 S.Ct., at 343.16
15
Subsequent decisions have interpreted Button as establishing the principle that "collective activity undertaken to obtain meaningful access to the courts is a fundamental right within the protection of the First Amendment." United Transportation Union v. Michigan Bar, 401 U.S. 576, 585, 91 S.Ct. 1076, 1082, 28 L.Ed.2d 339 (1971). See Bates v. State Bar of Arizona, 433 U.S. 350, 376 n. 32, 97 S.Ct. 2691, 2705, 53 L.Ed.2d 810 (1977). The Court has held that the First and Fourteenth Amendments prevent state proscription of a range of solicitation activities by labor unions seeking to provide low-cost, effective legal representation to their members. See Railroad Trainmen v. Virginia Bar, 377 U.S. 1, 84 S.Ct. 1113, 12 L.Ed.2d 89 (1964); Mine Workers v. Illinois Bar Assn., 389 U.S. 217, 88 S.Ct. 353, 19 L.Ed.2d 426 (1967); United Transportation Union v. Michigan Bar, supra. And "lawyers accepting employment under [such plans] have a like protection which the State cannot abridge." Railroad Trainmen, supra, 377 U.S., at 8, 84 S.Ct., at 1118. Without denying the power of the State to take measures to correct the substantive evils of undue influence, overreaching, misrepresentation, invasion of privacy, conflict of interest, and lay interference that potentially are present in solicitation of prospective clients by lawyers, this Court has required that "broad rules framed to protect the public and to preserve respect for the administration of justice" must not work a significant impairment of "the value of associational freedoms." Mine Workers, supra, 389 U.S. at 222, 88 S.Ct. at 356.
IV
16
We turn now to the question whether appellant's conduct implicates interests of free expression and association sufficient to justify the level of protection recognized in Button and subsequent cases.17 The Supreme Court of South Carolina found appellant to have engaged in unethical conduct because she " 'solicit[ed] a client for a non-profit organization, which, as its primary purpose, renders legal services, where respondent's associate is a staff counsel for the non-profit organization.' " 268 S.C., at 269, 233 S.E.2d, at 306.18 It rejected appellant's First Amendment defenses by distinguishing Button from the case before it. Whereas the NAACP in that case was primarily a " 'political' " organization that used " 'litigation as an adjunct to the overriding political aims of the organization,' " the ACLU " 'has as one of its primary purposes the rendition of legal services.' " Id., at 268, 269, 233 S.E.2d, at 305, 306. The court also intimated that the ACLU's policy of requesting an award of counsel fees indicated that the organization might " 'benefit financially in the event of successful prosecution of the suit for money damages.' " Id., at 263, 233 S.E.2d, at 303.
17
Although the disciplinary panel did not permit full factual development of the aims and practices of the ACLU, see n. 9, supra, the record does not support the state court's effort to draw a meaningful distinction between the ACLU and the NAACP. From all that appears, the ACLU and its local chapters, much like the NAACP and its local affiliates in Button, "[engage] in extensive educational and lobbying activities" and "also [devote] much of [their] funds and energies to an extensive program of assisting certain kinds of litigation on behalf of [their] declared purposes." 371 U.S., at 419-420, 83 S.Ct., at 331. See App. 177-178; n. 2, supra. The court below acknowledged that " 'the ACLU has only entered cases in which substantial civil liberties questions are involved . . . .' " 268 S.C., at 263, 233 S.E.2d, at 303. See Button, 371 U.S., at 440 n. 19, 83 S.Ct., at 341. It has engaged in the defense of unpopular causes and unpopular defendants19 and has represented individuals in litigation that has defined the scope of constitutional protection in areas such as political dissent, juvenile rights, prisoners' rights, military law, amnesty, and privacy. See generally Rabin, Lawyers for Social Change: Perspectives on Public Interest Law, 28 Stan.L.Rev. 207, 210-214 (1976). For the ACLU, as for the NAACP, "litigation is not a technique of resolving private differences"; it is "a form of political expression" and "political association." 371 U.S., at 429, 431, 83 S.Ct., at 335, 337.20
18
We find equally unpersuasive any suggestion that the level of constitutional scrutiny in this case should be lowered because of a possible benefit to the ACLU. The discipline administered to appellant was premised solely on the possibility of financial benefit to the organization, rather than any possibility of pecuniary gain to herself, her associates, or the lawyers representing the plaintiffs in the Walker v. Pierce litigation.21 It is conceded that appellant received no compensation for a y of the activities in question. It is also undisputed that neither the ACLU nor any lawyer associated with it would have shared in any monetary recovery by the plaintiffs in Walker v. Pierce. If Williams had elected to bring suit, and had been represented by staff lawyers for the ACLU, the situation would have been similar to that in Button, where the lawyers for the NAACP were "organized as a staff and paid by" that organization. 371 U.S., at 434, 83 S.Ct., at 338, see id., at 457, 83 S.Ct., at 350 (Harlan, J., dissenting); Mine Workers v. Illinois Bar Assn., 389 U.S., at 222-223, 88 S.Ct., at 356; n. 16, supra.22
19
Contrary to appellee's suggestion, the ACLU's policy of requesting an award of counsel fees does not take this case outside the protection of Button. Although the Court in Button did not consider whether the NAACP seeks counsel fees, such requests are often made both by that organization, see, e. g., NAACP v. Allen, 493 F.2d 614, 622 (CA5 1974); Boston Chapter, NAACP, Inc. v. Beecher, 371 F.Supp. 507, 523 (D.C.Mass.), aff'd, 504 F.2d 1017 (CA1 1974), cert. denied, 421 U.S. 910, 95 S.Ct. 1561, 43 L.Ed.2d 775 (1975), and by the NAACP Legal Defense Fund, Inc., see, e. g., Bradley v. Richmond School Board, 416 U.S. 696, 94 S.Ct. 2006, 40 L.Ed.2d 476 (1974); Reynolds v. Coomey, 567 F.2d 1166, 1167 (CA1 1978). In any event, in a case of this kind there are differences between counsel fees awarded by a court and traditional fee-paying arrangements which militate against a presumption that ACLU sponsorship of litigation is motivated by considerations of pecuniary gain rather than by its widely recognized goal of vindicating civil liberties. Counsel fees are awarded in the discretion of the court; awards are not drawn from the plaintiff's recovery, and are usually premised on a successful outcome; and the amounts awarded often may not correspond to fees generally obtainable in private litigation. Moreover, under prevailing law during the events in question, an award of counsel fees in federal litigation was available only in limited circumstances.23 And even if there had been an award during the period in question, it would have gone to the central fund of the ACLU.24 Although such benefit to the organization may increase with the maintenance of successful litigation, the same situation obtains with voluntary contributions and foundation support, which also may rise with ACLU victories in important areas of the law. That possibility, standing alone, offers no basis for equating the work of lawyers associated with the ACLU or the NAACP with that of a group that exists for the primary purpose of financial gain through the recovery of counsel fees. See n. 20, supra.25
20
Appellant's letter of August 30, 1973, to Mrs. Williams thus comes within the generous zone of First Amendment protection reserved for associational freedoms. The ACLU engages in litigation as a vehicle for effective political expression and association, as well as a means of communicating useful information to the public. See n. 32, infra; cf. Bates v. State Bar of Arizona, 433 U.S., at 364, 97 S.Ct., at 2699; Virginia Pharmacy Board v. Virginia Citizens Consumer Council, 425 U.S. 748, 779-780, 96 S.Ct. 1817, 1834, 48 L.Ed.2d 346 (1976) (STEWART, J., concurring). As Button indicates, and as appellant offered to prove at the disciplinary hearing, see n. 9, supra, the efficacy of litigation as a means of advancing the cause of civil liberties often depends on the ability to make legal assistance available to suitable litigants. " 'Free trade in ideas' means free trade in the opportunity to persuade to action, not merely to describe facts." Thomas v. Collins, 323 U.S. 516, 537, 65 S.Ct. 315, 325 89 L.Ed. 430 (1945). The First and Fourteenth Amendments require a measure of protection for "advocating lawful means of vindicating legal rights," Button, 371 U.S., at 437, 83 S.Ct., at 340, including "advis[ing] another that his legal rights have been infringed and refer[ring] him to a particular attorney or group of attorneys . . . for assistance," id., at 434, 83 S.Ct., at 338.
V
21
South Carolina's action in punishing appellant for soliciting a prospective litigant by mail, on behalf of the ACLU, must withstand the "exacting scrutiny applicable to limitations on core First Amendment rights . . . ." Buckley v. Valeo, 424 U.S. 1, 44-45, 96 S.Ct. 612, 646, 46 L.Ed.2d 659 (1976). South Carolina must demonstrate "a subordinating interest which is compelling," Bates v. City of Little Rock, 361 U.S. 516, 524, 80 S.Ct. 412, 416, 4 L.Ed.2d 480 (1960), and that the means employed in furtherance of that interest are "closely drawn to avoid unnecessary abridgment of associational freedoms." Buckley, supra, 424 U.S., at 25, 96 S.Ct., at 638.
22
Appellee contends that the disciplinary action taken in this case is part of a regulatory program aimed at the prevention of undue influence, overreaching, misrepresentation, invasion of privacy, conflict of interest, lay interference, and other evils that are thought to inhere generally in solicitation by lawyers of prospective clients, and to be present on the record before us. Brief for Appellee 37-49. We do not dispute the importance of these interests. This Court's decision in Button makes clear, however, that "[b]road prophylactic rules in the area of free expression are suspect," and that "[p]recision of regulation must be the touchstone in an area so closely touching our most precious freedoms." 371 U.S., at 438, 83 S.Ct., at 340; see Mine Workers v. Illinois Bar Assn., 389 U.S., at 222-223, 88 S.Ct., at 356. Because of the danger of censorship through selective enforcement of broad prohibitions, and "[b]ecause First Amendment freedoms need breathing space to survive, government may regulate in [this] area only with narrow specificity." Button, supra, 371 U.S., at 433, 83 S.Ct., at 338.
A.
23
The Disciplinary Rules in question sweep broadly. Under DR 2-103(D)(5), a lawyer employed by the ACLU or a similar organization may never give unsolicited advice to a lay person that he retain the organization's free services, and it would seem that one who merely assists or maintains a cooperative relationship with the organization also must suppress the giving of such advice if he or anyone associated with the organization will be involved in the ultimate litigation. See Tr. of Oral Arg. 32-34. Notwithstanding appellee's concession in this Court, it is far from clear that a lawyer may communicate the organization's offer of legal assistance at an informational gathering such as the July 1973 meeting in Aiken without breaching the literal terms of the Rule. Cf. Memorandum of Complaint, Apr. 8, 1975, p. 9.26 Moreover, the Disciplinary Rules in question permit punishment for mere solicitation unaccompanied by proof of any of the substantive evils that appellee maintains were present in this case. In sum, the Rules in their present form have a distinct potential for dampening the kind of "cooperative activity that would make advocacy of litigation meaningful," Button, supra, at 438, 83 S.Ct., at 340, as well as for permitting discretionary enforcement against unpopular causes.
B
24
Even if we ignore the breadth of the Disciplinary Rules and the absence of findings in the decision below tha support the justifications advanced by appellee in this Court,27 we think it clear from the record—which appellee does not suggest is inadequately developed—that findings compatible with the First Amendment could not have been made in this case. As in New York Times Co. v. Sullivan, 376 U.S. 254, 284-285, 84 S.Ct. 710, 728, 11 L.Ed.2d 686 (1964), "considerations of effective judicial administration require us to review the evidence in the present record to determine whether it could constitutionally support a judgment [against appellant]. This Court's duty is not limited to the elaboration of constitutional principles; we must also in proper cases review the evidence to make certain that those principles [can be] constitutionally applied." See Jenkins v. Georgia, 418 U.S. 153, 160-161, 94 S.Ct. 2750, 2754, 2755, 41 L.Ed.2d 642 (1974); Pickering v. Board of Education, 391 U.S. 563, 574-575, 578-582, and n. 2, 88 S.Ct. 1731, 1737-1738, 1739-1742, 20 L.Ed.2d 811 (1968); Edwards v. South Carolina, 372 U.S. 229, 235-236, 83 S.Ct. 680, 683, 9 L.Ed.2d 697 (1963).
25
Where political expression or association is at issue, this Court has not tolerated the degree of imprecision that often characterizes government regulation of the conduct of commercial affairs. The approach we adopt today in Ohralik, 436 U.S. 447, 98 S.Ct. 1912, that the State may proscribe in-person solicitation for pecuniary gain under circumstances likely to result in adverse consequences, cannot be applied to appellant's activity on behalf of the ACLU. Although a showing of potential danger may suffice in the former context, appellant may not be disciplined unless her activity in fact involved the type of misconduct at which South Carolina's broad prohibition is said to be directed.
26
The record does not support appellee's contention that undue influence, overreaching, misrepresentation, or invasion of privacy actually occurred in this case. Appellant's letter of August 30, 1973, followed up the earlier meeting—one concededly protected by the First and Fourteenth Amendments—by notifying Williams that the ACLU would be interested in supporting possible litigation. The letter imparted additional information material to making an informed decision about whether to authorize litigation, and permitted Williams an opportunity, which she exercised, for arriving at a deliberate decision. The letter was not facially misleading; indeed, it offered "to explain what is involved so you can understand what is going on." The transmittal of this letter—as contrasted with in-person solicitation—involved no appreciable invasion of privacy;28 nor did it afford any significant opportunity for overreaching or coercion. Moreover, the fact that there was a written communication lessens substantially the difficulty of policing solicitation practices that do offend valid rules of professional conduct. See Ohralik, 436 U.S., at 466-467, 98 S.Ct., at 1924-1925. The manner of solicitation in this case certainly was no more likely to cause harmful consequences than the activity considered in Button, see n. 14, supra.
27
Nor does the record permit a finding of a serious likelihood of conflict of interest or injurious lay interference with the attorney-client relationship. Admittedly, there is some potential for such conflict or interference whenever a lay organization supports any litigation. That potential was present in Button, in the NAACP's solicitation of nonmembers and its disavowal of any relief short of full integration, see 371 U.S., at 420, 83 S.Ct., at 331, id., at 460, 465, 83 S.Ct., at 352, 354 (Harlan, J., dissenting). But the Court found that potential insufficient in the absence of proof of a "serious danger" of conflict of interest, id., at 443, 83 S.Ct., at 343, or of organizational interference with the actual conduct of the litigation, id., at 433, 444, 83 S.Ct., at 338, 343. As in Button, "[n]othing that this record shows as to the nature and purpose of [ACLU] activities permits an inference of any injurious intervention in or control of litigation which would constitutionally authorize the application," id., at 444, 83 S.Ct., at 344, of the Disciplinary Rules to appellant's activity.29 A "very distant possibility of harm," Mine Workers v. Illinois Bar Assn., 389 U.S., at 223, 88 S.Ct., at 356, cannot justify proscription of the activity of appellant revealed by this record. See id., at 223-224, 88 S.Ct., at 356-357.30
28
The State's interests in preventing the "stirring up" of frivolous or vexatious litigation and minimizing commercialization of the legal profession offer no further justification for the discipline administered in this case. The Button Court declined to accept the proffered analogy to the common-law offenses of maintenance, champerty, and barratry, where the record would not support a finding that the litigant was solicited for a malicious purpose or "for private gain, serving no public interest," 371 U.S., at 40, 83 S.Ct., at 341; see id., at 439-444, 83 S.Ct., at 341-343. The same result follows from the facts of this case. And considerations of undue commercialization of the legal profession are of marginal force where, as here, a nonprofit organization offers its services free of charge to individuals who may be in need of legal assistance and may lack the financial means and sophistication necessary to tap alternative sources of such aid.31
29
At bottom, the case against appellant rests on the proposition that a State may regulate in a prophylactic fashion all solicitation activities of lawyers because there may be some potential for overreaching, conflict of interest, or other substantive evils whenever a lawyer gives unsolicited advice and communicates an offer of representation to a layman. Under certain circumstances, that approach is appropriate in the case of speech that simply "propose[s] 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 (1973). See Ohralik, 436 U.S., at 455-459, 98 S.Ct., at 1918-1920. In the context of political expression and association, however, a State must regulate with significantly greater precision.32
VI
30
The State is free to fashion reasonable restrictions with respect to the time, place, and manner of solicitation by members of its Bar. See Bates v. State Bar of Arizona, 433 U.S., at 384, 97 S.C ., at 2709; Virginia Pharmacy Board v. Virginia Consumer Council, 425 U.S., at 771, 96 S.Ct., at 1830, and cases cited therein. The State's special interest in regulating members whose profession it licenses, and who serve as officers of its courts, amply justifies the application of narrowly drawn rules to proscribe solicitation that in fact is misleading, overbearing, or involves other features of deception or improper influence.33 As we decide today in Ohralik, a State also may forbid in-person solicitation for pecuniary gain under circumstances likely to result in these evils. And a State may insist that lawyers not solicit on behalf of lay organizations that exert control over the actual conduct of any ensuing litigation. See Button, 371 U.S., at 447, 83 S.Ct., at 345 (WHITE, J., concurring in part and dissenting in part). Accordingly, nothing in this opinion should be read to foreclose carefully tailored regulation that does not abridge unnecessarily the associational freedom of nonprofit organizations, or their members, having characteristics like those of the NAACP or the ACLU.
31
We conclude that South Carolina's application of its DR2-103(D)(5)(a) and (c) and 2-104(A)(5) to appellant's solicitation by letter on behalf of the ACLU violates the First and Fourteenth Amendments. The judgment of the Supreme Court of South Carolina is
32
Reversed.
33
Mr. Justice BRENNAN took no part in the consideration or decision of this case.
34
Mr. Justice BLACKMUN, concurring.
35
Although I join the opinion of the Court, my understanding of the first paragraph of Part VI requires further explanation. The dicta contained in that paragraph are unnecessary to the decision of this case and its First Amendment overtones. I for one, am not now able to delineate in the area of political solicitation the extent of state authority to proscribe misleading statements. Despite the positive language of the text,* footnote 33 explains that the Court also has refused to draw a line regarding misrepresentation:
36
"We have no occasion here to delineate the precise contours of permissible state regulation. Thus, for example, a different situation might be presented if an innocent or merely negligent misstatement were made by a lawyer on behalf of an organization engaged in furthering associational or political interests."
37
It may well be that the State is able to proscribe such solicitation. The resolution of that issue, however, requires a balancing of the State's interests against the important First Amendment values that may lurk in even a negligent misstatement. The Court wisely has postponed this task until an appropriate case is presented and full arguments are carefully considered.
38
Mr. Justice REHNQUIST, dissenting.
39
In this case and the companion case of Ohralik v. Ohio State Bar Assn., 436 U.S. 447, 98 S.Ct. 1912, 56 L.Ed.2d 417, the Court tells its own tale of two lawyers: One tale ends happily for the lawyer and one does not. If we were given the latitude of novelists in deciding between happy and unhappy endings for the heroes and villains of our tales, I might well join in the Court's disposition of both cases. But under our federal system it is for the States to decide which lawyers shall be admitted to the Bar and remain there; this Court may interfere only if the State's decision is rendered impermissible by the United States Constitution. We can, of course, develop a jurisprudence of epithets and slogans in this area, in which "ambulance chasers" suffer one fate and "civil liberties lawyers" another. But I remain unpersuaded by the Court's opinions in these two cases that there is a principled basis for concluding that the First and Fourteenth Amendments forbid South Carolina from disciplining Primus here, but permit Ohio to discipline Ohralik in the companion case. I believe that both South Carolina and Ohio acted within the limits prescribed by those Amendments, and I would therefore affirm the judgment in each case.
40
This Court said in United Transportation Union v. State Bar of Michigan, 401 U.S. 576, 585, 91 S.Ct. 1076, 1082, 28 L.Ed.2d 339 (1971): "The common threat running through our decisions in NAACP v. Button [371 U.S. 415, 91 S.Ct. 1076, 28 L.Ed.2d 339 (1963), Brotherhood of Railroad ] Trainmen [v. Virginia State Bar, 337 U.S. 1, 84 S.Ct. 1113, 12 L.Ed.2d 89 (1964),] and United Mine Workers [v. Illinois State Bar Assn., 389 U.S. 217, 88 S.Ct. 353, 19 L.Ed.2d 426 (1967),] is that collective activity undertaken to obtain meaningful access to the courts is a fundamental right within the protection of the First Amendment." The Court today ignores the absence of this common thread from the fabric of this case, and decides that South Carolina may not constitutionally discipline a member of its Bar for badgering a lay citizen to take part in "collective activity" which she has never desired to join.
41
Neither Button nor any other decision of this Court compels a State to permit an attorney to engage in uninvited solicitation on an individual basis. Further, I agree with the Court's statement in the companion case that the State has a strong interest in forestalling the evils that result "when a lawyer, a professional trained in the art of persuasion, personally solicits an unsophisticated, injured, or distressed lay person." Ohralik, 436 U.S., at 465, 98 S.Ct., at 1923. The reversal of the judgment of the Supreme Court of South Carolina thus seems to me quite unsupported by previous decisions or by any principle which may be abstracted from them.
42
In distinguishing between Primus' protected solicitation and Ohralik's unprotected solicitation, the Court lamely declares: "We have not discarded the 'common-sense' distinction between speech proposing a commercial transaction, which occurs in an area traditionally subject to government regulation, and other varieties of speech." 436 U.S., at 455-456, 98 S.Ct., at 1918. Yet to the extent that this "common-sense" distinction focuses on the content of the speech, it is at least suspect under many of this Court's First Amendment cases, see, e. g. Police Dept. of Chicago v. Mosley, 408 U.S. 92, 96-98, 92 S.Ct. 2286, 2290-2291, 33 L.Ed.2d 212 (1972), and to the extent it focuses upon the motive of the speaker, it is subject to manipulation by clever practitioners. If Albert Ohralik, like Edna Primus, viewed litigation " 'not [as] a technique of resolving private differences,' " but as " 'a form of political expression' and 'political association,' " ante, at 428, quoting Button, supra, at 429, 431, 83 S.Ct., at 336, for all that appears he would be restored to his right to practice. And we may be sure that the next lawyer in Ohralik's shoes who is disciplined for similar conduct will come here cloaked in the prescribed mantle of "political association" to assure that insurance companies do not take unfair advantage of policyholders.
43
This absence of any principled distinction between the two cases is made all the more unfortunate by the radical difference in scrutiny brought to bear upon state regulation in each area. Where solicitation proposes merely a commercial transaction, the Court recognizes "the need for prophylactic regulation in furtherance of the State's interest in protecting the lay public." Ohralik, 436 U.S., at 468, 98 S.Ct., at 1925. On the other hand, in § me circumstances (at least in those identical to the instant case)1 "[w]here political expression or association is at issue," a member of the Bar "may not be disciplined unless her activity in fact involve[s] the type of misconduct at which South Carolina's broad prohibition is said to be directed." Ante, at 434.
44
I do not believe that any State will be able to determine with confidence the area in which it may regulate prophylactically and the area in which it may regulate only upon a specific showing of harm. Despite the Court's assertion to the contrary, ante, at 438 n. 32, the difficulty of drawing distinctions on the basis of the content of the speech or the motive of the speaker is a valid reason for avoiding the undertaking where a more objective standard is readily available. I believe that constitutional inquiry must focus on the character of the conduct which the State seeks to regulate, and not on the motives of the individual lawyers or the nature of the particular litigation involved. The State is empowered to discipline for conduct which it deems detrimental to the public interest unless foreclosed from doing so by our cases construing the First and Fourteenth Amendments.
45
In Button this Court recognized the right of the National Association for the Advancement of Colored People to engage in collective activity, including the solicitation of potential plaintiffs from outside its ranks, for the purpose of instituting and maintaining litigation to achieve the desegregation of public schools. The NAACP utilized letters, bulletins, and petition drives, 371 U.S., at 422, 83 S.Ct., at 332, apparently directed toward both members and nonmembers of the organization, id., at 433, 83 S.Ct., at 338,2 to organize public meetings for the purpose of soliciting plaintiffs. As described in Button, lawyers played only a limited role in this solicitation:
46
"Typical y, a local NAACP branch will invite a member of the legal staff to explain to a meeting of parents and children the legal steps necessary to achieve desegregation. The staff member will bring printed forms to the meeting, authorizing him, and other NAACP or Defense Fund attorneys of his designation, to represent the signers in legal proceedings to achieve desegregation." Id., at 421, 83 S.Ct., at 332.
47
The Court held that the organization could not be punished by the Commonwealth of Virginia for solicitation on the basis of its role in instituting desegregation litigation.3
48
Here, South Carolina has not attempted to punish the ACLU or any laymen associated with it. Gary Allen, who was the instigator of the effort to sue Dr. Pierce, remains as free as before to solicit potential plaintiffs for future litigation. Likewise, Primus remains as free as before to address gatherings of the sort described in Button to advise potential plaintiffs of their legal rights. Primus' first contact with Williams took place at such a gathering, and South Carolina evidently in response to Button, has not attempted to discipline her for her part in that meeting. It has disciplined her for initiating further contact on an individual basis with Williams, who had not expressed any desire to become involved in the collective activity being organized by the ACLU. While Button appears to permit such individual solicitation for political purposes by lay members of the organization, id., at 422, 83 S.Ct., at 332, it nowhere explicitly permits such activity on the part of lawyers.
49
As the Court understands the Disciplinary Rule enforced by South Carolina, "a lawyer employed by the ACLU or a similar organization may never give unsolicited advice to a lay person that he or she retain the organization's free services." Ante, at 433. That prohibition seems to me entirely reasonable. A State may rightly fear that members of its Bar have powers of persuasion not possessed by laymen, see Ohralik, 436 U.S., at 464-465, 98 S.Ct., at 1923, and it may also fear that such persuasion may be as potent in writing as it is in person. Such persuasion may draw an unsophisticated layman into litigation contrary to his own best interests, compare ante, at 1906-1908, with Ohralik, 436 U.S., at 464-467, 98 S.Ct., at 1923-1925, and it may force other citizens of South Carolina to defend against baseless litigation which would not otherwise have been brought. I cannot agree that a State must prove such harmful consequences in each case simply because an organization such as the ACLU or the NAACP is involved.
50
I cannot share the Court's confidence that the danger of such consequences is minimized simply because a lawyer proceeds from political conviction rather than for pecuniary gain. A State may reasonably fear that a lawyer's desire to resolve "substantial civil liberties questions," 268 S.C. 259, 263, 233 S.E.2d 301, 303 (1977), may occasionally take precedence over his duty to advance the interests of his client. It is even more reasonable to fear that a lawyer in such circumstances will be inclined to pursue both culpable and blameless defendants to the last ditch in order to achieve his ideological goals.4 Although individual litigants, including the ACLU, may be free to use the courts for such purposes, South C rolina is likewise free to restrict the activities of the members of its Bar who attempt to persuade them to do so.
51
I can only conclude that the discipline imposed upon Primus does not violate the Constitution, and I would affirm the judgment of the Supreme Court of South Carolina.
1
The court below determined that the Carolina Community Law Firm was " 'an expense sharing arrangement with each attorney keeping his own fees.' " 268 S.C. 259, 261, 233 S.E.2d 301, 302 (1977). The firm later changed its name to Buhl, Smith & Bagby.
2
The ACLU was organized in 1920 by individuals who had worked in the defense of the rights of conscientious objectors during World War I and political dissidents during the postwar period. It views itself as a "national non-partisan organization defending our Bill of Rights for all without distinction or compromise." ACLU, Presenting the American Civil Liberties Union 2 (1948). The organization's activities range from litigation and lobbying to educational campaigns in support of its avowed goals. See Rabin, Lawyers for Social Change: Perspectives on Public Interest Law, 28 Stan.L.Rev. 207, 211-212 (1976); Note, Private Attorneys-General: Group Action in the Fight for Civil Liberties, 58 Yale L.J. 574, 576 (1949); see also App. 185-186. See generally C. Markmann, The Noblest Cry: A History of the American Civil Liberties Union (1965); D. Johnson, The Challenge to American Freedoms: World War I and the Rise of the American Civil Liberties Union (1963).
3
Although all three lawyers in the Carolina Community Law Firm maintained some association with the ACLU—appellant and Carlton Bagby as unsalaried cooperating lawyers, and Herbert Buhl as staff counsel—appellant testified that "the firm did not handle any litigation for [the] ACLU." App. 134.
4
See, e. g., 3 Carolina Doctors Are Under Inquiry in Sterilization of Welfare Mothers, New York Times, July 22, 1973, p. 30, cols. 1-3.
5
App. 94-95, 131-133, 135-137; Brief for Appellee 8.
6
Written on the stationery of the Carolina Community Law Firm, the letter stated:
August 30, 1973
Mrs. Marietta Williams
347 Sumter Street
Aiken, South Carolina 29801
Dear Mrs. Williams:
You will probable remember me from talking with you at Mr. Allen's office in July about the sterilization performed on you. The American Civil Liberties Union would like to file a lawsuit on your behalf for money against the doctor who performed the operation. We will be coming to Aiken in the near future and would like to explain what is involved so you can understand what is going on.
Now I have a question to ask of you. Would you object to talking to a women's magazine about the situation in Aiken? The magazine is doing a feature story on the whole sterilization problem and wants to talk to you and others in South Carolina. If you don't mind doing this, call me collect at 254-8151 on Friday before 5:00, if you receive this letter in time. Or call me on Tuesday m rning (after Labor Day) collect.
I want to assure you that this interview is being done to show what is happening to women against their wishes, and is not being done to harm you in any way. But I want you to decide, so call me collect and let me know of your decision. This practice must stop.
About the lawsuit, if you are interested, let me know, and I'll let you know when we will come down to talk to you about it. We will be coming to \talk to Mrs. Waters at the same time; she has already asked the American Civil Liberties Union to file a suit on her behalf.
Sincerely,
s/ Edna Smith
Edna Smith
Attorney-at-law
App. 3-4.
7
Williams testified that at the July meeting appellant advised her of her legal remedies, of the possibility of a lawsuit if her sterilization had been coerced, and of appellant's willingness to serve as her lawyer without compensation. Williams recounted that she had told appellant that because her child was in critical condition, she "did not have time for" a lawsuit and "would contact [appellant] some more." She also denied that she had expressed to Allen an interest in suing her doctor. Id., at 29-34, 58. On cross-examination, however, Williams confirmed an earlier statement she had made in an affidavit that appellant "did not attempt to persuade or pressure me to file [the] lawsuit." Id., at 52. See n. 28, infra.
8
This class action was filed on April 15, 1974, by two Negro women alleging that Dr. Pierce, in conspiracy with state officials, had sterilized them, or was threatening to do so, solely on account of their race and number of children, while they received assistance under the Medicaid program. The complaint sought declaratory and injunctive relief, damages, and attorney's fees, and asserted violations of the Constitution and 42 U.S.C. §§ 1981, 1983, 1985(3), and 2000d.
Bagby, one of appellant's associates in the Carolina Community Law Firm and fellow cooperating lawyer with the ACLU, was one of several attorneys of record for the plaintiffs. Buhl, another of appellant's associates and a staff counsel for the ACLU in South Carolina, also may have represented one of the women.
9
Appellant also offered to produce expert testimony to the effect that some measure of solicitation of prospective litigants is necessary in safeguarding the civil liberties of inarticulate, economically disadvantaged individuals who may not be aware of their legal rights and of the availability of legal counsel, App. 166-168; that the purpose of the ACLU is to advance and defend the cause of civil liberties, id., at 183-186; and that the ACLU relies on decisions such as NAACP v. Button, 371 U.S. 415, 83 S.Ct. 328, 9 L.Ed.2d 405 (1963), in advising its attorneys of the extent of constitu ional protection for their litigation activities, App. 187-188. These offers of proof were rejected as not germane to the disciplinary proceeding.
10
South Carolina's DR2-103(D) provides:
"(D) A lawyer shall not knowingly assist a person or organization that recommends, furnishes, or pays for legal services to promote the use of
his services or those of his partners or associates. However, he may cooperate in a dignified manner with the legal service activities of any of the following, provided that his independent professional judgment is exercised in behalf of his client without interference or control by any organization or other person:
"(1) A legal aid office or public defender office:
"(a) Operated or sponsored by a duly accredited law school.
"(b) Operated or sponsored by a bona fide non-profit community organization.
"(c) Operated or sponsored by a governmental agency.
"(d) Operated, sponsored, or approved by a bar association representative of the general bar of the geographical area in which the association exists.
"(2) A military legal assistance office.
"(3) A lawyer referral service operated, sponsored, or approved by a bar association representative of the general bar of the geographical area in which the association exists.
"(4) A bar association representative of the general bar of the geographical area in which the association exists.
"(5) Any other non-profit organization that recommends, furnishes, or pays for legal services to its members or beneficiaries, but only in those instances and to the extent that controlling constitutional interpretation at the time of the rendition of the services requires the allowance of such legal service activities, and only if the following conditions, unless prohibited by such interpretation, are met:
"(a) The primary purposes of such organization do not include the rendition of legal services.
"(b) The recommending, furnishing, or paying for legal services to its members is incidental and reasonably related to the primary purposes of such organization.
"(c) Such organization does not derive a financial benefit from the rendition of legal services by the lawyer.
"(d) The member or beneficiary for whom the legal services are rendered, and not such organization, is recognized as the client of the lawyer in that matter."
11
South Carolina's DR2-104(A) provides:
"(A) A lawyer who has given unsolicited advice to a layman that he should obtain counsel or take legal action shall not accept employment resulting from that advice, except that:
"(1) A lawyer may accept employment by a close friend, relative, former client (if the advice is germane to the former employment), or one whom the lawyer reasonably believes to be a client.
"(2) A lawyer may accept employment that results from his participation in activities designed to educate laymen to recognize legal problems, to make intellige t selection of counsel, or to utilize available legal services if such activities are conducted or sponsored by any of the offices or organizations enumerated in DR 2-103(D)(1) through (5), to the extent and under the conditions prescribed therein.
"(3) A lawyer who is furnished or paid by any of the offices or organizations enumerated in DR 2-103(D)(1), (2), or (5) may represent a member or beneficiary thereof to the extent and under the conditions prescribed therein.
"(4) Without affecting his right to accept employment, a lawyer may speak publicly or write for publication on legal topics so long as he does not emphasize his own professional experience or reputation and does not undertake to give individual advice.
"(5) If success in asserting rights or defenses of his client in litigation in the nature of a class action is dependent upon the joinder of others, a lawyer may accept, but shall not seek, employment from those contacted for the purpose of obtaining their joinder."
12
Section 4(b) of the Supreme Court of South Carolina's Rule on Disciplinary Procedure defines misconduct as a "violation of any of the Canons of Professional Ethics as adopted by this Court from time to time . . . ." 22 S.C.Code, p. 59 (1977). On March 1, 1973, the state court adopted the ABA's Code of Professional Responsibility. Rule 32 of the Supreme Court of South Carolina, id., at 48. Although DR2-103(D) has been revised substantially by the ABA, South Carolina has not adopted that revision.
13
In addition to her claim of protection under this Court's Button decision, appellant contends that (i) the State's failure to give her fair notice of the precise charges leveled against her in the disciplinary proceeding worked a violation of due process, see In re Ruffalo, 390 U.S. 544, 88 S.Ct. 1222, 20 L.Ed.2d 117 (1968); (ii) the absence of proof of essential elements of the Disciplinary Rules also violated due process, see Thompson v. Louisville, 362 U.S. 199, 80 S.Ct. 624, 4 L.Ed.2d 654 (1960); and (iii) the Disciplinary Rules are void for vagueness under the First and Fourteenth Amendments, see Bouie v. City of Columbia, 378 U.S. 347, 84 S.Ct. 1697, 12 L.Ed.2d 894 (1964). In view of our disposition of this case, we do not reach these contentions.
14
The Button Court described the solicitation activities of NAACP members and attorneys in the following terms:
"Typically, a local NAACP branch will invite a member of the legal staff to explain to a meeting of parents and children the legal steps necessary to achieve desegregation. The staff member will bring printed forms to the meeting authorizing him, and other NAACP or [NAACP Legal] Defense Fund attorneys of his designation, to represent the signers in legal proceedings to achieve desegregation. On occasion, blank forms have been signed by litigants, upon the understanding that a member or members of the legal staff, with or without assistance from other NAACP lawyers, or from the Defense Fund, would handle the case. It is usual after obtaining authorizations, for the staff lawyer to bring into the case the other staff members in the area where suit is to be brought, and sometimes to bring in lawyers from the national organization or the Defense Fund. In effect, then, the prospective litigant retains not so much a particular attorney as the 'firm' of NAACP and Defense Fund lawyers . . . .
"These meetings are sometimes prompted by letters and bulletins from the Conference urging active steps to fight segregation. The Conference has on occasion distributed to the local branches petitions for desegregation to be signed by parents and filed with local school boards, and advised branch officials to obtain, as petitioners, persons willing to 'go all the way' in any possible litigation that may ensue." 371 U.S., at 421-422, 83 S.Ct., at 332.
15
Put simply, maintenance is helping another prosecute a suit; champerty is maintaining a suit in return for a financial interest in the outcome; and barratry is a continuing practice of maintenance or champerty. See generally 4 W. Blackstone, Commentaries * 134-136; Zimroth, Group Legal Services and the Constitution, 76 Yale L.J. 966, 969-970 (1967); Radin, Maintenance by Champerty, 24 Calif.L.Rev. 48 (1935).
16
Whatever the precise limits of the holding in Button, the Court at least found constitutionally protected the activities of NAACP members and staff lawyers in "advising Negroes of their constitutional rights, urging them to institute litigation of a particular kind, recommending particular lawyers and financing such litigation." 371 U.S., at 447, 83 S.Ct., at 345 (WHITE, J., concurring in part and dissenting in part). In the following Term, the Court noted that Button presented an "occasion to consider an . . . attempt by Virginia to enjoin the National Association for the Advancement of Colored People from advising prospective litigants to seek the assistance of particular attorneys. In fact, . . . the attorneys were actually employed by the association which recommended them and recommendations were made even to nonmembers." Railroad Trainmen v. Virginia Bar, 377 U.S. 1, 7, 84 S.Ct. 1113, 1117, 12 L.Ed.2d 89 (1964); see Mine Workers v. Illinois Bar Assn., 389 U.S. 217, 221, 222-223, 88 S.Ct. 353, 356 (1967).
The dissent of Mr. Justice REHNQUIST suggests that Button is distinguishable from this case because there "lawyers played only a limited role" in the solicitation of prospective litigants, and "the Commonwealth did not attempt to discipline the individual lawyers . . . ." Post, at 444, and n. 3. We do not think that Button can be read in this way. As the Button Court recognized, see n. 14, supra, and as the Virginia Supreme ourt of Appeals had found, NAACP v. Harrison, 202 Va. 142, 154-155, 116 S.E.2d 55, 65 (1960), NAACP staff attorneys were involved in the actual solicitation efforts. The absence of discipline in Button was not due to an absence of lawyer involvement in solicitation. Indeed, from all that appears, no one was disciplined; the case came to this Court in the posture of an anticipatory action for declaratory relief. The state court's decree made quite clear that "the solicitation of legal business by . . . [NAACP] attorneys, as shown by the evidence," and the acceptance of such solicited employment by NAACP-compensated attorneys, violated the state ban and the canons of ethics. Id., at 164, 116 S.E.2d, at 72. We therefore cannot view as dicta Button § holding that "the activities of the NAACP . . . legal staff shown on this record are modes of expression and association protected by the First and Fourteenth Amendments which Virginia may not prohibit, under its power to regulate the legal profession, as improper solicitation of legal business . . . ." 371 U.S., at 428-429, 83 S.Ct., at 335.
17
Appellee "finds no fault in Appellant's conduct in meeting with the women to advise them of their legal rights, even if such advice was unsolicited. There is no doubt that such activity is protected under the First Amendment." Brief for Appellee 30.
18
In the discussion that follows, we do not treat separately the two Disciplinary Rules upon which appellant's violation was based. Since DR 2-103(D)(5) was held by the court below to proscribe in a narrower fashion the same conduct as DR 2-104(A)(5), see n. 26, infra, a determination of unconstitutionality as to the former would subsume the latter.
19
See, e. g., Scopes v. State, 154 Tenn. 105, 289 S.W. 363 (1927); De Jonge v. Oregon, 299 U.S. 353, 57 S.Ct. 255, 81 L.Ed. 278 (1937); Hague v. CIO, 307 U.S. 496, 59 S.Ct. 954, 83 L.Ed. 1423 (1939); Wieman v. Updegraff, 344 U.S. 183, 73 S.Ct. 215, 97 L.Ed. 216 (1952); United States v. O'Brien, 391 U.S. 367, 88 S.Ct. 1673, 29 L.Ed.2d 672 (1968); Oestereich v. Selective Service Bd., 393 U.S. 233, 89 S.Ct. 414, 21 L.Ed.2d 402 (1968).
20
There is nothing in the record to suggest that the ACLU or its South Carolina affiliate is an organization dedicated exclusively to the provision of legal services. See n. 2, supra. Nor does the record support any inference that either the ACLU or its affiliate "is a mere sham to cover what is actually nothing more than an attempt," Eastern Railroad Presidents Conf. v. Noerr Motor Freight, Inc., 365 U.S. 127, 144, 81 S.Ct. 523, 532, 5 L.Ed.2d 464 (1961), by a group of attorneys to evade a valid state rule against solicitation for pecuniary gain. Compare Valentine v. Chrestensen, 316 U.S. 52, 55, 62 S.Ct. 920, 921, 86 L.Ed. 1262 (1942), with New York Times Co. v. Sullivan, 376 U.S. 254, 266, 84 S.Ct. 710, 718, 11 L.Ed.2d 686 (1964). Cf. California Transport v. Trucking Unlimited, 404 U.S. 508, 515, 92 S.Ct. 609, 614, 30 L.Ed.2d 642 (1972).
21
Appellee conjectures that appellant would have received increased support from private foundations if her reputation was enhanced as a result of her efforts in the cause of the ACLU. The decision below acknowledged, however, that the evidence did not support a finding that appellant solicited Williams on her own behalf. 268 S.C., at 263, 233 S.E.2d, at 303. Since the discipline in this case was premised solely on the possibility that appellant's solicitation might have conferred a financial benefit on the ACLU, ibid., and any award of counsel fees would have been received only for the organization's benefit, see n. 24, infra, we also attach no significance to the fact that two of the attorneys in the Doe v. Pierce litigation were associated with appellant in an arrangement for sharing office expenses. See nn. 1, 8, supra.
22
"The Virginia State Conference of [NAACP] Branches or petitioner pays the fees and expenses of the attorneys when they are handling a case involving discrimination, supported by the state or the national organization . . . . A fee of $60 per day is paid to the attorneys . . . who are almost invariably members of the legal staff." Brief for Petitioner in NAACP v. Gray, O.T.1962, No. 5, pp. 9-10.
23
In Alyeska Pipeline Service Co. v. Wilderness Society, 421 U.S. 240, 95 S.Ct. 1612, 44 L.Ed. 141 (1975), the Court held that a federal court may not award counsel fees in the absence of specific statutory authorization, a showing of "bad faith" in the conduct of the litigation, or facts giving rise to a "common fund" or "common benefit" recovery. The Court of Appeals for the Fourth Circuit anticipated our ruling in Alyeska. See Bradley v. School Board of City of Richmond, 472 F.2d 318, 327-331 (1972), vacated and remanded on other grounds, 416 U.S. 696, 94 S.Ct. 2006, 40 L.Ed.2d 476 (1974); Bradley v. School Board of City of Richmond, 345 F.2d 310, 321 (1965).
24
Appellant informs us that the ACLU policy then in effect provided that cooperating lawyers associated with the ACLU or with an affiliate could not receive an award of counsel fees for services rendered in an ACLU-sponsored litigation. Reply Brief for Appellant 4-5; see App. 173-175, 181-183; 1976 Policy Guide of the American Civil Liberties Union, Policy # 512, p. 302:
"Under no circumstances may any cooperating attorney associated in any way with an ACLU or affiliate case receive payment for services rendered in such a case, whether as a fee or voluntary donation. The smallest exception to this rule would jeopardize the voluntary nature of the cooperating system and the effectiveness of ACLU's entire legal program."
Apparently it was feared that allowing acceptance of such fees might lead to selection of clients and cases for pecuniary reasons. See App. 182.
This policy was changed in 1977 to permit local experimentation with the sharing of court-awarded fees between state affiliates and cooperating attorneys. The South Carolina chapter has not exercised that option. Reply Brief for Appellant 5-6. We express no opinion whether our analysis in this case would be different had the latter policy been in effect during the period in question.
25
The Internal Revenue Service has announced certain requirements for "public interest law firms" that seek tax-exempt status under § 501(c)(3) of the Internal Revenue Code of 1954, 26 U.S.C. § 501(c)(3). Such an organization (i) may not accept fees from its clients as compensation for services rendered; (ii) may accept fees "in public interest cases" only if such fees are awarded by a court or administrative agency; (iii) may "not use the likelihood or probability of a fee award as a consideration in its selection of cases" ; (iv) may not defray "more than 50 percent of the total cost of its legal functions" from awarded fees, unless an exemption is granted; (v) may not permit payment of awarded fees directly to individual staff attorneys; and (vi) may not accept awarded fees in circumstances that would result in any conflict with state law or professional canons of ethics. Rev.Proc. 75-13, § 3, 1975-1 Cum.Bull. 662. See Rev.Ruls. 75-74 through 75-76, 1975-1 Cum.Bull. 152-155.
26
DR 2-104(A)(5), as construed below, stands as a separate prohibition even though it appears in terms to be an exception to DR 2-104(A), which bars only the acceptance of employment after the giving of unsolicited advice. It was applied in this case to an attorney who recommended participation in a prospective litigation and who did not accept any employment.
27
Rights of political expression and association may not be abridged because of state interests asserted by appellate counsel without substantial support in the record or findings of the state court. See First National Bank of Boston v. Bellotti, 435 U.S. 765, 789-790, 98 S.Ct. 1407, 1422-1423, 55 L.Ed.2d 707 (1978); United Transportation Union v. Michigan Bar, 401 U.S., 576, 581, 91 S.Ct. 1076, 1080, 28 L.Ed.2d 339 (1971); Sherbert v. Verner, 374 U.S. 398, 407, 83 S.Ct. 1790, 1795, 10 L.Ed.2d 965 (1963); Button, 371 U.S., at 442-443, 83 S.Ct., at 342-343; Wood v. Georgia, 370 U.S. 375, 388, 82 S.Ct. 1364, 1371, 8 L.Ed.2d 569 (1962); Thomas v. Collins, 323 U.S. 516, 530, 536, 65 S.Ct. 315, 322, 325, 89 L.Ed. 430 (1945).
28
This record does not provide a constitutionally adequate basis for a finding, not made below, that appe lant deliberately thrust her professional services on an individual who had communicated unambiguously a decision against litigation. Cf. Rowan v. Post Office Dept., 397 U.S. 728, 90 S.Ct. 1484, 25 L.Ed.2d 736 (1970). For present purposes, we credit Williams' conflicting testimony to the effect that at the July meeting she told appellant that because of the condition of her child she "didn't have time to think about suing" and "if I needed you all I will call you." App. 74; see n. 7, supra. But even on that view of the testimony, appellant's letter cannot be characterized as a pressure tactic. A month had elapsed between the meeting and the letter. Not only was there a possibility that Williams' personal situation might have changed during this period, but appellant testified that Allen, a close friend of the Williams family, told her that Williams subsequently communicated to him an interest in the lawsuit; Allen corroborated this testimony. App. 115-116, 137, 195-196. In light of these circumstances, and Williams' own acknowledgment that appellant "did not attempt to persuade or pressure me to file this lawsuit," id., at 52, appellant did not go beyond the pale of constitution protection in writing a single letter for the purpose of imparting new information material to a decision whether or not to authorize litigation, and inquiring "if you are interested, let me know, and I'll let you know when we will come down to talk to you about it."
29
Although the decision whether or not to support a particular litigation is made in accordance with the ACLU's broader objectives, the organization's declared policy is to avoid all interference with the attorney-client relationship after that decision has been made. See 1976 Policy Guide of the American Civil Liberties Union, Policy # 513, p. 305.
30
We are not presented in this case with a situation where the income of the lawyer who solicits the prospective litigant or who engages in the actual representation of the solicited client rises or falls with the outcome of the particular litigation. See supra, at 428-431, and n. 24.
31
Button makes clear that "regulations which reflect hostility to stirring up litigation have been aimed chiefly at those who urge recourse to the courts for private gain, serving no public interest," 371 U.S., at 440, 83 S.Ct., at 341, and that "[o]bjection to the intervention of a lay intermediary . . . also derives from the element of pecuniary gain," id., at 441, 83 S.Ct., at 342. In recognition of the overarching obligation of the lawyer to serve the community, see Canon 2 of the ABA Code of Professional Responsibility, the ethical rules of the legal profession traditionally have recognized an exception from any general ban on solicitation for offers of representation, without charge, extended to individuals who may be unable to obtain legal assistance on their own. See, e. g., In re Ades, 6 F.Supp. 467, 475-476 (Md.1934); Gunnels v. Atlanta Bar Assn., 191 Ga. 366, 12 S.E.2d 602 (1940); American Bar Association, Opinions of the Committee on Professional Ethics, Formal Opinion 148, pp. 416-419 (1967).
32
Normally the purpose or motive of the speaker is not central to First Amendment protection, but it does bear on the distinction between conduct that is "an associational aspect of 'expression'," Emerson, Freedom of Association and Freedom of Expression, 74 Yale L.J. 1, 26 (1964), and other activity subject to plenary regulation by government. Button recognized that certain forms of "cooperative, organizational activity," 371 U.S., at 430, 83 S.Ct., at 341, including litigation, are part of the "freedom to engage in association for the advancement of beliefs and ideas," NAACP v. Alabama, 357 U.S. 449, 460, 78 S.Ct. 1163, 1170, 2 L.Ed.2d 1488 (1958), and that this freedom is an implicit guarantee of the First Amendment. See Healy v. James, 408 U.S. 169, 181, 92 S.Ct. 2338, 2346, 33 L.Ed.2d 266 (1972). As shown above, appellant's speech—as part of associational activity—was expression intended to advance "beliefs and ideas." In Ohralik v. Ohio State Bar Assn., 436 U.S. 447, 98 S.Ct. 1912, the lawyer was not engaged in associational activity for the advancement of beliefs and ideas; his purpose was the advancement of his own commercial interests. The line, based in part on the motive of the speaker and the character of the expressive activity, will not always be easy to draw, cf. Virginia Pharmacy Board v. Virginia Consumer Council, 425 U.S. 748, 787-788, 96 S.Ct. 1817, 1838, 48 L.Ed.2d 246 (1976) (REHNQUIST, J., dissenting), but that is no reason for avoiding the undertaking.
33
We have no occasion here to delineate the precise contours of permissible state regulation. Thus, for example, a different situation might be presented if an innocent or merely negligent misstatement were made by a lawyer on behalf of an organization engaged in furthering associational or political interests.
*
"The State's special interest in regulating members whose profession it licenses, and who serve as officers of its courts, amply justifies the application of narrowly drawn rules to proscribe solicitation that in fact is misleading . . . ." Ante, at 438.
1
The Court carefully reserves judgment on factual circumstances in any way distinguishable from those presented here. For instance, the Court suggests that different considerations would arise if Primus herself had received any benefit from the solicitation, or if her income depended in any way on the outcome of the litigation. Ante, at 428-429 n. 21, 436 n. 30. Likewise, the Court emphasizes that the lawyers conducting the litigation would have taken no share had attorney's fees been awarded by the court. Ante, at 430 n. 24. Finally, the Court points out that Williams had not "communicated unambiguously a decision against litigation," ante, at 435 n. 28, that the solicitation was not effected in person, ante, at 435, and that legal services were offered free of charge, ante, at 437. All these reservations seem to imply that a State might be able to raise an absolute prohibition against any of these factual variations, even "[i]n the context of political expression and association." Ante, at 437-438. But see ante, p. 439 (BLACKMUN, J., concurring). On the other hand, in Ohralik, 436 U.S., at 462-463 n. 20, 98 S.Ct., at 1922, the Court appears to give a broader reading to today's holding. "We hold today in Primus that a lawyer who engages in solicitation as a form of protected political association generally may not be disciplined without proof of actual wrongdoing that the State constitutionally may proscribe."
2
Of all our cases recognizing the protected status of "collective activity undertaken to obtain meaningful access to the courts," United Transportation Union v. Michigan Bar, 401 U.S. 576, 585, 91 S.Ct. 1076, 1082, 28 L.Ed.2d 339 (1971), only Button involves the solicitation of nonmembers of the organization. See United Transportation Union, supra, at 577-578, 91 S.Ct., at 1078; United Mine Workers v. Illinois Bar Assn., 389 U.S. 217, 218, 88 S.Ct. 353, 354, 19 L.Ed.2d 426 (1967); Railroad Trainmen v. Virginia Bar, 377 U.S. 1, 7, 84 S.Ct. 1113, 1117, 12 L.Ed.2d 89 (1964).
3
In Button the Commonwealth did not attempt to discipline the individual lawyers for their role in the solicitation. The Court's statement that "the activities of the . . . legal staff shown on this record are modes of expression and association protected by the First and Fourteenth Amendments which Virginia may not prohibit," 371 U.S., at 428-429, 83 S.Ct., at 335, is therefore technically dictum. Thus, the Court's conclusion today that a State may not discipline a member of its Bar for soliciting an individual not already engaged in the sort of collective activity protected under our cases is as unprecedented as it is unsound.
4
In the case with which Primus was concerned, the last ditch was the denial of certiorari in this Court after the Court of Appeals for the Fourth Circuit had held that Pierce had not in fact acted under color of state law. Walker v. Pierce, 560 F.2d 609 (CA4 1977), cert. denied, 434 U.S. 1075, 98 S.Ct. 1266, 55 L.Ed.2d 782 (1978).
| 56
|
436 U.S. 478
98 S.Ct. 1930
56 L.Ed.2d 468
Michael TAYLOR, Petitioner,v.Commonwealth of KENTUCKY.
No. 77-5549.
Argued March 27, 1978.
Decided May 30, 1978.
Syllabus
At petitioner's Kentucky state robbery trial, which resulted in his conviction, the trial court instructed the jury as to the prosecutor's burden of proof beyond a reasonable doubt but refused, inter alia, petitioner's requested instruction on the presumption of innocence. The robbery victim was the prosecution's only witness, and petitioner was the sole defense witness. The prosecutor in his opening statement related the circumstances of petitioner's arrest and indictment. In his closing statement, the prosecutor made observations suggesting that petitioner's status as a defendant tended to establish his guilt. The Kentucky Court of Appeals affirmed the conviction, rejecting petitioner's argument that he was entitled to the requested instruction as a matter of due process under the Fourteenth Amendment. Held : On the facts, the trial court's refusal to give petitioner's requested instruction on the presumption of innocence resulted in a violation of his right to a fair trial as guaranteed by the Due Process Clause of the Fourteenth Amendment. Howard v. Fleming, 191 U.S. 126, 24 S.Ct. 49, 48 L.Ed. 121, distinguished. Pp. 483-490.
(a) While the legal scholar may understand that the presumption of innocence and the prosecution's burden of proof are logically similar, the ordinary citizen may draw significant additional guidance from an instruction on the presumption of innocence. Pp. 483-485.
(b) An instruction on the presumption is one way of impressing upon the jury the importance of an accused's right to have his guilt or innocence determined solely on the basis of evidence introduced at trial and not on grounds of official suspicion, indictment, continued custody, or other circumstances not adduced as proof at trial. Pp. 485-486.
(c) The prosecutor's remarks during his opening and closing statements, together with the skeletal instructions of the trial court, gave rise to a genuine risk that the jury would convict petitioner on the basis of extraneous considerations, rather than on the proof adduced at the trial, a risk heightened by the fact that the trial was essentially a swearing contest between victim and accused. Pp. 486-488.
(d) That the trial court instructed as to the burden of proof beyond a reasonable doubt did not obviate the necessity for a presumption-of-innocence instruction in view of both the special purpose of such an instruction and the particular need for it in this case. P. 1936. (e) Nor did the fact that defense counsel argued the presumption of innocence in both his opening and closing statements dispense with the need for a presumption-of-innocence instruction, since arguments of counsel cannot substitute for instructions by the court. Pp. 488-489.
551 S.W.2d 813, reversed and remanded.
J. Vincent Aprile, II, Frankfort, Ky., for petitioner.
Guy C. Shearer, Frankfort, Ky., for respondent.
Mr. Justice POWELL delivered the opinion of the Court.
1
Only two Terms ago, this Court observed that the "presumption of innocence, although not articulated in the Constitution, is a basic component of a fair trial under our system of criminal justice." Estelle v. Williams, 425 U.S. 501, 503, 96 S.Ct. 1691, 1692, 48 L.Ed.2d 126 (1976). In this felony case, the trial court instructed the jury as to the prosecution's burden of proof beyond a reasonable doubt, but refused petitioner's timely request for instructions on the presumption of innocence and the indictment's lack of evidentiary value. We are asked to decide whether the Due Process Clause of the Fourteenth Amendment requires that either or both instructions be given upon timely defense motions.
2
* Petitioner was tried for robbery in 1976, allegedly having forced his way into the home of James Maddox and stolen a house key and a billfold containing $10 to $15. During voir dire of the jury, defense counsel questioned the panel about their understanding of the presumption of innocence,1 the burden of proof beyond a reasonable doubt,2 and the fact that an indictment is not evidence.3 The prosecutor then read the indictment to the jury.4
3
The Commonwealth's only witness was Maddox. He testified that he had known petitioner for several years and had entertained petitioner at his home on several occasions. According to Maddox, petitioner and a friend knocked on his door on the evening of February 16, 1976, asking to be admitted. Maddox refused, saying he had to go to bed. The two left, but returned 15 minutes later. They forced their way in, hit Maddox over the head, and fled with his billfold and house key, which were never recovered.
4
Petitioner then took the stand as the only witness for the defense. He admi ted having been at Maddox's home on other occasions, but denied going there on February 16 or participating in the robbery. He stated that he had spent that night with two friends sitting in a parked car, watching a rainstorm and a power failure. Defense counsel requested the trial court to instruct the jury that "[t]he law presumes a defendant to be innocent of a crime,"5 and that the indictment, previously read to the jury, was not evidence to be considered against the defendant.6 The court declined to give either instruction, and did not convey their substance in its charge to the jury. It did instruct the jury as to the Commonwealth's burden of proving petitioner's guilt beyond a reasonable doubt.7 Petitioner was found guilty and sentenced to five years of imprisonment.
5
The Kentucky Court of Appeals affirmed, one judge dissenting. 551 S.W.2d 813 (1977). Pet tioner argued8—and the Commonwealth denied9—that he was entitled as a matter of due process under the Fourteenth Amendment to instructions that he was presumed to be innocent10 and that his indictment was not evidence of guilt. Both sides briefed federal decisions at some length. Nevertheless, the Court of Appeals rejected petitioner's presumption-of-innocence contention by citing Kentucky case law for the proposition "that as long as the trial court instructs the jury on reasonable doubt an instruction on the presumption of innocence is not necessary." Id., at 814. Without citing any authority, the court also declared that there was no merit in the position "that failure to give . . . an instruction [on the indictment's lack of evidentiary value] denies the defendant due process of the law." Ibid. Because petitioner had not made a contemporaneous objection, the court refused to consider petitioner's additional contention that the prosecutor's closing argument had been improper.11 The Supreme Court of Kentucky denied discretionary review, and we granted certiorari, 434 U.S. 964, 98 S.Ct. 502, 54 L.Ed.2d 449 (1977). We now reverse.
II
6
"The principle that there is a presumption of innocence in favor of the accused is the undoubted law, axiomatic and elementary, and its enforcement lies at the foundation of the administration of our criminal law." Coffin v. United States, 156 U.S. 432, 453, 15 S.Ct. 394, 403, 39 L.Ed. 481 (1895). The Coffin Court traced the venerable history of the presumption from Deuteronomy through Roman law, English common law, and the common law of the United States. While Coffin held that the presumption of innocence and the equally fundamental principle that the prosecution bears the burden of proof beyond a reasonable doubt were logically separate and distinct, id., at 458-461, 15 S.Ct., at 404-405, sharp scholarly riticism demonstrated the error of that view, see, e. g., J. Thayer, A Preliminary Treatise on Evidence 551-576 (1898) (hereafter Thayer); 9 J. Wigmore, Evidence § 2511 (3d ed. 1940) (hereafter Wigmore); C. McCormick, Evidence 805-806 (2d ed. 1972) (hereafter McCormick).12
7
Nevertheless, these same scholars advise against abandoning the instruction on the presumption of innocence, even when a complete explanation of the burden of proof beyond a reasonable doubt is provided. Thayer 571-572; Wigmore 407; McCormick 806. See also ALI, Model Penal Code § 1.12(1) (Proposed Off.Draft 1962). This admonition derives from a perceived salutary effect upon lay jurors. While the legal scholar may understand that the presumption of innocence and the prosecution's burden of proof are logically similar, the ordinary citizen well may draw significant additional guidance from an instruction on the presumption of innocence. Wigmore described this effect as follows:
8
"[I]n a criminal case the term [presumption of innocences does convey a special and perhaps useful hint over and above the other form of the rule about the burden of proof, in that it cautions the jury to put away from their minds all the suspicion that arises from the arrest, the indictment, and the arraignment, and to reach their conclusion solely from the legal evidence adduced. In other words, the rule about burden of proof requires the prosecution by evidence to convince the jury of the accused's guilt; while the presumption of innocence, too, requires this, but conveys for the jury a special and additional caution (which is perhaps only an implied corollary to the other) to consider, in the material for their belief, nothing but the evidence, i. e., no surmises based on the present situation of the accused. This caution is indeed particularly needed in criminal cases. Wigmore 407.
9
This Court has declared that one accused of a crime is entitled to have his guilt or in ocence determined solely on the basis of the evidence introduced at trial, and not on grounds of official suspicion, indictment, continued custody, or other circumstances not adduced as proof at trial. See,e. g. Estelle v. Williams, 425 U.S. 501, 96 S.Ct. 1691, 48 L.Ed.2d 126 (1976). And it long has been recognized that an instruction on the presumption is one way of impressing upon the jury the importance of that right. See, e. g., United States v. Thaxton, 483 F.2d 1071, 1073 (C.A. 5 1973); Reynolds v. United States, 238 F.2d 460, 463, and n. 4 (C.A. 9 1956); People v. Hill, 182 Colo. 253, 257-258, 512 P.2d 257, 259 (1973); Carr v. State, 192 Miss. 152, 157, 4 So.2d 887, 888 (1941); State v. Rivers, 206 Minn. 85, 93, 287 N.W. 790, 794 (1939); Commonwealth v. Madeiros, 255 Mass. 304, 316, 151 N.E. 297, 300 (1926); Reeves v. State, 29 Fla. 527, 542, 10 So. 901, 905 (1892). See alsoHolt v. United States, 218 U.S. 245, 253-254, 31 S.Ct. 2, 6, 54 L.Ed. 1021 (1910); Agnew v. United States, 165 U.S. 36, 51-52, 17 S.Ct. 235, 241, 41 L.Ed. 624 (1897). While use of the particular phrase "presumption of innocence"—or any other form of words—may not be constitutionally mandated, the Due Process Clause of the Fourteenth Amendment must be held to safeguard "against dilution of the principle that guilt is to be established by probative evidence and beyond a reasonable doubt." Estelle v. Williams, supra, 425 U.S., at 503, 96 S.Ct., at 1693. The "purging" effect of an instruction on the presumption of innocence, Thaxton, supra, 483 F.2d, at 1073, simply represents one means of protecting the accused's constitutional right to be judged solely on the basis of proof adduced at trial.13
III
10
Petitioner argues that in the circumstances of this case, the purging effect of an instruction on the presumption of innocence was essential to a fair trial. He points out that the trial court's instructions were themselves skeletal, placing little emphasis on the prosecution's duty to prove the case beyond a reasonable doubt and none at all on the jury's duty to judge petitioner only on the basis of the testimony heard at trial.
11
Against the background of the court's rather Spartan instructions, the prosecutor's closing argument ranged far and wide, asking the jury to draw inferences about petitioner's conduct from "facts" not in evidence, but propounded by the prosecutor. For example, he described the reasonable-doubt standard by declaring that petitioner, "like every other defendant who's ever been tried who's in the penitentiary or in the reformatory today, has this presumption of innocence until proved guilty beyond a reasonable doubt." App. 45 (emphasis added). This statement linked petitioner to every defendant who turned out to be guilty and was sentenced to imprisonment. It could be viewed as an invitation to the jury to consider petitioner's status as a defendant as evidence tending to prove his guilt. Similarly, in responding to defense counsel's rhetorical query as to the whereabouts of the items stolen from Maddox, the prosecutor declared that "[o]ne of the first things defendants do after they rip someone off, they get rid of the evi ence as fast and as quickly as they can." Ibid. (emphasis added). This statement also implied that all defendants are guilty and invited the jury to consider that proposition in determining petitioner's guilt or innocence.14
12
Additionally, the prosecutor observed in his opening statement that Maddox "took out" a warrant against petitioner and that the grand jury had returned an indictment, which the prosecutor read to the jury. Thus, the jury not only was invited to consider the petitioner's status as a defendant, but also was permitted to draw inferences of guilt from the fact of arrest and indictment.15 The prosecutor's description of those events was not necessarily improper, but the combination of the skeletal instructions, the possible harmful inferences from the references to the indictment, and the repeated suggestions that petitioner's status as a defendant tended to establish his guilt created a genuine danger that the jury would convict petitioner on the basis of those extraneous considerations, rather than on the evidence introduced at trial. That risk was heightened because the trial essentially was a swearing contest between victim and accused.16
IV
13
Against the need for a presumption-of-innocence instruction, the Commonwealth argues first that such an instruction is not required where, as here, the jury is instructed as to the burden of proof beyond a reasonable doubt. The trial court's truncated discussion of reasonable doubt, however, was hardly a model of clarity. It defined reasonable doubt as "a substantial doubt, a real doubt." Id., at 40. This definition, though perhaps not in itself reversible error, often has been criticized as confusing. See, e. g., United States v. Muckenstrum, 515 F.2d 568, 571 (C.A. 5), cert. denied, 423 U.S. 1032, 96 S.Ct. 564, 46 L.Ed.2d 406 (1975); United States v. Christy, 444 F.2d 448, 450 (C.A. 6), cert. denied, 404 U.S. 949, 92 S.Ct. 293, 30 L.Ed.2d 266 (1971). And even if the instruction on reasonable doubt had been more clearly stated, the Commonwealth's argument ignores both the special purpose of a presumption-of-innocence instruction and the particular need for such an instruction in this case.
14
The Commonwealth also contends that no additional instructions were required, because defense counsel argued the presumption of innocence in both his opening and closing statements. But arguments of counsel cannot substitute for instructions by the court. United States v. Nelson, 498 F.2d 1247 (C.A. 5 1974). Petitioner's right to have the jury deliberate solely on the basis of the evidence cannot be permitted to hinge upon a hope that defense counsel will be a more effective advocate for that proposition than the prosecutor will be in implying that extraneous circumstances may be considered. It was the duty of the court to safeguard petitioner's rights, a duty only it could have performed reliably. See Estelle v. Williams, 425 U.S., at 503, 96 S.Ct., at 1692.17
15
Finally, the Commonwealth argues that Howard v. Fleming, 191 U.S. 126, 24 S.Ct. 49, 48 L.Ed. 121 (1903), established that the Fourteenth Amendment does not require instructions on the presumption of innocence. In Howard, however, the trial court had instructed the jury to consider only the evidence and the law as received from the court.18 The argument in Howard was not that failure to give an explicit instruction on the presumption of innocence raised a danger that the jury might judge defendants on matters other than the evidence. Instead, plaintiffs-in-error relied on Coffin for the erroneous proposition that the presumption of innocence is "evidence" to be weighed in the accused's favor. Brief for Appellants in Howard v. Fleming, O.T. 1903, Nos. 44 and 45, pp. 111-113. The Court had discarded this view some years before. See n. 12, supra. Thus, Howard held only that the accused is not entitled to an instruction that the presumption of innocence is "evidence." It did not cast doubt upon the additional function of the presumption as an admonition to consider only the evidence actually introduced, since such an instruction had been given.
V
16
We hold that on the facts of this case the trial court's refusal to give petitioner's requested instruction on the presumption of innocence resulted in a violation of his right to a fair trial as guaranteed by the Due Process Clause of the Fourteenth Amendment. The judgment of conviction is reversed, and the case is remanded for further proceedings not inconsistent with this opinion.
So ordered.
17
Mr. Justice BRENNAN, concurring.
18
I join the Court's opinion because in reversing petitioner's conviction it reaffirms that "the 'presumption of innocence, although not articulated in the Constitution, is a basic component of a fair trial under our system of criminal justice,' " ante, at 479, quoting Estelle v. Williams, 425 U.S. 501, 503, 96 S.Ct. 1691, 1692, 48 L.Ed.2d 126 (1976). It follows from this proposition, as is clear from the Court's opinion, that trial judges should instruct the jury on a criminal defendant's entitlement to a presumption of innocence in all cases where such an instruction is requested.
19
Mr. Justice STEVENS, with whom Mr. Justice REHNQUIST joins, dissenting.
20
In a federal court it is reversible error to refuse a request for a proper instruction on the presumption of innocence. Coffin v. United States, 156 U.S. 432, 460-461, 15 S.Ct. 394, 405, 39 L.Ed.2d 481.1 That is not, however, a sufficient reason for holding that such an instruction is constitutionally required in every criminal trial.2
21
The function of the instruction is to make it clear that the burden of persuasion rests entirely on the prosecutor. The same function is performed by the instruction requiring proof beyond a reasonable doubt.3 One standard instruction adds emphasis to the other. Neither should be omitted, but an "omission, or an incomplete instruction, is less likely to be prejudicial than a misstatement of the law." Henderson v. Kibbe, 431 U.S. 145, 155, 97 S.Ct. 1730, 1737, 52 L.Ed.2d 203. In some cases the omission may be fatal, but the Court wisely avoids a holding that this is always so.
22
In this case the omission did not violate a specific constitutional guarantee, such as the privilege against compulsory self-incrimination.4 Nor did it deny the defendant his fundamental right to a fair trial. An instruction on reasonable doubt, admittedly brief, was given. The voir dire had made clear to each juror the defendant's right to be presumed innocent despite his indictment.5 The prosecutor's closing argument did not precipitate any objection from defense counsel who listened to it; it may not, therefore, provide the basis for a reversal. Cf. Estelle v. Williams, 425 U.S. 501, 506-513, 96 S.Ct. 1694, 1697. Although the Court's appraisal is not unreasonable, for this was by no means a perfect trial, I do not believe that constitutional error was committed. Accordingly, I respectfully dissent.
1
App. 19, 21.
2
Id., at 19-21.
3
Id., at 17.
4
Id., at 23.
5
Petitioner's requested instruction on this point read as follows:
"The law presumes a defendant to be innocent of a crime. Thus a defendant, although accused, begins the trial with a 'clean slate.' That is, with no evidence against him. The law permits nothing but legal evidence presented before a jury to be considered in support of any charge against the accused. So the presumption of innocence alone is sufficient to acquit a defendant, unless you are satisfied beyond a reasonable doubt of the defendant's guilt after careful and impartial consideration of all the evidence in the case." Id., at 53.
This instruction is nearly identical to one contained in 1 E. Devitt & C. Blackmar, Federal Jury Practice and Instructions § 11.14, p. 310 (3d ed. 1977). See also United States v. Alston, 179 U.S.App.D.C. 129, 132-133, 551 F.2d 315, 318-319 (1976); United States v. Cummings, 468 F.2d 274, 280 (C.A. 9 1972).
6
Petitioner's proposed instruction on this point read as follows:
"The jury is instructed that an indictment is in no way any evidence against the defendant and no adverse inference can be drawn against the defendant from a finding of the indictment. The indictment is merely a written accusation charging the defendant with the commission of a crime. It has no probative force and carries with it no implication of guilt." App. 53.
7
The trial court's instructions, in their entirety, were as follows:
"All right. These are your instructions as to the law applicable to the facts you've heard in evidence from the witness stand in this case.
"Number one, you will find the defendant guilty under this instruction if and only if you believe from the evidence beyond a reasonable doubt all of the following: A. That in this county on or about February 16, 1976 and before the finding of the indictment herein, he the defendant stole a sum of money and a house key from James Maddox, 249 Rosewood, Frankfort, Kentucky; and B. in the course of so doing he used physical force on James Maddox. If you find the defendant guilty under this instruction you will fix his punishment at confinement in the penitentiary for not less than five nor more than ten years in your discretion.
"Number two, if upon the whole case you have a reasonable doubt as to the defendant's guilt you will find him not guilty. The term 'reasonable doubt' as used in these instructions means a substantial doubt, a real doubt, in that you must ask yourself not whether a better case might have been proved but whether after hearing all the evidence you actually doubt that the defendant is guilty.
"Number three, the verdict of the jury must be unanimous and be signed by one of you as foreman. You may use the form provided at the end of these instructions for writing your verdict.
"There is appended to these instructions a form with alternate verdicts, one of which you will use: A. We the jury find the defendant not guilty; B. We the jury find the defendant guilty under instruction number one and fix his punishment at blank years in the penitentiary." Id., at 40-41.
8
E. g., 3 Record 15, 86-87.
9
E. g., id., at 56.
10
Although the Commonwealth does not challenge our jurisdiction to entertain petitioner's claims, we have examined the record and satisfied ourselves that jurisdiction exists. Petitioner's contemporaneous objection to the refusal of his request for an instruction on the presumption of innocence invoked "fundamental principle[s] of judicial fair play." App. 51. This should have sufficed to alert the trial judge to petitioner's reliance on due process principles. And in the face of petitioner's exclusive, explicit reliance on the Fourteenth Amendment in the Kentucky Court of Appeals, the Commonwealth has not argued that he has forfeited his right to raise federal claims.
The short opinion of the Kentucky Court of Appeals did not discuss federal decisions, relying instead on Kentucky authority. 551 S.W.2d, at 813-814 (1977). This reliance on state law apparently was due to the fact that the highest court of Kentucky settled the issue for that State almost 50 years ago. See, e. g., Mink v. Commonwealth, 228 Ky. 674, 15 S.W.2d 463 (1929). By way of contrast, the Court of Appeals quite explicitly refused to consider petitioner's argument that he was prejudiced by improper prosecutorial comments, on the ground that petitioner's failure to make a contemporaneous objection operated as a bar to appellate review. Thus, the Court of Appeals clearly denoted the one issue it refused to consider because of a procedural default. In view of both petitioner's contemporaneous objection to the failure to give the presumption-of-innocence charge, and the Kentucky Court of Appeals' apparent consideration of petitioner's federal claim, we will not strain the record in an effort to divest petitioner of his federal forum at this late date. See Cicenia v. Lagay, 357 U.S. 504, 507-508, n. 2, 78 S.Ct. 1297, 1299, n. 2, 2 L.Ed.2d 1523 (1958).
11
The Kentucky court remanded for resentencing because of the trial court's failure to order a statutorily required presentencing investigation. 551 S.W.2d, at 814.
12
The Coffin Court viewed the presumption of innocence as "an instrument of proof created by the law in favor of one accused, whereby his
innocence is established until sufficient evidence is introduced to overcome the proof which the law has created." 156 U.S., at 459, 15 S.Ct., at 405. As actual "evidence in favor of the accused," id., at 460, 15 S.Ct., at 405, it was distinguished from the reasonable-doubt standard, which merely described "the condition of mind produced by the proof resulting from the evidence in the cause." Ibid. Professor Thayer ably demonstrated the error of this distinction, pointing out that the so-called "presumption" is not evidence—not even an inference drawn from a fact in evidence—but instead is a way of describing the prosecution's duty both to produce evidence of guilt and to convince the jury beyond a reasonable doubt. Thayer, 560-563. Shortly after the appearance of Thayer's criticism, the Court, in a case in which the presumption-of-innocence instruction was given, retreated from its conclusion that the presumption of innocence is evidence to be weighed by the jury. See Agnew v. United States, 165 U.S. 36, 51-52, 17 S.Ct. 235, 241, 41 L.Ed. 624 (1897).
It is now generally recognized that the "presumption of innocence" is an inaccurate, shorthand description of the right of the accused to "remain inactive and secure, until the prosecution has taken up its burden and produced evidence and effected persuasion; i. e., to say in this case, as in any other, that the opponent of a claim or charge is presumed not to be guilty is to say in another form that the proponent of the claim or charge must evidence it." Wigmore 407. The principal inaccuracy is the fact that it is not technically a "presumption"—a mandatory inference drawn from a fact in evidence. Instead, it is better characterized as an "assumption" that is indulged in the absence of contrary evidence. Carr v. State, 192 Miss. 152, 156, 4 So.2d 887, 888 (1941); accord, McCormick 806.
13
Estelle v. Williams quite clearly relates the concept of presumption of innocence to the cognate requirements of finding guilt only on the basis of the evidence and beyond a reasonable doubt. 425 U.S., at 503, 96 S.Ct., at 1692. In this sense, it is possible to interpret the extended historical discussion of the presumption of innocence in Coffin v. United States, 156 U.S. 432, 453-460, 15 S.Ct. 394, 402-405, 39 L.Ed. 481 (1895), as supporting the conclusion that an instruction emphasizing for the jury the first of those two requirements is an element of Fourteenth Amendment due process, an essential of a civilized system of criminal procedure. See Johnson v. Louisiana, 406 U.S. 356, 360, n. 2, 92 S.Ct. 1620, 1623, n. 2, 32 L.Ed.2d 152 (1972).
14
We do not suggest that such prosecutorial comments, standing alone, would rise to the level of reversible error, an issue not raised in this case. But they are relevant to the need for carefully framed instructions designed to assure that the accused be judged only on the evidence.
15
As noted above, see supra, at 480-481, the trial court also refused petitioner's request for an instruction that the indictment was not evidence. This permitted the prosecutor's reference to the indictment to serve as one more extraneous, negative circumstance which may have influenced the jury's deliberations. Because of our conclusion that the cumulative effect of the potentially damaging circumstances of this case violated the due process guarantee of fundamental fairness in the absence of an instruction as to the presumption of innocence, we do not reach petitioner's further claim that the refusal to instruct that an indictment is not evidence independently constituted reversible error.
16
While we do not necessarily approve of the presumption-of-innocence instruction requested by petitioner, it appears to have been well suited to forestalling the jury's consideration of extraneous matters, that is, to performing the purging function described in Part II, above. The requested instruction noted that petitioner, "although accused [began] the trial with a 'clean slate.' " It emphasized that the law would permit "nothing but legal evidence presented before a jury to be considered in support of any charge against the accused."
17
See ABA Project on Standards for Criminal Justice, Function of the Trial Judge § 1.1(a) (App.Draft 1972):
"The trial judge has the responsibility for safeguarding both the rights of the accused and the interests of the public in the administration of criminal justice. The adversary nature of the proceedings does not relieve the trial judge of the obligation of raising on his own initiative, at all appropriate times and in an appropriate manner, matters which may significantly promote a just determination of the trial. The only purpose of a criminal trial is to determine whether the prosecution has established the guilt of the accused as required by law, and the trial judge should not allow the proceedings to be used for any other purpose."
18
The trial court had given the following instructions:
"Now, gentlemen, in the trial of this cause the court admonishes you to divest yourselves of any possible feeling or prejudice which you might have against the defendants as well as any sympathy that you might entertain for them on account of their misfortune, and try this case upon the law and the evidence as the court has endeavored to lay it down to you. When you do this you have responded to the high responsibilities which rest upon you as jurors. It matters not whether your verdict accords with public sentiment or not. You are supposed to be indifferent to any such influences and for such to influence you would be a failure to perform your duty. I need not say to you that the offense with which the defendants are charged is a grave one under the law, and if guilty they should be convicted, but while this is true they are entitled under the constitution and laws of your State to a fair and honest trial at your hands, and I feel sure that you will give them such." Record in Howard v. Fleming, O.T. 1903, Nos. 44 and 45, p. 120.
1
Although that decision rested on the erroneous notion that "the presumption of innocence is evidence in favor of the accused," 156 U.S., at 460; cf. J. Thayer, A Preliminary Treatise on Evidence 566-575 (1898), the rule in Coffin is surely sound.
2
"Before a federal court may overturn a conviction resulting from a state trial [on the basis of an error in the instructions to the jury], it must be established not merely that the instruction is undesirable, erroneous, or even 'universally condemned,' but that it violated some right which was guaranteed to the defendant by the Fourteenth Amendment." Cupp v. Naughten, 414 U.S. 141, 146, 94 S.Ct. 396, 400, 38 L.Ed.2d 368.
3
The instruction may also give the jury a "hint," 9 J. Wigmore, Evidence § 2511 (3d ed. 1940), that arrest, indictment, and arraignment should not count against the accused. But when an instruction on this point is necessary, it should be explicit. An instruction on the presumption of innocence is not an adequate substitute for stating expressly that the indictment is not evidence.
4
Cf. Lakeside v. Oregon, 435 U.S. 333, 342, 98 S.Ct. 1091, 1096, 55 L.Ed.2d 319 (STEVENS, J., dissenting).
5
Petitioner's lawyer asked the jurors the following questions:
"You all understand an indictment is only a charge, the initiating paper which brings us here today, and that in and of itself the indictment is no evidence, no way. It's merely a document that gets us here to this stage in the proceedings. Do you nderstand that's not to be considered as evidence?
* * * * *
"I'm sure you all will agree to this final question as regards the principle of innocence or reasonable doubt. Do each of you all agree and understand that Mike Taylor as he sits there today is a young man who is presumed to be innocent of the charge of second degree robbery, that this innocence has to be overcome by the Commonwealth to meet a standard of what we call beyond a reasonable doubt and that in the event that at the conclusion of the evidence, you have a reasonable doubt then it is your duty to return a verdict of not guilty. Do each of you understand the principle of innocence, the requirement of reasonable doubt? That reasonable doubt must be removed in order to find a verdict of guilty?
"Do each of you understand that principle and I try to make it as elementary as I can. Lawyers sometimes have a tendency to make things complicated but I hope I made it sufficiently clear.
"I take it by your silence that each of you does understand."
| 01
|
436 U.S. 519
98 S.Ct. 1955
56 L.Ed.2d 505
State of CALIFORNIA et al., Petitioners,v.SOUTHLAND ROYALTY COMPANY et al. EL PASO NATURAL GAS COMPANY, Petitioner, v. SOUTHLAND ROYALTY COMPANY et al. FEDERAL ENERGY REGULATORY COMMISSION, Petitioner, v. SOUTHLAND ROYALTY COMPANY et al.
Nos. 76-1114, 76-1133 and 76-1587.
Argued Dec. 7, 1977.
Reargued April 17, 1978.
Decided May 31, 1978.
Rehearing Denied Oct. 2, 1978.
See 439 U.S. 885, 99 S.Ct. 230, 231.
Syllabus
In 1925, Gulf Oil Corp. executed a lease under which it paid royalties for the exclusive right to produce and market oil and gas from certain land for 50 years. Thereafter, the lessors sold their mineral fee interest to respondents. In 1951 Gulf contracted to sell casinghead gas from the leased property to petitioner El Paso Natural Gas Co., an interstate pipeline. Subsequently, Gulf obtained from the Federal Power Commission a certificate of public convenience and necessity of unlimited duration authorizing the service to El Paso. When Gulf's original lease expired in 1975, its interest as lessee in the remaining gas reserves terminated and reverted to respondents. Just before the lease expired, respondents arranged to sell the remaining casinghead gas to an intrastate purchaser. El Paso, in order to preserve one of its sources of supply, petitioned the FPC for a determination that the remaining gas reserves could not be diverted to the intrastate market without abandonment authorization pursuant to § 7(b) of the Natural Gas Act (Act). The FPC agreed, holding that once gas began to flow in interstate commerce from a field subject to a certificate of unlimited duration, such flow could not be terminated unless the FPC authorized abandonment of service. On respondents' petition for review, the Court of Appeals reversed, holding that Gulf, as a tenant for a term of years, could not legally dedicate that portion of the gas that respondents might own upon the lease's expiration. Held: The FPC acted within its statutory powers in requiring that respondents obtain permission to abandon interstate service. The issuance of the certificate of unlimited duration created a federal obligation to serve the interstate market until abandonment authorization had been obtained, and the FPC reasonably concluded that under the Act the obligation to continue service attached to the gas, not as a matter of contract but as a matter of law, and ound all those with dominion and power of sale over the gas, including the lessors to whom it reverted. The service obligation imposed by the FPC survived the expiration of the private agreement that gave rise to the FPC's jurisdiction. Sunray Mid-Continent Oil Co. v. FPC, 364 U.S. 137, 80 S.Ct. 1392, 4 L.Ed.2d 1623. Pp. 523-531.
543 F.2d 1134, reversed and remanded.
Stephen R. Barnett, Washington, D. C., for petitioner Federal Energy Regulatory Commission.
Randolph W. Deutsch, San Francisco, Cal., for petitioners California et al.
J. Evans Attwell, Houston, Tex., for respondents.
John L. Hill, Atty. Gen., Austin, Tex., for State of Tex., as amicus curiae, by special leave of Court.
Mr. Justice WHITE delivered the opinion of the Court.
1
In 1925 the owners of certain acreage in Texas executed a lease which gave to Gulf Oil Corp., as lessee, the exclusive right to produce and market oil and gas from that land for the next 50 years.1 Gulf was entitled to drill wells, string telephone and telegraph wires, and build storage facilities and pipelines on the land. Gulf would also have "such other privileges as are reasonably requisite for the conduct of said operations." App. 135. In exchange, the owners were to receive a royalty based on the quantity of natural gas produced and the number of producing wells, as well as other royalties and payments. The following year, the owners of the property sold one-half of their mineral fee interest to respondent Southland Royalty Co. and the rest to other respondents.
2
In 1951 Gulf contracted to sell casinghead gas from the leased property to the El Paso Natural Gas Co., an interstate pipeline. After this Court's decision in Phillips Petroleum Co. v. Wisconsin, 347 U.S. 672, 74 S.Ct. 794, 98 L.Ed. 1035 (1954), Gulf applied for a certificate of public convenience and necessity from the Federal Power Commission authorizing the sale in interstate commerce of 30,000 Mcf per day. By order dated May 28, 1956, the Commission granted a certificate of unlimited duration, and this certificate was among those construed as "permanent" by this Court in Sun Oil Co. v. FPC, 364 U.S. 170, 175, 80 S.Ct. 1388, 1391, 4 L.Ed.2d 1639 (1960).2 Gulf entered into a second contract to sell additional volumes of gas to El Paso in 1972, and obtained a certificate of unlimited duration for those volumes in 1973.
3
The original 50-year lease obtained by Gulf expired on July 14, 1975, and, under local law, the lessee's interest in the remaining oil and gas reserves terminated and reverted to respondents. See Gulf Oil Corp. v. Southland Royalty Co., 496 S.W.2d 547 (Tex.1973). Just prior to expiration of the lease, respondents arranged to sell the remaining casinghead gas to an intrastate purchaser, at the higher prices available in the intrastate market.
4
El Paso, in order to preserve one of its sources of supply, then filed a petition with the Commission seeking a determination that the remaining gas reserves could not be diverted to the intrastate market without abandonment authorization pursuant to § 7(b) of the Natural Gas Act of 1938, 52 Stat. 824, as amended, 15 U.S.C. § 717f(b) (1976 ed.).3 The Commission agreed with this contention, relying on the "principle established by Section 7(b) that 'service' may not be abandoned without our permission and approval." El Paso Natural Gas Co., 54 F.P.C. 145, 150, 10 P.U.R. 4th 344, 348 (1975). The Commission held that respondents could not, upon termination of the lease, sell gas in intrastate commerce without prior permission from the Commission under § 7(b) of the Natural Gas Act and that Gulf was also obligated to seek abandonment permission. The Commission reaffirmed this view in an order denying rehearing, but added language insuring that any deliveries of gas to El Paso during the period that the Commission's order was under review would not constitute a dedication of those reserves to the interstate market. El Paso Natural Gas Co., 54 F.P.C. 2821, 11 P.U.R. 4th 488 (1975).
5
On respondents' petition for review, the Court of Appeals for the Fifth Circuit reversed. Southland Royalty Co. v. FPC, 543 F.2d 1134 (1976). The court held that Gulf, as a tenant for a term of years, could not legally dedicate that portion of the gas which Southland and other respondents might own upon expiration of the lease. Because of the importance of the question presented to the authority of the Federal Power Commission, now the Federal Energy Regulatory Commission, we granted the petition for certiorari. 433 U.S. 907, 97 S.Ct. 2970, 53 L.Ed.2d 1091. We reverse.
6
The fundamental purpose of the Natural Gas Act is to assure an adequate and reliable supply of gas at reasonable prices. Sunray Mid-Continent Oil Co. v. FPC, 364 U.S. 137, 147, 151-154, 80 S.Ct. 1392, 1400-1402, 4 L.Ed.2d 1623 (1960); Atlantic Refining Co. v. Public Serv. Comm'n of New York, 360 U.S. 378, 388, 79 S.Ct. 1246, 1253, 3 L.Ed.2d 1312 (1959). To this end, not only must those who would serve the interstate market obtain a certificate of public convenience and necessity but also, under § 7(b) of the Act:
7
"No natural-gas company shall abandon all or any portion of its facilities subject to the jurisdiction of the Commission, or any service rendered by means of such facilities, without the permission and approval of the Commission first had and obtained, after due hearing, and a finding by the Commission that the available supply of natural gas is depleted to the extent that the continuance of service is unwarranted, or that the present or future public convenience or necessity permit such abandonment." 15 U.S.C. § 717f(b) (1976 ed.).
8
The Commission may therefore control both the terms on which a service is provided to the interstate market and the conditions on which it will cease:
9
"An initial application of an independent producer, to make movements of natural gas in interstate commerce, leads to a certificate of public convenience and necessity under which the Commission controls the basis on which 'gas may be initially dedicated to interstate use. Moreover, once so dedicated there can be no withdrawal of that supply from continued interstate movement without Commission approval.' " Sunray Mid-Continent Oil Co., supra, 364 U.S., at 156, 80 S.Ct., at 1403.
10
The Act was "so framed as to afford consumers a complete, permanent and effective bond of protection from excessive rates and charges." Atlantic Refining Co. v. Public Serv. Comm'n of New York, supra, 360 U.S., at 388, 79 S.Ct., at 1253.
11
The jurisdiction of the Commission extends t the transportation of natural gas in interstate commerce or the sale in interstate commerce for resale to consumers. § 1(b), 15 U.S.C. § 717(b) (1976 ed.). Gas which flows across state lines for resale is dedicated to interstate commerce regardless of the intentions of the producer. California v. Lo-Vaca Co., 379 U.S. 366, 85 S.Ct. 486, 13 L.Ed.2d 357 (1965). The Court there approved an approach to questions of the Commission's jurisdiction based on the physical flow of the gas:
12
"We said in Connecticut Co. v. Federal Power Comm'n, 324 U.S. 515, 529, 65 S.Ct. 749, 89 L.Ed. 1150, 'Federal jurisdiction was to follow the flow of electric energy, an engineering and scientific, rather than a legalistic or governmental, test.' And that is the test we have followed under both the Federal Power Act and the Natural Gas Act, except as Congress itself has substituted a so-called legal standard for the technological one. Id., at 530-531, 65 S.Ct. 749." Id., at 369, 85 S.Ct., at 488.
13
The Court reasoned that in the circumstances of that case,4 "[t]he fact that a substantial part of the gas will be resold [in interstate commerce] . . . invokes federal jurisdiction at the outset over the entire transaction." Ibid.
14
In this litigation the Commission held that once gas began to flow in interstate commerce from a field subject to a certificate of unlimited duration, that flow could not be terminated unless the Commission authorized an abandonment of service. The initiation of interstate service pursuant to the certificate dedicated all fields subject to that certificate. The expiration of a lease on the field of gas did not affect the obligation to continue the flow of gas, a service obligation imposed by the Act.
15
We think that the Commission's interpretation of the abandonment provision of the Natural Gas Act is a permissible one. In Sunray Mid-Continent Oil Co. v. FPC, the Court recognized that the obligation to serve the interstate market imposed by a certificate of unlimited duration could not be terminated by private contractual arrangements. In that case, a producing company which had contracted with a pipeline to supply gas for 20 years sought a certificate from the Commission limited to that period. The Commission insisted on a permanent certificate; and this Court upheld its authority to do so, holding that even after the contract had expired, the producer would remain under an obligation to supply gas to the pipeline, unless permission to abandon service had been obtained. The obligation on the producer which survived after the contract term "will not be one imposed by contract but by the Act." 364 U.S., at 155, 80 S.Ct., at 1403. The obligation to continue the service despite the provisions of the sales contract was held essential to effectuate the purposes of the Act; otherwise producers and pipelines would be free to make arrangements that would circumvent the ratemaking and supply goals of the statute. Id., at 142-147, 80 S.Ct., at 1395-1399.
16
Similar principles control this litigation. This issuance of a certificate of unlimited duration covering the gas at issue here created a federal obligation to serve the interstate market until abandonment authorization had been obtained. The Commission reasonably concluded that under the statute the obligation to continue service attached to the gas, not as a matter of contract but as a matter of law and bound all those with dominion and power of sale over the gas, including the lessors to whom it reverted. Just as in Sunray, the service obligation imposed by the Commission survived the expiration of the private agreement which gave rise to the Commission's jurisdiction.
17
Respondents seek to distinguish Sunray on the ground that the producer in that case owned all of the gas covered by the certificate, but the central theme of that opinion is that the Act is concerned with the continuation of "service" rather than with particular sales of gas or contract rights. The Court traced the language of the statute to show that "all the matters for which a certificate is required—the construction of facilities or their extension, as well as the making of jurisdictional sales—must be justified in terms of a 'service' to which they relate." Id., at 150, 80 S.Ct., at 1400. The Court specifically noted that "§ 7(b) does not refer to the abandonment of the continuation of sales, but rather to the abandonment of 'services.' " Id., at 150 n. 17, 80 S.Ct., at 1400. The Commission "[had] long drawn a distinction between the underlying service to the public a natural gas company performs and the specific manifestation contractual relationship—which that service takes at a given moment." Id., at 152, 80 S.Ct., at 1401. Just as the federal obligation to continue service was held paramount to private arrangements in Sunray, that obligation must be recognized here. Once the gas commenced to flow into interstate commerce from the facilities used by the lessees, § 7(b) required that the Commission's permission be obtained prior to the discontinuance of "any service rendered by means of such facilities." Private contractual arrangements might shift control of the facilities and thereby determine who is obligated to provide that service, but the parties may not simply agree to terminate the service obligation without the Commission's permission.
18
Respondents contend that the gas at issue here was never impressed with an obligation to serve the interstate market because it was never "dedicated" to an interstate sale. The core of their argument is that "no man can dedicate what he does not own." Brief for Respondent Southland Royalty Co. et al. 8. This maxim has an appealing resonance, but only because it takes unfair advantage of an ambiguity in the term "dedicate." For most lawyers, as well as laymen, to "dedicate" is to "give, present, or surrender to public use." Webster's Third New International Dictionary 589 (1961). But gas which is "dedicated" pursuant to the Natural Gas Act is not surrendered to the public; it is simply placed within the jurisdiction of the Commission, so that it may be sold to the public at the "just and reasonable" rates specified by § 4(a) of the Act, 15 U.S.C. § 717c(a) (1976 ed.). Judicial review insures that those rates will not be confiscatory. See FPC v. Natural Gas Pipeline Co., 315 U.S. 575, 62 S.Ct. 736, 86 L.Ed. 1037 (1942); FPC v. Hope Gas Co., 320 U.S. 591, 602-603, 64 S.Ct. 281, 287-288, 88 L.Ed. 333 (1944). Thus, by "dedicating" gas to the interstate market, a producer does not effect a gift or even a sale of that gas, but only changes its regulatory status.5 Here, the lessee dedicated the gas by seeking and receiving a certificate of unlimited duration from the Commission. Respondents apparently had no objection, for they could have intervened in those proceedings but did not do so. El Paso Natural Gas Co., 54 F.P.C. 917, 919 n. 3 (1975).
19
Responde ts also appear to argue that they should not be viewed as "natural gas companies" with respect to the Waddell Ranch gas because they had not voluntarily committed any act that would place them within the Commission's jurisdiction. As we have seen, this argument is somewhat beside the point, for the obligation to serve the interstate market had already attached to the gas, and respondents became obligated to continue that service when they assumed control of the gas. In the Commission's language, "the dedication involved is not the dedication of an individual party or producer, but the dedication of gas." 54 F.P.C., at 149, 10 P.U.R. 4th, at 348.
20
In any event, we perceive no unfairness in holding respondents, as lessors, responsible for continuation of the service until abandonment is obtained. Respondents were "mineral lease owners who entered into a lease that permitted the lease holders to make interstate sales." 54 F.P.C., at 920. They did not object when Gulf sought a certificate from the Commission. Indeed, as the Commission pointed out, Gulf may even have been under a duty to seek interstate purchasers for the gas. Id., at 919. Gas leases are typically construed to include a duty diligently to develop and market, see, e. g., 5 H. Williams & C. Meyers, Oil and Gas Law § 853 (1977), and at the time the certificate was sought the interstate market was the major outlet for gas, see Atlantic Refining Co. v. Public Serv. Comm'n of New York, 360 U.S., at 394, 79 S.Ct., at 1256. Having authorized Gulf to make interstate sales of gas, respondents could not have expected those sales to be free from the rules and restrictions that from time to time would cover the interstate market. Cf. Louisville & Nashville R. Co. v. Mottley, 219 U.S. 467, 482, 31 S.Ct. 265, 270, 55 L.Ed. 297 (1911).6
21
In Sunray, the Court discussed the "practical consequences" for the consumer if the term of the sales contract limited the term of the certificate. 364 U.S., at 143, 142-147, 80 S.Ct., at 1395-1399. The Court reasoned:
22
"If petitioner's contentions . . . were . . . sustained, the way would be clear for every independent producer of natural gas to seek certification only for the limited period of its initial contract with the transmission company, and thus automatically be free at a future date, untrammelled by Commission regulation, to reassess whether it desired to continue serving the interstate market." Id., at 142, 80 S.Ct., at 1396.
23
A "local economy which had grown dependent on natural gas as a fuel" might experience disruption or significantly higher prices. Id., at 143, 80 S.Ct., at 1396. These observations are equally pertinent to private arrangements by way of leases. If the expiration of a lease to mineral rights terminated all obligation to provide interstate service, producers would be free to structure their leasing arrangements to frustrate the aims and goals of the Natural Gas Act.
24
Respondents suggest that the Commission could require a voluntary assumption of the service obligation by the lessor as a condition to certificates issued in the future. It is obvious that this solution does nothing to protect those communities presently depending on the flow of gas pursuant to a certificate of unlimited duration already issued. Moreover, the Court questioned in Sunray whether the conditioning power could be used to achieve indirectly what the Act did not authorize the Commission to do directly. Id., at 152, 80 S.Ct., at 1401. In light of this tension, the Court concluded that "the Commission's power to protect the public interest under § 7(e) need not be restricted to these indirect and dubious methods." Ibid.
25
We conclude that the Commission acted within its statutory powers in requiring that respondents obtain permission to abandon interstate service. "A regulatory statute such as the Natural Gas Act would be hamstrung if it were tied down to technical concepts of local law." United Gas Improvement Co. v. Continental Oil Co., 381 U.S. 392, 400, 85 S.Ct. 1517, 1522, 14 L.Ed.2d 466 (1965). By tying the concept of dedication to local property law, respondents would cripple the authority of the Commission at a time when the need for decisive action is greatest. Guided by Sunray, we believe that the structure and purposes of the Natural Gas Act require a broader view of the Commission's authority.
26
The decision of the Court of Appeals is reversed, and the cases are remanded for further proceedings consistent with this opinion.
27
So ordered.
28
Mr. Justice STEWART and Mr. Justice POWELL took no part in the consideration or decision of these cases.
29
[May 31, 1978]
30
Mr. Justice STEVENS, with whom THE CHIEF JUSTICE and Mr. Justice REHNQUIST join, dissenting.
31
The disparity between the regulated price of natural gas in the interstate market and the unregulated price in the Texas market gives this case its importance.1 The legal issue depends on the meaning of § 7(b), the abandonment provision of the Natural Gas Act.2 Speaking for the United States Court of Appeals for the Fifth Circuit, Judge Clark framed the question in this way:
32
"Does the lessee under a 50-year fixed-term mineral lease, by making certificated sales of leasehold natural gas in interstate commerce, thereby dedicate to interstate commerce the gas which remains in the ground at the end of the 50th year? " Southland Royalty Co. v. FPC, 543 F.2d 1134, 1136 (1976).
33
In my opinion, the Fifth Circuit correctly answered that question in the negative and ruled that the lessors did not have to seek the Commission's abandonment approval under § 7(b).
34
Through two separate leases executed in 1925, Gulf Oil Corp. obtained the right to explore, produce, and market oil and gas from specified acreage in Texas.3 The leases were for a fixed term of 50 years, and the reversionary interests in the minerals were shared by a number of fee owners (respondents), of which Southland Royalty Co. is the largest.4 As lessors of the property, respondents received a royalty based on the quantity of natural gas produced and the number of producing wells.5 Gulf's interest in the leased gas terminated, as a matter of Texas law, in 1975, and the mineral rights reverted to respondents. See Gulf Oil Corp. v. Southland Royalty Co., 496 S.W.2d 547 (Tex.1973).
35
In 1951, well before its leasehold interest expired, Gulf contracted to sell casinghead gas6 to the El Paso Natural Gas Co., an interstate pipeline.7 Thereafter, Gulf applied for, and the Federal Power Commission issued, a certificate of public convenience and necessity authorizing its sale of natural gas to El Paso, to be effective as long as Gulf continued its authorized operations in accordance with the statute and applicable regulations. See n. 13, infra. The price of the gas sold by Gulf to El Paso was then regulated by the Commission. The price of gas on the intrastate market was, however, not subject to such regulation. Shortly before the expiration of the leases, Southland and the other mineral fee owners therefore made plans to sell their casinghead gas in the intrastate market as soon as the leases expired.8 In order to preserve one of its sources of supply, El Paso filed a petition with the Commission seeking a determination that the leasehold gas had been dedicated to interstate commerce and could not be withdrawn from that market without Commission approval.9
36
The Commission held that Southland and the other mineral interest owners may not divert leasehold gas into the local market without prior Commission approval. The Commission noted that its decision was not supported by direct precedent, but reasoned that Gulf had made a dedication of the leasehold gas which imposed a service obligation on the gas itself, rather than on any particular party.10
37
On respondents' petition for review, the Court of Appeals reversed. The court held that Gulf, as a tenant for a term of years, could not legally dedicate that portion of the gas which Southland and the other reversioners might own upon expiration of the lease. It rejected the Commission's argument that since Gulf had an unquantified right during the 50-year term, it had a legal right to withdraw all of the leased gas, and therefore was empowered to dedicate the entire supply to the interstate market. The court reasoned that Gulf's interest in the gas was contingent upon its removal within 50 years and that its right to dedicate the gas to interstate commerce was subject to the same contingency.11 The Commission's alternative argument that the acceptance of royalty payments constituted ratification of the dedication to interstate commerce was rejected on the ground that the holders of the reversionary interest had no right to control Gulf's sale of the gas during the lease term.
38
In this Court, petitioners12 argue that a lessee's acceptance of a certificate of convenience and necessity of unlimited duration creates a service obligation which the lessors may never abandon without Commission authorization. They rely primarily on this Court's decision in Sunray Mid-Continent Oil Co. v. FPC, 364 U.S. 137, 80 S.Ct. 1393, 4 L.Ed.2d 1623; secondarily on somewhat analogous cases arising under the Interstate Commerce Act; and finally on their analysis of the practical consequences of the Court of Appeals' interpretation of the statute. I consider these arguments in turn.
39
* Although Sunray Oil is of immediate concern, that decision must be considered in the context of the jurisdictional development of the Natural Gas Act that began in 1954 with Phillips Petroleum Co. v. Wisconsin, 347 U.S. 672, 74 S.Ct. 794, 98 L.Ed. 1035. In Phillips, the Court held that sales of natural gas by an independent producer to an interstate pipeline were subject to the jurisdiction of the Federal Power Commission. The Court rejected the independent producer's claim that the Act was concerned only with regulating interstate pipelines and, instead, held that the FPC's jurisdiction was based on the broader concept of interstate "sales" of natural gas. One obvious result of Phillips was the sudden expansion of the Commission's jurisdictional responsibilities. Permian Basin Area Rate Cases, 390 U.S. 747, 756-757, 88 S.Ct. 1344, 1354-1355, 20 L.Ed.2d 312.13 Less obviously, but perhaps more importantly, it marked the first step in the development of a regulatory scheme for natural gas that is unique in public utility regulation. As Mr. Justice Harlan observed, "[p]roducers of natural gas cannot usefully be classed as public utilities." Id., at 756, 88 S.Ct., at 1354. "Unlike other public utility situations, the relationship which ultimately may subject the independent producer to regulation under the Natural Gas Act has its usual inception in a contract between a producer . . . of natural gas . . . and an interstate pipeline . . . ." 5 W. Summers, Law of Oil and Gas § 924, p. 7 (1966). But while the voluntary sale of natural gas to an interstate pipeline is the event that normally activates the jurisdiction of the Commission,14 the contractual terms of the sale do not define the limits of that jurisdiction.
40
In Sunray Oil, the Court held that a natural gas company had made a dedication of gas to interstate commerce of unlimited duration even though its sales contract with the interstate pipeline was for a fixed term of 20 years. The company had applied to the Commission for a limited certificate of convenience and necessity authorizing interstate sales only for the term of the contra t. The Commission, however, tendered the company an unlimited certificate. The Court ruled that by accepting that certificate and by exercising the authority granted by it, the company undertook a service obligation that survived the expiration of the 20-year contract and that it could not abandon without Commission approval.
41
The Court explained that the company's statutory obligation was not limited to the contractual commitment it had voluntarily assumed. "[T]he service in which the producer engages [the sale of natural gas] is distinct from the contract which regulates his relationship with the transmission company in performing the service." 364 U.S., at 153, 80 S.Ct., at 1401. The duty to continue that service is an obligation imposed by the Act, not by contract. Id., at 155, 80 S.Ct., at 1403.15
And later in the opinion the Court added:
42
"An initial application of an independent producer, to make movements of natural gas in interstate commerce, leads to a certificate of public convenience and necessity under which the Commission controls the basis on which 'gas may be initially dedicated to interstate use. Moreover, once so dedicated there can be no withdrawal of that supply from continued interstate movement without Commission approval. The gas operator, although to this extent a captive subject to the jurisdiction of the Commission, is not without remedy to protect himself.' [Atlantic Refining Co. v. Public Serv. Comm'n of New York,] 360 U.S. at page 389, 79 S.Ct. at page 1254, 3 L.Ed.2d 1312." Id., at 156, 80 S.Ct., at 1403.
43
The petitioners argue that like reasoning controls this case. Because the certificate issued to Gulf was not limited by the duration of its leasehold interests, they contend that respondents must supply leasehold gas to El Paso until they obtain permission to abandon that service pursuant to § 7(b) of the Act. The argument misconceives the nature of the issue resolved by Sunray.
44
In Sunray the issue before the Court was whether a private contract between a producer and a pipeline company could supplant the Commission's authority to determine how long the producer's gas would be subject to interstate dedication. There was no question that the producer had dedicated the gas to the interstate market, and there was no question that the producer owned the gas that he had dedicated. In the case at hand, however, respondents have not themselves dedicated any gas to interstate commerce, and they strenuously urge that Gulf's power to dedicate their gas was limited by the character of Gulf's leasehold interest. The issue here, therefore, is one step removed from that in Sunray. Nevertheless petitioners claim that Sunray controls. Their "syllogism" is that since a private contract is not determinative of the scope of a dedication, a private lease should not be determinative of whether there has been a dedication. But the syllogism is a non sequitur.16 Moreover, Sunray cannot, consistently with the purposes and structure of the Natural Gas Act, be expanded in this fashion.
45
The Natural Gas Act, as this Court has repeatedly stated, does not represent an exercise of Congress' full power under the Commerce Clause. See, e. g., FPC v. Panhandle Eastern Pipe Line Co., 337 U.S. 498, 502, 69 S.Ct. 1251, 1254, 93 L.Ed. 1499. Instead, § 1(b) limits the Act's reach to interstate transportation and sales of natural gas, 15 U.S.C. § 717(b) (1976 ed.), and this same restriction is reflected in the abandonment provision. Section 7(b) provides that "[n]o natural gas company shall abandon all or any portion of its facilities subject to the jurisdiction of the Commission, or any service rendered by means of such facilities . . . ." 15 U.S.C. § 717f(b) (1976 ed.) (emphasis added). "Natural gas company," in turn, is defined as "a person engaged in the transportation of natural gas in interstate commerce, or thesale in interstate commerce of such gas for resale." 15 U.S.C. § 717a(6) (emphasis added).
46
While Gulf, like the oil company in Sunray, is a "natural gas company" within this definition, it is clear that, at least prior to the lease termination, the respondents were not. They clearly did not transport gas, and their retention of a standard, fixed royalty interest did not constitute a "sale" of gas in interstate commerce.17 This latter point follows from the rule that the royalty provisions of an oil and gas lease are not subject to the Natural Gas Act. Mobil Oil Corp. v. FPC, 149 U.S.App.D.C. 310, 463 F.2d 256 (1972), cert. denied sub nom. Mobile Oil Corp. v. Matzen, 406 U.S. 976, 92 S.Ct. 2409, 32 L.Ed.2d 676. The reasoning of the Court of Appeals in that case is applicable here:
47
"When we come to an ordinary lease by the landowner to the producer there is neither a 'customary' sale in interstate commerce nor its equivalent in economic effect. Such a lease is a transaction that is itself customary and conventional, but one that precedes the 'conventional' sales in interstate commerce with which Congress was concerned, indeed even precedes the 'production and gathering' which § 1(b) visualized as preceding the sale in interstate commerce over which jurisdiction was being established.
48
* * * * *
49
"The FPC is limited by the provision establishing its jurisdiction, and we do not find in that provision, rooted as it is in a sale in interstate commerce, any basis for reaching out to cover the landowner's lease or its royalty payments."18
50
The Commission does not challenge this rule; instead, it argues that "lessors who succeed to the interest of their natural gas company lessees would be natural gas companies within the meaning of the Act." Brief for Petitioner in No. 76-1587, p. 29. But neither the Commission nor any court has held that a lessor succeeds to the interest of his lessee when a lease expires by its terms. The Commission has held that a purchaser or assignee charged with notice of the burdens imposed on the acquired estate by its former owner must seek abandonment approval under § 7(b). See, e. g., Cumberland Natural Gas Co., 34 F.P.C. 132 (1965). The Commission has reasoned that, in these situations, the successor-in-interest has "stepp[ed] into the shoes of his predecessor." Graridge Corp., 30 F.P.C. 1156, 1162 (1963); see also Ph llips Petroleum Co. v. Federal Power Comm'n, 556 F.2d 466 (CA10 1977); but see El Paso Natural Gas Co. v. Bass, 48 F.P.C. 1269 (1972).
51
That analysis does not apply in this case. The character of the fee owner's reversionary interest was defined when the leasehold estate was created. Respondents did not "step into" Gulf's leasehold interest; that interest expired. This is, of course, merely another way of expressing the well-settled doctrine of property law that "one having a limited estate in land cannot, as against the person entitled in reversion or remainder, create an estate to endure beyond the normal time for termination of his own estate." 1 H. Tiffany, Law of Real Property § 153, p. 247 (3d ed. 1939).19
52
Petitioners rejoin that strict concepts of property law or state definitions of ownership cannot control the scope of the federal Act. But this proposition, though valid, does not support petitioners' position. As the Court has previously stated, "[a] regulatory statute such as the Natural Gas Act would be hamstrung if it were tied down to technical concepts of local law," United Gas Improvement Co. v. Continental Oil Co., 381 U.S. 392, 400, 85 S.Ct. 1517, 1522, 14 L.Ed.2d 466, and the Court must instead look to the economic reality of the transaction. But in this case respondents, as royalty owners, had "no control over any incident of such [gas] sale either as to the quantity to be sold, the price to be paid, the identity of the purchaser or whether it [should] be sold in interstate or intrastate commerce." Mobil Oil Corp. v. FPC, supra, 149 U.S.App.D.C., at 316, 463 F.2d, at 262. There is no claim that the lease was terminated prematurely in order to withdraw the gas from the interstate market or to evade the Commission's ratemaking authority. And, in fact, this case does not even present the specter of evasion or bad faith since the lease was negotiated at arm's length and executed years before the statute was passed.
53
My conclusion that Congress did not intend to allow a lessee to dedicate a lessor's gas in this situation is supported not only by the statutory provisions discussed above, but also by the legislative history which clearly counsels restraint in judicial interpretation of the Act. Both the House and Senate Reports state that the Act only "provides for regulation along recognized and more or less standardized lines. There is nothing novel in its provisions, and it is believed that no constitutional question is presented." H.R.Rep.No.709, 75th Cong., 1st Sess., 3 (1937); S.Rep.No.1162, 75th Cong., 1st Sess., 3 (1937). I cannot believe that, in a statute described as containing "nothing novel," Congress intended to allow a natural gas company, operating under a fixed-term lease, to impose a permanent service burden on the royalty owner over that party's objection.
II
54
Based on the preceding analysis, it is apparent that this Court's railroad abandonment cases do not support petitioners. They rely on Smith v. Hoboken R., Warehouse & S.S. Connecting Co., 328 U.S. 123, 66 S.Ct. 947, 90 L.Ed. 1123, and Thompson v. Texas Mexican R. Co., 328 U.S. 134, 66 S.Ct. 937, 90 L.Ed. 1132, two companion cases decided in 1946, in which the Court held that § 1(18) of the Interstate Commerce Act20 required Commission approval of the abandonment of the lessee's operations and the lessor had standing to seek that approval.21 These cases make it c ear that a lessee's statutory duty to continue operations until a regulatory commission has given its approval to a proposed abandonment may qualify the contractual rights of the lessor. The cases do not however, shed any light on the question whether a regulated lessee may impose any statutory duties on an unregulated lessor.
55
The railroad cases did not involve any question concerning the scope of the dedication to interstate commerce, or any attempt to impose an obligation on a party which was not subject to the Commission's jurisdiction. The question was which of the two companies subject to the jurisdiction of the Commission should operate—not whether the operation should continue. Neither the lessor nor the lessee wanted to have the regulated operation cease; both recognized that the common carrier's obligation to provide service to the public existed independently of the lease and survived its termination. In short, in neither case was there any question but that the lessor was a "common carrier" under the Interstate Commerce Act and subject to the obligations imposed by the Act.
56
The importance of this distinction is highlighted by subsequent lower court cases interpreting the railroad abandonment provision of § 1(18). In particular, the Court of Appeals for the Second Circuit has concluded that Hoboken and Thompson do not "hold or imply that a noncarrier, by merely leasing its properties to a carrier, becomes a 'carrier by railroad,' thus subjecting itself to an obligation to carry on the operations of its lessee's railroad . . . ." Meyers v. Famous Realty, Inc., 271 F.2d 811, 814 (1959), cert. denied, 362 U.S. 910, 80 S.Ct. 681, 4 L.Ed.2d 619;22 see also City of New York v. United States, 337 F.Supp. 150, 153 (EDNY 1972) (three-judge panel); Friendly, Amendment of the Railroad Reorganization Act, 36 Colum.L.Rev. 27, 47-49 (1936). Thus, instead of supporting the petitioners' position in this case, the cases dealing with the railroad abandonment merely illustrate the extent to which petitioners' claim is unprecedented.
III
57
Finally, petitioners argue that the Court of Appeals' ruling should be reversed in order to prevent parties from diverting natural gas production from the interstate market at will. The answer to this contention is implicit in the discussion of Sunray and the Natural Gas Act, Part I, supra, but I will address it separately because this Court has long recognized that one of the central purposes of the Act is "to protect consumers against exploitation at the hands of natural gas companies." FPC v. Hope Gas Co., 320 U.S. 591, 610, 64 S.Ct. 281, 291, 88 L.Ed. 333. The Commission argues that unless abandonment authorization is required in this case, the natural gas companies will be able to manipulate and restructure their leases to avoid the Commission's ratemaking authority. There are three answers to this concern.
58
First, there are few short-term development leases in existence. The magnitude of the capital investment required for exploration and development of oil and gas production makes it extremely unattractive for any natural gas company to accept a short-term production lease. Indeed, the literature indicates that the fixed-term leases involved in this case are an almost extinct species, and that development leases typically survive for as long as production is economically feasible.23
59
Second, nothing in the Fifth Circuit's decision affects the Commission's power to require future applicants for certificates to describe the details of their supply arrangements and to withhold approval pending the receipt of appropriate evidence of consent to an unlimited dedication by all interested parties. See Sunray Mid-Continent Oil Co. v. FPC, 364 U.S. 137, 80 S.Ct. 1393, 4 L.Ed.2d 1623.24
60
Finally, the decision of the Fifth Circuit does not in any way allow natural gas companies to exercise an "unregulated choice" over whether to continue serving the interstate market. See FPC v. Moss, 424 U.S. 494, 506, 96 S.Ct. 1003, 1010, 47 L.Ed.2d 186 (BURGER, C. J., concurring in judgment). The Commission's error in this case was its conclusion that the need to obtain abandonment authorization was "like an ancient covenant running with the land," El Paso Natural Gas Co., 54 F.P.C. 145, 150, 10 P.U.R. 4th 344, 348 (1975), which enabled a lessee for a limited term to impose a burden on the lessor's interest after the expiration of the lease. As both the language and history of the Act show, Congress did not intend to work such a revolution in property interests touching natural gas. It confined the applicability of the abandonment provisions to "natural gas companies." But that term is sufficiently flexible to enable the Commission to analyze the economic and practical significanc of transfers of interests in natural gas regardless of the particular label applied to any transfer. See United Gas Improvement Co. v. Continental Oil Co., 381 U.S. 392, 85 S.Ct. 1517, 14 L.Ed.2d 466.25 The Commission has ample authority to prevent manipulation of the Act's regulatory provisions.
61
Despite the Act's flexibility, I would not stretch it to reach this case. The lessors, as royalty owners, had no control over the interstate sales, and even with the lease running without interruption, the lessee's interest was limited to a 50-year term. There is no authority in the statute for imposing a permanent service obligation on the lessors in this situation. Accordingly I would affirm the decision of the Court of Appeals.
1
The "Waddell" lease, executed on July 14, 1925, covered 45,771 acres in Crane County, Tex. In the same year Gulf executed an identical lease, the "Goldsmith" lease, with the owners of 19,840 acres in Ector County, Tex. The gas remaining at the expiration of both leases is at issue in this litigation, but because the parties are in agreement that there are no material differences in the language or history of these leases, we shall discuss only the Waddell lease.
2
The Commission's order of May 28, 1956, had granted more than 100 certificates with identical language. This Court's decision in Sun Oil, though prompted by a dispute over a specific certificate, interpreted the Commission's order as it applied to the entire "batch of certificates." 364 U.S., at 175, 80 S.Ct., at 1391.
3
Texaco, Inc., owner of a 25% interest in the reversion under the Goldsmith Lease, see n. 1, supra, also filed a petition with the Commission, seeking a declaration that upon expiration of the lease the fee owner would be free to sell the remaining gas to intrastate purchasers. Although Texaco's interest was adverse to El Paso, Texaco's petition raised the same issues as El Paso's petition and was therefore consolidated with it. The State of California and its Public Utilities Commission intervened in the consolidated proceeding.
4
In California v. Lo-Vaca Co., an interstate pipeline had entered into a private contractual arrangement with a producer that all gas purchased pursuant to the agreement would be for internal use only. Despite this explicit reservation intended to remove this gas from the jurisdiction of the Commission, the Court held that the Commission had jurisdiction over the entire transaction because at least some part of the contract gas, physically commingled in the pipeline with gas from other sources, would be sold to other interstate purchasers.
5
An analogy in state law may be found in the power of a tenant to seek a change in the zoning status of leased property. See, e. g., Newport Associates, Inc. v. Solow, 30 N.Y.2d 263, 332 N.Y.S.2d 617, 283 N.E.2d 600 (1972), cert. denied, 410 U.S. 931, 93 S.Ct. 1372, 35 L.Ed.2d 593 (1973); Richman v. Philadelphia Zoning Board of Adjustment, 391 Pa. 254, 258, 137 A.2d 280, 283 (1958).
6
Moreover, the type of regulation which the Commission has here imposed is not without precedent. As we recognized in Sunray, § 7(b) of the Natural Gas Act "follows a common pattern in federal utility regulation." 364 U.S., at 141-142, 80 S.Ct., at 1395. Section 1(18) of the Interstate Commerce Act, 49 U.S.C. § 1(18), similarly provides that "no carrier by railroad subject to this chapter shall abandon all or any portion of a line of railroad, or the operation thereof, unless and until there shall first have been obtained from the commission a certificate that the present or future public convenience and necessity permit of such abandonment." At a very early date the Interstate Commerce Commission interpreted this provision to require that a certificate of abandonment be obtained prior to the cessation of operations over leased tracks, even though the lease had expired by its own terms. Chicago & Alton R. Co. v. Toledo, Peoria & Western R. Co., 146 I.C.C. 171 (1928). In Lehigh Valley R. Co. Proposed Abandonment of Operation, 202 I.C.C. 659 (1935), the Commission held that even a lessor which had ceased to operate as a railroad prior to enactment of the Interstate Commerce Act would be required to seek permission to abandon a railroad line which had reverted to it upon expiration of a lease. Long before Gulf applied for its certificate, this Court approved these decisions. See Smith v. Hoboken R., Warehouse & S. S. Connecting Co., 328 U.S. 123, 130, 66 S.Ct. 947, 952, 90 L.Ed. 1123 (1946) ("[A] certificate is required under § 1(18) whether the lessee or the lessor is abandoning operations"); Thompson v. Texas Mexican R. Co., 328 U.S. 134, 144-145, 66 S.Ct. 937, 944, 90 L.Ed. 1132 (1946) ("[T]he fact that the trackage contract was entered into in 1904 prior to the passage of the Act is immaterial; the provisions of the Act, including § 1(18), are applicable to contracts made before as well as after its enactment"). These precedents demonstrate that the specific type of obligation imposed here—an obligation to continue interstate service until abandonment has been obtained—is within the range of regulatory possibilities that must be anticipated b one profiting from interstate operations.
1
At the time the Court of Appeals for the Fifth Circuit delivered its opinion in this case, there was a "gross imbalance between controlled prices at which interstate natural gas [was] sold and the substantially higher values set by the free market for gas . . . ." Southland Royalty Co. v. FPC, 543 F.2d at 1134, 1135 (1976) (citation omitted). Although the Federal Power Commission (now the Federal Energy Regulatory Commission) has taken some action to correct this imbalance, see Natural Rates for Natural Gas, 56 F.P.C. ---, 15 P.U.R. 4th 21 (1976), aff'd sub nom. American Public Gas Assn. v. FPC, 186 U.S.App.D.C. 23, 567 F.2d 1016 (1977), a "substantial disparity" still exists. Brief for Petitioner in No. 76-1587, pp. 6-7, n. 9.
2
"No natural-gas company shall abandon all or any portion of its facilities subject to the jurisdiction of the Commission, or any service rendered by means of such facilities, without the permission and approval of the Commission first had and obtained, after due hearing, and a finding by the Commission that the available supply of natural gas is depleted to the extent that the continuance of service is unwarranted, or that the present or future public convenience or necessity permit such abandonment." 15 U.S.C. § 717f(b) (1976 ed.).
3
See ante, at 521 n. 1.
4
Southland acquired one-half of the mineral fee interest in the Waddell lease in 1926; the remaining fractional interests are owned by over 100 other companies and persons. The ownership of the reversionary mineral estate of the Goldsmith lease is also dispersed; Texaco, Inc., is apparently the largest single owner, having acquired a one-fourth interest in 1929.
5
Respondents' royalty interest was 1/8 of 4¢ per Mcf (thousand cubic feet) for all casinghead gas produced and sold from the lease; they had no right to take gas in kind or to receive a royalty based on the price received by the lessee for the gas. App. 135-140.
6
Casinghead gas is found in association with crude oil; it is to be distinguished from "gas-well gas."
7
Gulf sold its gas from the Goldsmith lease to Phillips Petroleum Co., which processed the gas and sold it to El Paso, which in turn transported he gas in interstate commerce for subsequent resale. For the purposes of this case, the parties have agreed that there are no material differences between the Goldsmith and Waddell leases. See ante, at 521 n. 1.
8
Southland entered into a contract with Intratex Gas Co. and Intrastate Pipeline Co., which primarily serves a distributor in Houston, Tex.
9
Docket No. CP75-209, commenced by El Paso on January 20, 1975, related to the Waddell lease. Docket No. CI75-594, relating to the Goldsmith lease, was commenced by Texaco on April 8, 1975. Although the interest of Texaco was adverse to El Paso, its petition for a declaratory order raised the same issue as did the El Paso petition in No. CP75-209.
10
"In our opinion the various mineral interest reversioners may not sell gas from the two leaseholds in intrastate commerce without prior permission and approval of the Commission. Although we have discovered no case directly on point, we are of the opinion that the cases and the purpose of the Natural Gas Act inevitably lead to this view. . . . [T]he dedication involved is not the dedication of an individual party or producer, but the dedication of gas." El Paso Natural Gas Co., 54 F.P.C. 145, 149, 10 P.U.R. 4th 344, 347-348 (1975).
11
"To the extent that Gulf's present interest in all of the natural gas is contingent upon its removal within 50 years, the right to dedicate that gas removed to interstate commerce is likewise contingent. Whatever gas is left under the lease lands at the end of the 50 years is not Gulf's gas and, by the plain terms of the limited leasehold estate, never belonged to it from day one forward." 543 F.2d, at 1138.
12
Petitioners in this case are the Commission, El Paso, and the State of California, which intervened in the suit below on the ground that El Paso was one of its major suppliers of natural gas.
13
After the decision in Phillips, the natural gas companies already supplying gas to the interstate market had to apply for Commission approval of that service. The certificate issued to Gulf in this case in 1956 was one of a large number which were issued in a post-Phillips consolidated proceeding. The certificate stated in relevant part:
"The Commission orders
"(A) A certificate of public convenience and necessity be and is hereby issued, upon the terms and conditions of this order, authorizing the sale by Applicant of natural gas in interstate commerce for resale, together with the operation of any facilities, subject to the jurisdiction of the Commission, used for the sale of natural gas in interstate commerce, as hereinbefore described and as more fully described in the application and exhibits in this proceeding.
"(B) The certificate issued herein shall be deemed accepted and of full force and effect, unless refused in writing and under oath by Applicant within 30 days from issuance of this order.
"(C) The certificate is not transferable and shall be effective only so long as Applicant continues the acts or operations hereby authorized in accordance with the provisions of the Natural Gas Act, and the applicable rules, regulations and orders of the Commission." App. 37. See Sun Oil Co. v. Federal Power Comm'n, 364 U.S. 170, 171-172, 80 S.Ct. 1388, 1389-1390, 4 L.Ed.2d 1639.
In 1972, Gulf entered into a second contract with El Paso covering gas produced from wells covered by the leases in question, and the Commission granted Gulf another certificate covering sales under that contract.
14
As this Court has previously noted, "the scheme of the Act was one which built the regulatory system on a foundation of private contracts." Sunray Oil, 364 U.S., at 154, 80 S.Ct., at 1402; see also United Gas Pipe Line Co. v. Mobil Gas Service Corp., 350 U.S. 332, 76 S.Ct. 373, 100 L.Ed. 373.
15
The Court's statement was made in response to the company's argument that United Gas Pipe Line Co. v. Mobil Gas Service Corp., supra, established the principle that the Act preserved the integrity of private contracts, and that therefore the Commission should not be allowed to compel it to enlarge its contractual undertaking. The holding in Mobil was that the seller could not file for a rate increase that would violate the terms of his contract. In Sunray, however, no violation of an existing contract was required or permitted by the Commission.
16
The fact that Sunray's contract with its customers did not limit the scope of Sunray's dedication of its own gas does not logically compel any answer to the question whether Gulf had the power to dedicate gas owned by its lessors after the termination of the lease. See generally Conine & Niebrugge, Dedication under the Natural Gas Act: Extent and Escape, 30 Okla.L.Rev. 735, 821-825 (1977).
17
Of course, the sale at issue is the alleged sale in this case; it is irrelevant that some of the respondents may have sold natural gas from other fields under other contracts in interstate commerce for resale.
18
149 U.S.App.D.C., at 316-317, 463 F.2d, at 262-263. As the District of Columbia Circuit correctly observed, the issue is the extent to which royalty payments under a lease are related to the concept of a jurisdictional "sale" under the Act. An entirely different analysis might be appropriate if the lessee or lessor sought to abandon permanent facilities for the interstate transportation of gas, such as a pipeline.
19
Petitioners argue that, since Gulf had the right to extract all the natural gas from the leased land, the respondents are, in effect, stepping into the remainder of a burdened interest. This argument is based on a highly selective reading of the lease agreement which simply ignores the express limitation placed on the right to extract "all" the gas. Gulf only had the right to produce and market the gas it found, developed, and sold during the specified 50-year term. See Southland Royalty Co. v. FPC, supra, 543 F.2d, at 1137-1138.
20
Section 1(18) provides in part:
"[N]o carrier by railroad subject to this chapter shall abandon all or any portion of a line of railroad, or the operation thereof, unless and until there shall first have been obtained from the Commission a certificate that the present or future public convenience and necessity permit of such abandonment." 49 U.S.C. § 1(18).
21
In both cases the Court relied on the alternative ground that the lessee was the debtor in a reorganization proceeding in which § 77 of the Bankruptcy Act required the Commission to prepare the plan of reorganization. See Hoboken, 328 U.S., at 130-133, 66 S.Ct., at 951-953; Thompson, 328 U.S., at 142-144, 66 S.Ct., at 943-944. In the Thompson case, which involved a trackage agreement, the Court also relied on the Commission's jurisdiction under § 5(2)(a) of the Interstate Commerce Act to fix the terms and conditions, including rentals, for any trackage agreements created after the effective date of the Transportation Act of 1940. See 328 U.S., at 146-150, 66 S.Ct., at 944-947.
22
The Commission points out that in Myers the lessee had previously obtained abandonment authorization from the Interstate Commerce Commission. The Second Circuit did not, however, rely on that fact, see 271 F.2d, at 814, and, in any event, I fail to see how that distinction supports the Commission's theory in this case, since it argues that the gas supply itself was dedicated to interstate commerce. Furthermore, it should be noted that Gulf did apply for abandonment authorization, an application which the Commission staff considered "superfluous." 54 F.P.C., at 151, 10 P.U.R. 4th, at 349. The Commission ruled that the application was appropriate on the ground that "[w]e should have all the significant parties before us . . . ." Ibid. The question whether Gulf was under a duty to request abandonment approva is not before us.
23
See 3 H. Williams, Oil and Gas Law § 601.1 (1977); Walker, The Nature of the Property Interests Created by an Oil Gas Lease in Texas, 7 Texas L.Rev. 1 (1928).
24
Contrary to the Court's suggestion, this case has nothing whatsoever to do with the question in Sunray of "whether the conditioning power could be used to achieve indirectly what the Act did not authorize the Commission to do directly." Ante, at 530. In Sunray petitioner argued that the Commission could only approve what the applicant itself proposed. The Court rejected that argument. It then observed in passing that if it had accepted petitioner's position, the Commission could probably not have used its "conditioning" power to award a certificate of longer duration than that prayed for, since that would simply allow the Commission to accomplish indirectly what it could not accomplish directly.
No one questions in this case the Commission's direct power to withhold a certificate pending receipt of evidence that the applicant has the power to make an unlimited dedication. Indeed, no one has ever suggested that that might be an issue. Sunray's observation with respect to indirect power is, therefore, simply irrelevant.
25
In United Gas Improvement, producers of gas had long-term sales contracts with an interstate pipeline. After the Phillips decision, see supra, at 535-536, the parties withdrew their sales contracts and entered into lease arrangements which substantially preserved the terms of the prior contracts. The Court held that these transactions, however characterized by the parties, amounted to "sales" under the Act. Similarly, parties to a contract cannot avoid the Commission's jurisdiction simply by stating that their sale of natural gas in interstate commerce " 'is not subject to the jurisdiction of the Federal Power Commission.' " See California v. Lo-Vaca Co., 379 U.S. 366, 367-368, 85 S.Ct. 486, 13 L.Ed.2d 357.
| 78
|
436 U.S. 604
98 S.Ct. 2002
56 L.Ed.2d 570
Cecil D. ANDRUS, Secretary of the Interior, Petitioner,v.CHARLESTONE STONE PRODUCTS CO., INC.
No. 77-380.
Argued April 18, 1978.
Decided May 31, 1978.
Syllabus
The basic federal mining statute, 30 U.S.C. § 22, which derives from an 1872 law, provides that "all valuable mineral deposits in lands belonging to the United States . . . shall be free and open to exploration and purchase." Respondent, after purchasing a number of mining claims, discovered water on one of them (Claim 22) and used the water to prepare for commercial sale the sand and gravel removed from the claims. On review of unfavorable administrative decisions against respondent's claims in proceedings challenging their validity, the District Court held, inter alia, that respondent was entitled to access to Claim 22's water, and the Court of Appeals affirmed, adding sua sponte that Claim 22 itself is valid because of the water thereon. Held : Water is not a "valuable mineral" within the meaning of 30 U.S.C. § 22, and hence is not a locatable mineral thereunder. Pp. 610-617.
(a) The fact that water may be a "mineral" in the broadest sense of that word is not sufficient for a holding that a claimant has located a "valuable mineral deposit" under § 22; nor is the fact that water may be valuable or marketable enough to support a mining claim's validity based on the presence of water. In order for a claim to be valid, the substance discovered must not only be a "valuable mineral" within the dictionary definition of those words, it must also be the type of valuable mineral that the 1872 Congress intended to make the basis of a valid claim. Pp. 610-611.
(b) The relevant statutory provisions, which reflect the view that water is not a locatable mineral under the mining statutes and that private water rights on federal lands are to be governed by state and local law and custom; the history out of which such statutes arose; the decisions of the Department of the Interior construing the statutes in line with such view; and the practical problems that would arise if two overlapping systems for acquisition of private water rights were permitted, all support the conclusion that Congress did not intend water to be locatable under the federal mining law. Pp. 611-617.
553 F.2d 1209, reversed.
Sara S. Beale, Washington, D. C., for petitioner.
Gerry Levenberg, Washington, D. C., for respondent.
Mr. Justice MARSHALL delivered the opinion of the Court.
1
Under the basic f deral mining statute, which derives from an 1872 law,1 "all valuable mineral deposits in lands belonging to the United States" are declared "free and open to exploration and purchase." 30 U.S.C. § 22.2 The question presented is whether water is a "valuable mineral" as those words are used in the mining law.
2
* A claim to federal land containing "valuable mineral deposits" may be "located" by complying with certain procedural requisites; one who locates a claim thereby gains the exclusive right to possession of the land, as well as the right to extract minerals from it. See generally 30 U.S.C. §§ 21-54; 1 American Law of Mining § 1.17 (1973). The claim at issue in this case, known as Claim 22, is one of a group of 23 claims near Las Vegas, Nev., that were located in 1942. In 1962, after respondent had purchased these claims, it discovered water on Claim 22 by drilling a well thereon. This water was used to prepare for commercial sale the sand and gravel removed from some of the 23 claims.
3
In 1965, the Secretary of the Interior filed a complaint with the Bureau of Land Management, seeking to have all of these claims declared invalid on the ground that the only minerals discovered on them were "common varieties" of sand and gravel, which had been expressly excluded from the definition of "valuable minerals" by a 1955 statute. § 3, 69 Stat. 368, 30 U.S.C. § 611.3 At the administrative hearing on the Secretary's complaint, the principal issue was whether the sand and gravel deposits were "valuable" prior to the effective date of the 1955 legislation, in which case the claims would be valid.4 The Administrative Law Judge concluded after hearing the evidence that respondent had established pre-1955 value only as to Claim 10. On appeals taken by both respondent and the Government, the Interior Board of Land Appeals (IBLA) affirmed the Administrative Law Judge in all respects here relevant. 9 I. B. L. A. 94 (1973).5
4
Respondent sought review in the United States District Court for the District of Nevada.6 The court concluded that the decisions of the Administrative Law Judge and the IBLA were not supported by the evidence and that "at least" Claims 1 through 16 were valid. App. to Pet. for Cert. 26a. The court further held "that access to Claim No. 22 must be permitted so that the water produced from the well on that claim may be made available to the operations on the valid claims." Ibid. The IBLA's decision was accordingly vacated, and the case remanded to the Department of the Interior.
5
On the Government's appeal, the United States Court of Appeals for the Ninth Circuit affirmed. 553 F.2d 1209 (1977). It agreed with the District Court as to Claims 1 through 16 and also agreed that respondent was entitled to access to the water on Claim 22. It grounded the latter conclusion, however, 'upon a rationale other than that relied upon by the District Court," id., at 1215, a rationale that had not been briefed or argued in either the District Court or the Court of Appeals. Noting that "[s]ince early times, water has been regarded as a mineral," ibid., the appellate court stated that it could not assume "that Congress was not aware of the necessary glove of water for the hand of mining and [that] Congress impliedly intended to reserve water from those minerals allowed to be located and recovered," id., at 1216. Since the water at Claim 22 "has an intrinsic value in the desert area" and has additional value at the particular site "as a washing agent for . . . sand and gravel," the court ruled that respondent's "claim for the extraction of [Claim 22's] water is valid." Ibid.7
6
The difference between the District Court's and the Court of Appeals' rationales for allowing access to Claim 22 is a significant one. The District Court held only that respondent is entitled to use the water on the claim; the Court of Appeals, by contrast, held that the claim itself is valid. If the claim is indeed valid, respondent is not merely entitled to access to the water thereon, but also has exclusive possessory rights to the land and may keep others from making any use of it. By complying with certain procedures, moreover, respondent could secure a "patent" from the Government conveying fee simple title to the land. See 30 U.S.C. §§ 29, 37; 1 American Law of Mining § 1.23 (1973). See generally Union Oil Co. v. Smith, 249 U.S. 337, 348-349, 39 S.Ct. 308, 310-311, 63 L.Ed. 635 (1919). In view of the significance of the determination that a mining claim to federal land is valid, the Government sought review here of the Court of Appeals' sua sponte holding regarding Claim 22's validity. The single question presented in the petition is "[w]hether water is a locatable mineral under the mining law of 1872." Pet. for Cert. 2.
7
We granted certiorari, 434 U.S. 964, 98 S.Ct. 501, 54 L.Ed.2d 449 (1977), and we now reverse.
II
8
We may assume for purposes of this decision that the Court of Appeals was correct in concluding that water is a "mineral," in the broadest sense of that word, and that it is "valuable." Both of these facts are necessary to a holding that a claimant has located a "valuable mineral deposit" under the 1872 law, 30 U.S.C. § 22, but they are hardly sufficient.
9
This Court long ago recognized that the word "mineral," when used in an Act of Congress, cannot be given its broadest definition. In construing an Act granting certain public lands, except "mineral lands," to a railroad, the Court wrote:
10
"The word 'mineral' is used in so many senses, dependent upon the context, that the ordinary definitions of the dictionary throw but little light upon its signification in a given case. Thus the scientific division of all matter into the animal, vegetable or mineral kingdom would be absurd as applied to a grant of lands, since all lands belong to the mineral kingdom . . . . Equally subversive of the grant would be the definition of minerals found in the Century Dictionary: as 'any constituent of the earth's crust' . . . ." Northern Pacific R. Co. v. Soderberg, 188 U.S. 526, 530, 23 S.Ct. 365, 367, 47 L.Ed. 575 (1903).
11
In the context of the 1872 mining law, similar conclusions must be drawn. As one court observed, if the term "mineral" in the statute were construed to encompass all substances that are conceivably mineral, "there would be justification for making mile locations on virtually every part of the earth's surface," since "a very high proportion of the substances of the earth are in that sense 'mineral.' " Rummell v. Bailey, 7 Utah 2d 137, 140, 320 P.2d 653, 655 (1958). See also Robert L. Beery, 25 I. B. L. A. 287, 294-296 (1976) (noting that "common dirt," while literally a mineral, cannot be considered locatable under the mining law); Holman v. Utah, 41 L.D. 314, 315 (1912); 1 American Law of Mining, supra, § 2.4, p. 168.
12
The fact that water may be valuable or marketable similarly is not enough to support a mining claim's validity based on the presence of water. Many substances present on the land may be of value, and indeed it seems likely that land itself—especially land located just 15 miles from downtown Las Vegas, see 553 F.2d, at 1211—has, in the Court of Appeals' words, "an intrinsic value," id., at 1216. Yet the federal mining law surely was not intended to be a general real estate law; as one commentator has written, "the Congressional mandate did not sanction the disposal of federal lands under the mining laws for purposes unrelated to mining." 1 American Law of Mining, supra, § 1.18, p. 56; cf. Holman v. Utah, supra (distinguishing mining law from homestead and other agricultural entry laws). In order for a claim to be valid, the substance discovered must not only be a "valuable mineral" within the dictionary definition of those words, but must also be the type of valuable mineral that the 1872 Congress intended to make the basis of a valid claim.8
III
13
The 1872 law incorporates two provisions involving water rights that derive from earlier mining Acts. See 17 Stat. 94-95. In 1866, in Congress' first major effort to regulate mining on federal lands, it provided for the protection of the "vested rights" of "possessors and owners" "to the use of water for mining, agricultural, manufacturing or other purposes," to the extent that these rights derive from "priority of possession" and "are recognized and acknowledged by the local customs, laws, and the decisions of courts." 30 U.S.C. § 51.9 In 1870, Congress again emphasized its view that water rights derive from "local" law, not federal law, making "[a]ll patents granted . . . subject to any vested and accrued water rights . . . as may have been acquired under or recognized by [the 1866 provision]." 30 U.S.C. § 52.10
14
In discussing these mining law provisions on the subject of water rights, this Court has often taken note of the history of mining in the arid Western States. In 1879 Mr. ustice Field of California, writing for the Court, described in vivid terms the influx of miners that had shaped the water rights law of his State and its neighbors:
15
"The lands in which the precious metals were found belonged to the United States, and were unsurveyed . . . . Into these mountains the emigrants in vast numbers penetrated, occupying the ravines, gulches and canons, and probing the earth in all directions for the precious metals. . . . But the mines could not be worked without water. Without water the gold would remain for ever buried in the earth or rock. . . . The doctrines of the common law respecting the rights of riparian owners were not considered as applicable . . . to the condition of miners in the mountains. . . . Numerous regulations were adopted, or assumed to exist, from their obvious justness, for the security of . . . ditches and flumes, and the protection of rights to water . . . ." Jennison v. Kirk, 98 U.S. 453, 457-458, 25 L.Ed. 240 (1879).
16
See also Basey v. Gallagher, 20 Wall. 670, 681-684, 22 L.Ed. 452 (1875) (Field, J.); Atchison v. Peterson, 20 Wall. 507, 510-515, 22 L.Ed. 414 (1874) (Field, J.). Over a half century later, Mr. Justice Sutherland set out this same history in California Oregon Power Co. v. Beaver Portland Cement Co., 295 U.S. 142, 154-155, 55 S.Ct. 725, 727-728, 79 L.Ed. 1356 (1935). He then explained that the water rights provisions of the 1866 and 1870 laws were intended to
17
"approve and confirm the policy of appropriation for a beneficial use, as recognized by local rules and customs, and the legislation and judicial decisions of the arid-land states, as the test and measure of private rights in and to the non-navigable waters on the public domain." Id., at 155, 55 S.Ct. at 728.
18
Our opinions thus recognize that, although mining law and water law developed together in the West prior to 1866, with respect to federal lands Congress chose to subject only mining to comprehensive federal regulation. When it passed the 1866 and 1870 mining laws, Congress clearly intended to preserve "pre-existing [water] right[s ]." Broder v. Natoma Water & Mining Co., 101 U.S. 274, 276, 25 L.Ed. 790 (1879). Less than 15 years after passage of the 1872 law, the Secretary of the Interior in two decisions ruled that water is not a locatable mineral under the law and that private water rights on federal lands are instead "governed by local customs and laws," pursuant to the 1866 and 1870 provisions. Charles Lennig, 5 L.D. 190, 191 (1886); see William A. Chessman, 2 L.D. 774, 775 (1883). The Interior Department, which is charged with principal responsibility for "regulating the acquisition of rights in the public lands," Cameron v. United States, 252 U.S. 450, 460, 40 S.Ct. 410, 412, 64 L.Ed. 659 (1920), has recently reaffirmed this interpretation. Robert L. Beery, 25 I.B.L.A. 287 (1976).
19
In ruling to the contrary, the Court of Appeals did not refer to 30 U.S.C. §§ 51 and 52, which embody the 1866 and 1870 provisions; to our opinions construing these provisions; or to the consistent course of administrative rulings on this question. Instead, without benefit of briefing, the court below decided that "it would be incongruous . . . to hazard that Congress was not aware of the necessary glove of water for the hand of mining." 553 F.2d, at 1216. Congress was indeed aware of this, so much aware that it expressly provided a water rights policy in the mining laws. But the policy adopted is a "passive" one, 2 Waters and Water Rights § 102.1, p. 53 (R. Clark ed. 1967); Congress three times (in 1866, 1870, and 1872) affirmed the view that private water rights on federal lands were to be governed by state and local law and custom. It defies common sense to assume that Congress, when it adopted this policy, meant at the same time to establish a parallel federal system for acqui ing private water rights, and that it did so sub silentio through laws designed to regulate mining. In light of the 1866 and 1870 provisions, the history out of which they arose, and the decisions construing them in the context of the 1872 law, the notion that water is a "valuable mineral" under that law is simply untenable.
IV
20
The conclusion that Congress did not intend water to be locatable under the federal mining law is reinforced by consideration of the practical consequences that could be expected to flow from a holding to the contrary.
21
* Many problems would undoubtedly arise simply from the fact of having two overlapping systems for acquisition of private water rights. Under the appropriation doctrine prevailing in most of the Western States, the mere fact that a person controls land adjacent to a body of water means relatively little; instead, water rights belong to "[t]he first appropriator of water for a beneficial use," but only "to the extent of his actual use," California Oregon Power Co. v. Beaver Portland Cement Co., supra, 295 U.S., at 154, 55 S.Ct., at 727; see Jennison v. Kirk, supra, 98 U.S., at 458; W. Hutchins, Selected Problems in the Law of Water Rights in the West 30-32, 389-403 (1942); McGowen, The Development of Political Institutions on the Public Domain, 11 Wyo.L.J. 1, 14 (1957). Failure to use the water to which one is entitled for a certain period of time generally causes one's rights in that water to be deemed abandoned. See generally 2 W. Hutchins, Water Rights Laws in the Nineteen Western States 256-328 (1974).
22
With regard to minerals located under federal law, an entirely different theory prevails. The holder of a federal mining claim, by investing $100 annually in the claim, becomes entitled to possession of the land and may make any use, or no use, of the minerals involved. See 30 U.S.C. § 28. Once fee title by patent is obtained, see supra, at 609, even the $100 requirement is eliminated.
23
One can readily imagine the legal conflicts that might arise from these differing approaches if ordinary water were treated as a federally cognizable "mineral." A federal claimant could, for example, utilize all of the water extracted from a well like respondent's, without regard for the settled prior appropriation rights of another user of the same water.11 Or he might not use the water at all and yet prevent another from using it, thereby defeating the necessary Western policy in favor of "actual use" of scarce water resources. California Oregon Power Co. v. Beaver Portland Cement Co., 295 U.S., at 154, 55 S.Ct., at 727. As one respected commentator has written, allowing water to be the basis of a valid mining claim "could revive long abandoned common law rules of ground water ownership and capture, and . . . could raise horrendous problems of priority and extralateral rights."12 We decline to effect so major an alteration in established legal relationships based on nothing more than an overly literal reading of a statute, without any regard for its context or history.
B
24
A final indication that water should not be held to be a locatable mineral derives from Congress' 1955 decision to remove "common varieties" of certain minerals from the coverage of the mining law. 30 U.S.C. § 611; § e supra, at 606-607, and n. 5. This decision was made in large part because of "abuses under the general mining laws by . . . persons who locate[d] mining claims on public lands for purposes other than that of legitimate mining activity." H.R.Rep.No.730, 84th Cong., 1st Sess., 5 (1955); see S.Rep.No.554, 84th Cong., 1st Sess., 4-5 (1955); U.S.Code Cong. & Admin.News 1955, p. 2478. Apparently, locating a claim and obtaining a patent to federal land were so inexpensive that many "use[d] the guise of mining locations for nonmining purposes," including the establishment of "filling stations, curio shops, cafes, . . . residence[s] [and] summer camp[s]." H.R.Rep.No.730, p. 6; see S.Rep.No.554, supra, p. 5; U.S.Code Cong. & Admin.News 1955, p. 2478.
25
Water, of course, is among the most common of the earth's elements. While it may not be as common in the federal lands subject to the mining law as it is elsewhere, it is nevertheless common enough to raise the possibility of abuse by those less interested in extracting mineral resources than in obtaining title to valuable land.13 See Robert L. Beery, 25 I. B. L. A., at 296-297. Given the unprecedented nature of the Court of Appeals' decision, it is hardly surprising that the 1955 Congress did not include water on its list of "common varieties" of minerals that cannot confer validity on a mining claim. But the concerns that Congress addressed in the 1955 legislation indicate that water, like the listed minerals, should not be considered a locatable mineral under the 1872 mining law.
V
26
It has long been established that, when grants to federal land are at issue, any doubts "are resolved for the Government, not against it." United States v. Union Pacific R. Co., 353 U.S. 112, 116, 77 S.Ct. 685, 687, 1 L.Ed.2d 693 (1957). A fortiori, the Government must prevail in a case such as this, when the relevant statutory provisions, their historical context, consistent administrative and judicial decisions, and the practical problems with a contrary holding all weigh in its favor. Accordingly, the judgment of the Court of Appeals is
27
Reversed.
1
Act of May 10, 1872, 17 Stat. 91.
2
Title 30 U.S.C. § 22 provides in full:
"Except as otherwise provided, all valuable mineral deposits in lands belonging to the United States, both surveyed and unsurveyed, shall be free and open to exploration and purchase, and the lands in which they are found to occupation and purchase, by citizens of the United States and those who have declared their intention to become such, under regulations prescribed by law, and according to the local customs or rules of miners in the several mining districts, so far as the same are applicable and not inconsistent with the laws of the United States."
3
Title 30 U.S.C. § 611 provides in pertinent part:
"No deposit of common varieties of sand, stone, gravel, pumice, pumicite, or cinders and no deposit of petrified wood shall be deemed a valuable mineral deposit within the meaning of the mining laws of the United States so as to give effective validity to any mining claim hereafter located under such mining laws: Provided, however, That nothing herein shall affect the validity of any mining location based upon discovery of some other mineral occurring in or in association with such a deposit. 'Common varieties' as used in sections 601, 603, and 611 to 615 of this title does not include deposits of such materials which are valuable because the deposit has some property giving it distinct and special value . . . ."
4
The question of value has traditionally been resolved by application of "complement[ary]" tests relating to whether " 'a person of ordinary prudence' " would have expended " 'his labor and means' " developing the claim at issue and whether the minerals thereon could have been " 'extracted, [removed] and marketed at a profit.' " United States v. Coleman, 390 U.S. 599, 600, 602, 88 S.Ct. 1327, 1331, 20 L.Ed.2d 170 (1968), quoting decisions of the Secretary of the Interior in Coleman and in Castle v. Womble, 19 L.D. 455, 457 (1894).
5
The Administrative Law Judge, in addition to holding t at Claim 10 was valid based on its pre-1955 value, held that Claim 9 was valid because it provided reserve material for Claim 10. The IBLA reversed as to Claim 9, holding it invalid. 9 I. B. L. A., at 108.
The Secretary's complaint also named two other claims, numbered 12A and 13A, that were located by respondent in 1961. Since location occurred after the relevant 1955 date, the Administrative Law Judge held these claims invalid. His decision regarding Claims 12A and 13A was upheld by both the IBLA, 9 I. B. L. A., at 106, and the District Court, App. to Pet. for Cert. 25a, and was not contested in the Court of Appeals, see 553 F.2d 1209, 1210 n. 1 (C.A.9 1977).
6
Although the question of the District Court's subject-matter jurisdiction was not raised in this Court or apparently in either court below, we have an obligation to consider the question sua sponte. See, e. g., Mt. Healthy City School Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 278, 97 S.Ct. 568, 571, 50 L.Ed.2d 471 (1977); Mansfield, Coldwater, & Lake Michigan R. Co. v. Swan, 111 U.S. 379, 382, 4 S.Ct. 510, 511, 28 L.Ed. 462 (1884). Respondent's complaint alleged jurisdiction based on the Administrative Procedure Act (APA), 5 U.S.C. § 701 et seq.,
and 28 U.S.C. §§ 1361, 1391(e). App. 27A. Title 28 U.S.C. § 1391(e) is a venue statute and cannot itself confer jurisdiction.
With regard to the APA, while it may have appeared to be a proper basis of jurisdiction in the Ninth Circuit at the time the complaint was filed in 1973, see Brandt v. Hickel, 427 F.2d 53, 55 (CA9 1970), we have since held that "the APA does not afford an implied grant of subject-matter jurisdiction permitting federal judicial review of agency action," Califano v. Sanders, 430 U.S. 99, 107, 97 S.Ct. 980, 985, 51 L.Ed.2d 192 (1977). We need not decide whether jurisdiction would lie here under 28 U.S.C. § 1361, because jurisdiction in this action to review a decision of the Secretary of the Interior is clearly conferred by 28 U.S.C. § 1331(a).
This general federal-question statute was amended in 1976 to eliminate the amount-in-controversy requirement with regard to actions "brought against the United States, any agency thereof, or any officer or employee thereof in his official capacity." Pub.L. No. 94-574 § 2, 90 Stat. 2721. Hence the fact that in 1973 respondent in its complaint did not allege $10,000 in controversy is now of no moment. See Ralpho v. Bell, 186 U.S.App.D.C. 368, 376-377, n. 51, 569 F.2d 607, 615-616, n. 51 (1977); Green v. Philbrook, 427 F.Supp. 834, 836 (Vt.1977). Nor does it matter that the complaint does not in so many words assert § 1331(a) as a basis of jurisdiction, since the facts alleged in it are sufficient to establish such jurisdiction and the complaint appeared jurisdictionally correct when filed. See Fort Sumter Tours, Inc. v. Andrus, 564 F.2d 1119, 1123 n. 4 (CA4 1977); Harary v. Blumenthal, 555 F.2d 1113, 1115 n. 1 (CA2 1977); Fitzgerald v. United States Civil Service Comm'n, 180 U.S.App.D.C. 327, 329 n. 1, 554 F.2d 1186, 1188 n. 1 (1977).
7
In reaching this conclusion, the court correctly noted, 553 F.2d, at 1216, that water is not listed among the "common varieties" of minerals withdrawn from location by 30 U.S.C. § 611. Hence the fact that respondent did not discover water on Claim 22 until after 1955 is irrelevant to the question of the validity of the claim. See supra, at 606-607, and n. 3. See also infra, at 617.
8
By referring to the intent of the 1872 Congress, we do not mean to imply that the only minerals locatable are those that were known to exist in 1872. But Congress' general conception of what a "valuable mineral" was for purposes of mining claim location is of obvious relevance in construing the 1872 law.
9
Title 30 U.S.C. § 51 provides in full:
"Whenever, by priority of possession, rights to the use of water for mining, agricultural, manufacturing, or other purposes have vested and accrued, and the same are recognized and acknowledged by the local customs, laws, and the decisions of courts, the possessors and owners of such vested rights shall be maintained and protected in the same; and the right-of-way for the construction of ditches and canals for the purposes herein specified is acknowledged and confirmed; but whenever any person, in the construction of any ditch or canal, injures or damages the possession of any settler on the public domain, the party committing such injury or damage shall be liable to the party injured for such injury or damage."
10
Title 30 U.S.C. § 52 provides in full:
"All patents granted, or homesteads allowed, shall be subject to any vested and accrued water rights, or rights to ditches and reservoirs used in connection with such water rights, as may have been acquired under or recognized by section 51 of this title."
11
The holder of a valid mining claim is generally understood to have an unlimited right to extract minerals from the claim, "even to exhaustion." Union Oil Co. v. Smith, 249 U.S. 337, 349, 39 S.Ct. 308, 311, 63 L.Ed. 635 (1919). Respondent suggests that this right could be limited in the context of a mining-law claim to water, if the law were construed to require the claimant to respect water rights previously vested under state law. Brief for Respondent 31 n. 8; see id., at 25-26.
12
Trelease, Federal-State Problems in Packaging Water Rights, in Water Acquisition for Mineral Development Institute Paper 9, pp. 9-17 n. 47 (Rocky Mt.Min.L.Fdn., 1978).
13
The Court of Appeals' suggestion that a claim to water might be validated simply because of the "intrinsic value" of water "in the desert area," 553 F.2d, at 1216, makes abuse particularly likely, since the "intrinsic value" theory would substantially lessen a claimant's burden of showing the "valuable" nature of his claim. See n. 4, supra.
| 78
|
436 U.S. 584
98 S.Ct. 1991
56 L.Ed.2d 554
Willard E. ROBERTSON, Petitioner,v.Edward F. WEGMANN, Executor of the Estate of Clay L. Shaw, et al.
No. 77-178.
Argued March 21, 1978.
Decided May 31, 1978.
Syllabus
One Shaw filed an action for damages and injunctive relief under 42 U.S.C. § 1983 against petitioner and others, claiming that they had deprived him of his constitutional rights. Upon the death of Shaw before trial, respondent executor of his estate was substituted as plaintiff. Petitioner and the other defendants filed a motion to dismiss on the ground that Shaw's death abated the action. The District Court denied the motion. The court held that the applicable survivorship rule was governed by 42 U.S.C. § 1988, which provides that the jurisdiction conferred on district courts for the protection of civil rights shall be exercised conformably with federal laws so far as such laws are suitable "but in all cases where they . . . are deficient in the provisions necessary to furnish suitable remedies . . . the common law, as modified and changed by the constitution and statutes of the [forum] State" shall apply as long as they are "not inconsistent with the Constitution and laws of the United States." The court found the federal civil rights laws to be "deficient in not providing for survival," and then held that under Louisiana law an action like Shaw's would survive only in favor of a spouse, children, parents, or siblings, none of whom was alive at the time of Shaw's death, but refused to apply the state law, finding it inconsistent with federal law. In place of the state law the court created "a federal common law of survival in civil rights actions in favor of the personal representative of the deceased." The Court of Appeals affirmed. Held: The District Court should have adopted the Louisiana survivorship law, which would have caused Shaw's action to abate. Pp. 590-595.
(a) There is nothing in § 1983, despite its broad sweep, to indicate that a state law causing abatement of a particular action should invariably be ignored in favor of a rule of absolute survivorship. No claim is made that Louisiana's survivorship laws do not in general comport with the underlying policies of § 1983 or that Louisiana's decision to restrict certain survivorship rights to the relations specified above is unreasonable. Pp. 590-592.
(b) The goal of compensating those injured by a deprivation of rights provides no basis for requiring compensation of one who is merely suing as decedent's executor. And, given that most Louisiana actions survive the plaintiff's death, the fact that a particular action might abate would not adversely affect § 1983's role in preventing official illegality, at least in situations such as the one here where there is no claim that the illegality caused plaintiff's death. P. 592.
545 F.2d 980, reversed.
Malcolm W. Monroe, New Orleans, La., for petitioner.
Edward F. Wegmann, New Orleans, La., for respondents.
Mr. Justice MARSHALL delivered the opinion of the Court.
1
In early 1970, Clay L. Shaw filed a civil rights action under 42 U.S.C. § 1983 in the United States District Court for the Eastern District of Louisiana. Four years later, before trial had commenced, Shaw died. The question presented is whether the District Court was required to adopt as federal law a Louisiana survivorship statute, which would have caused this action to abate, or was free instead to create a federal common-law rule allowing the action to survive. Resolution of this question turns on whether the state statute is "inconsistent with the Constitution and laws of the United States." 42 U.S.C. § 1988.1
2
* In 1969, Shaw was tried in a Louisiana state court on charges of having participated in a conspiracy to assassinate President John F. Kennedy. He was acquitted by a jury but within days was arrested on charges of having committed perjury in his testimony at the conspiracy trial. Alleging that these prosecutions were undertaken in bad faith, Shaw's § 1983 complaint named as defendants the then District Attorney of Orleans Parish, Jim Garrison, and five other persons, including petitioner Willard E. Robertson, who was alleged to have lent financial support to Garrison's investigation of Shaw through an organization known as "Truth or Consequences." On Shaw's application, the District Court enjoined prosecution of the perjury action, Shaw v. Garrison, 328 F.Supp. 390 (1971), and the Court of Appeals affirmed, 467 F.2d 113 (CA5 1972).2
3
Since Shaw had filed an action seeking damages, the parties continued with discovery after the injunction issued. Trial was set for November 1974, but in August 1974 Shaw died. The executor of his estate, respondent Edward F. Wegmann (hereafter respondent), moved to be substituted as plaintiff, and the District Court granted the motion.3 Petitioner and other defendants then moved to dismiss the action on the ground that it had abated on Shaw's death.
4
The District Court denied the motion to dismiss. It began its analysis by referring to 42 U.S.C. § 1988; this statute provides that, when federal law is "deficient" with regard to "suitable remedies" in federal civil rights actions, federal courts are to be governed by
5
"the common law, as modified and changed by the constitution and statutes of the State wherein the court having jurisdiction of [the] civil . . . cause is held, so far as the same is not inconsistent with the Constitution and laws of the United States."
6
The court found the federal civil rights laws to be "deficient in not providing for survival." Shaw v. Garrison, 391 F.Supp. 1353, 1361 (1975). It then held that, under Louisiana law, an action like Shaw's would survive only in favor of a spouse, children, parents, or siblings. Since no person with the requisite relationship to Shaw was alive at the time of his death, his action would have abated had state law been adopted as the federal rule. But the court refused to apply state law, finding it inconsistent with federal law, and in its place created "a federal common law of survival in civil rights actions in favor of the personal representative of the deceased." Id., at 1368.
7
On an interlocutory appeal taken pursuant to 28 U.S.C. § 1292(b), the United States Court of Appeals for the Fifth Circuit affirmed. The court first noted that all parties agreed that, "if Louisiana law applies, Shaw's § 1983 claim abates." 545 F.2d 980, 982 (1977). Like the District Court, the Court of Appeals applied 42 U.S.C. § 1988, found federal law "deficient" with regard to survivorship, and held Louisiana law "inconsistent with the broad remedial purposes embodied in the Civil Rights Acts." 545 F.2d, at 983. It offered a number of justifications for creating a federal common-law rule allowing respondent to continue Shaw's action: Such a rule would better further the policies underlying § 1983, 545 F.2d, at 984-985; would "foste[r] the uniform application of the civil rights laws," id., at 985; and would be consistent with "[t]he marked tendency of the federal courts to allow actions to survive in other areas of particular federal concern," ibid. The court concluded that, "as a matter of federal common law, a § 1983 action instituted by a plaintiff prior to his death survives in favor of his estate." Id., at 987.
8
We granted certiorari, 434 U.S. 983, 98 S.Ct. 607, 54 L.Ed.2d 477 (1977), and we now reverse.
II
9
As both courts below held, and as both parties here have assumed, the decision as to the applicable survivorship rule is governed by 42 U.S.C. § 1988. This statute recognizes that in certain areas "federal law is unsuited or insufficient 'to furnish suitable remedies' "; federal law simply does not "cover every issue that may arise in the context of a federal civil rights action." Moor v. Co nty of Alameda, 411 U.S. 693, 703, 702, 93 S.Ct. 1785, 1792, 36 L.Ed.2d 596 (1973), quoting 42 U.S.C. § 1988. When federal law is thus "deficient," § 1988 instructs us to turn to "the common law, as modified and changed by the constitution and statutes of the [forum] State," as long as these are "not inconsistent with the Constitution and laws of the United States." See n. 1, supra. Regardless of the source of the law applied in a particular case, however, it is clear that the ultimate rule adopted under § 1988 " 'is a federal rule responsive to the need whenever a federal right is impaired.' " Moor v. County of Alameda, supra, at 703, 93 S.Ct. at 1792, quoting Sullivan v. Little Hunting Park, Inc., 396 U.S. 229, 240, 90 S.Ct. 400, 406, 24 L.Ed.2d 386 (1969).
10
As we noted in Moor v. County of Alameda, and as was recognized by both courts below, one specific area not covered by federal law is that relating to "the survival of civil rights actions under § 1983 upon the death of either the plaintiff or defendant." 411 U.S., at 702 n. 14, 93 S.Ct., at 1792.4 State statutes governing the survival of state actions do exist, however. These statutes, which vary widely with regard to both the types of claims that survive and the parties as to whom survivorship is allowed, see W. Prosser, Law of Torts 900-901 (4th ed. 1971), were intended to modify the simple, if harsh, 19th-century common-law rule: "[A]n injured party's personal claim was [always] extinguished . . . upon the death of either the injured party himself or the alleged wrongdoer." Moor v. County of Alameda, supra, at 702 n. 14, 93 S.Ct. at 1792; see Michigan Central R. Co. v. Vreeland, 227 U.S. 59, 67, 33 S.Ct. 192, 194, 57 L.Ed.2d 417 (1913). Under § 1988, this state statutory law, modifying the common law,5 provides the principal reference point in determining survival of civil rights actions, subject to the important proviso that state law may not be applied when it is "inconsistent with the Constitution and laws of the United States." Because of this proviso, the courts below refused to adopt as federal law the Louisiana survivorship statute and in its place created a federal common-law rule.
III
11
In resolving questions of inconsistency between state and federal law raised under § 1988, courts must look not only at particular federal statutes and constitutional provisions, but also at "the policies expressed in [them]." Sullivan v. Little Hunting Park, Inc., supra, 396 U.S., at 240, 90 S.Ct., at 406; see Moor v. County of Alameda, supra, 411 U.S., at 703, 93 S.Ct., at 1792. Of particular importance is whether application of state law "would be inconsistent with the federal policy underlying the cause of action under consideration." Johnson v. Railway Express Agency, Inc., 421 U.S. 454, 465, 95 S.Ct. 1716, 1722, 44 L.Ed.2d 295 (1975). The instant cause of action arises under 42 U.S.C. § 1983, one of the "Reconstruction civil rights statutes" that this Court has accorded " 'a sweep as broad as [their] language.' " Griffin v. Breckenridge, 403 U.S. 88, 97, 91 S.Ct. 1790, 1796, 29 L.Ed.2d 338 (1971), quoting United States v. Price, 383 U.S. 787, 801, 86 S.Ct. 1152, 1160, 16 L.Ed.2d 267 (1966).
12
Despite the broad sweep of § 1983, we can find nothing in the statute or its underlying policies to indicate that a state law causing abatement of a particular action should invariably be ignored in favor of a rule of absolute survivorship. The policies underlying § 1983 include compensation of persons injured by deprivation of federal rights and prevention of abuses of power by those acting under color of state law. See, e. g., Carey v. Piphus, 435 U.S. 247, 254, 98 S.Ct. 1042, 1047, 55 L.Ed.2d 252 (1978); Mitchum v. Foster, 407 U.S. 225, 238-242, 92 S.Ct. 2151, 2159-2161, 32 L.Ed.2d 705 (1972); Monroe v. Pape, 365 U.S. 167, 172-187, 81 S.Ct. 473, 476-484, 5 L.Ed.2d 492 (1961). No claim is made here that Louisiana's survivorship laws are in general inconsistent with these policies, and indeed most Louisiana actions survive the plaintiff's death. See La.Code Civ.Proc.Ann., Art. 428 (West 1960); La.Civ.Code Ann., Art. 2315 (West 1971). Moreover, certain types of actions that would abate automatically on the plaintiff's death in many States—for example, actions for defamation and malicious prosecution—would apparently survive in Louisiana.6 In actions other than those for damage to property however, Louisiana does not allow the deceased's personal representative to be substituted as plaintiff; rather, the action survives only in favor of a spouse, children, parents, or siblings. See 391 F.Supp., at 1361-1363; La.Civ.Code Ann., Art. 2315 (West 1971); J. Wilton Jones Co. v. Liberty Mutual Ins. Co., 248 So.2d 878 (La.App. 1970 and 1971) (en banc).7 But surely few persons are not survived by one of these close relatives, and in any event no contention is made here that Louisiana's decision to restrict certain survivorship rights in this manner is an unreasonable one.8
13
It is therefore difficult to see how any of § 1983's policies would be undermined if Shaw's action were to abate. The goal of compensating those injured by a deprivation of rights provides no basis for requiring compensation of one who is merely suing as the executor of the deceased's estate.9 And, given that most Louisiana actions survive the plaintiff's death, the fact that a particular action might abate surely would not adversely affect § 1983's role in preventing official illegality, at least in situations in which there is no claim that the illegality caused the plaintiff's death. A state official contemplating illegal activity must always be prepared to face the prospect of a § 1983 action being filed against him. In light of this prospect, even an official aware of the intricacies of Louisiana survivorship law would hardly be influenced in his behavior by its provisions.10
14
It is true that § 1983 provides "a uniquely federal remedy against incursions under the claimed authority of state law upon rights secured by the Constitution and laws of the Nation." Mitchum v. Foster, supra, 407 U.S., at 239, 92 S.Ct., at 2160. That a federal remedy should be available, however, does not mean that a § 1983 plaintiff (or his representative) must be allowed to continue an action in disregard of the state law to which § 1988 refers us. A state statute cannot be considered "inconsistent" with federal law merely because the statute causes the plaintiff to lose the litigation. If success of the § 1983 action were the only benchmark, there would be no reason at all to look to state law, for the appropriate rule would then always be the one favoring the plaintiff, and its source would be essentially irrelevant. But § 1988 quite clearly instructs us to refer to state statutes; it does not say that state law is to be accepted or rejected based solely on which side is advantaged thereby. Under the circumstances presented here, the fact that Shaw was not survived by one of several close relatives should not itself be sufficient to cause the Louisiana survivorship provisions to be deemed "inconsistent with the Constitution and laws of the United States." 42 U.S.C. § 1988.11
IV
15
Our holding today is a narrow one, limited to situations in which no claim is made that state law generally is inhospitable to survival of § 1983 actions and in which the particular application of state survivorship law, while it may cause abatement of the action, has no independent adverse effect on the policies underlying § 1983. A different situation might well be presented, as the District Court noted, if state law "did not provide for survival of any tort actions," 391 F.Supp., at 1363, or if it significantly restricted the types of actions that survive. Cf. Carey v. Piphus, 435 U.S., at 258, 98 S.Ct., at 1049 (failure of common law to "recognize an analogous cause of action" is not sufficient reason to deny compensation to § 1983 plaintiff). We intimate no view, moreover, about whether abatement based on state law could be allowed in a situation in which deprivation of federal rights caused death. See supra, 592, and n. 10; cf. Brazier v. Cherry, 293 F.2d 401 (CA5 1961) (deceased allegedly beaten to death by policemen; state survival law applied in favor of his widow and estate).
16
Here it is agreed that Shaw's death was not caused by the deprivation of rights for which he sued under § 1983, and Louisiana law provides for the survival of most tort actions. Respondent's only complaint about Louisiana law is that it would cause Shaw's action to abate. We conclude that the mere fact of abatement of a particular lawsuit is not sufficient ground to declare state law "inconsistent" with federal law.
17
Accordingly, the judgment of the Court of Appeals is
18
Reversed.
19
Mr. Justice BLACKMUN, with whom Mr. Justice BRENNAN and Mr. Justice WHITE join, dissenting.
20
It is disturbing to see the Court, in this decision, although almost apologetically self-described as "a narrow one," ante, at 594, cut back on what is acknowledged, ante, at 590, to be the "broad sweep" of 42 U.S.C. § 1983. Accordingly, I dissent.
21
I do not read the emphasis of § 1988, as the Court does, ante, at 585 and 593-594, n. 11, to the effect that the Federal District Court "was required to adopt" the Louisiana statute, and was free to look to federal common law only as a secondary matter. It seems to me that this places the cart before the horse. Section 1988 requires the utilization of federal law ("shall be exercised and enforced in conformity with the laws of the United States"). It authorizes resort to the state statute only if the federal laws "are not adapted to the object" of "protection of all persons in the United States in their civil rights, and for their vindication" or are "deficient in the provisions necessary to furnish suitable remedies and punish offenses agai st law." Even then, state statutes are an alternative source of law only if "not inconsistent with the Constitution and laws of the United States." Surely, federal law is the rule and not the exception.
22
Accepting this as the proper starting point, it necessarily follows, it seems to me, that the judgment of the Court of Appeals must be affirmed, not reversed. To be sure, survivorship of a civil rights action under § 1983 upon the death of either party is not specifically covered by the federal statute. But that does not mean that "the laws of the United States" are not "suitable" or are "not adapted to the object" or are "deficient in the provisions necessary." The federal law and the underlying federal policy stand bright and clear. And in the light of that brightness and of that clarity, I see no need to resort to the myriad of state rules governing the survival of state actions.
23
First. In Sullivan v. Little Hunting Park, Inc., 396 U.S. 229, 90 S.Ct. 400, 24 L.Ed.2d 386 (1969), a case that concerned the availability of compensatory damages for a violation of § 1982, a remedial question, as here, not governed explicitly by any federal statute other than § 1988, Mr. Justice Douglas, writing for the Court, painted with a broad brush the scope of the federal court's choice-of-law authority:
24
"[A]s we read § 1988, . . . both federal and state rules on damages may be utilized, whichever better serves the policies expressed in the federal statutes. . . . The rule of damages, whether drawn from federal or state sources, is a federal rule responsive to the need whenever a federal right is impaired." 396 U.S., at 240, 90 S.Ct., at 406 (emphasis added).
25
The Court's present reading of § 1988 seems to me to be hyperlogical and sadly out of line with the precept set forth in that quoted material. The statute was intended to give courts flexibility to shape their procedures and remedies in accord with the underlying policies of the Civil Rights Acts, choosing whichever rule "better serves" those policies (emphasis added). I do not understand the Court to deny a federal court's authority under § 1988 to reject state law when to apply it seriously undermines substantial federal concerns. But I do not accept the Court's apparent conclusion that, absent such an extreme inconsistency, § 1988 restricts courts to state law on matters of procedure and remedy. That conclusion too often would interfere with the efficient redress of constitutional rights.
26
Second. The Court's reading of § 1988 cannot easily be squared with its treatment of the problems of immunity and damages under the Civil Rights Acts. Only this Term, in Carey v. Piphus, 435 U.S. 247, 98 S.Ct. 1042, 55 L.Ed.2d 252 (1978), the Court set a rule for the award of damages under § 1983 for deprivation of procedural due process by resort to "federal common law." Though the case arose from Illinois, the Court did not feel compelled to inquire into Illinois' statutory or decisional law of damages, nor to test that law for possible "inconsistency" with the federal scheme, before embracing a federal common-law rule. Instead, the Court fashioned a federal damages rule, from common-law sources and its view of the type of injury, to govern such cases uniformly State to State. 435 U.S., at 257-259, and n. 13, 98 S.Ct., at 1049-1050.
27
Similarly, in constructing immunities under § 1983, the Court has consistently relied on federal common-law rules. As Carey v. Piphus recognizes, id., at 258, n. 13, 98 S.Ct., at 1049 n. 13, in attributing immunity to prosecutors, Imbler v. Pachtman, 424 U.S. 409, 417-419, 96 S.Ct. 984, 988-989, 47 L.Ed.2d 128 (1976); to judges, Pierson v. Ray, 386 U.S. 547, 554-555, 87 S.Ct. 1213, 1217-1218, 18 L.Ed.2d 288 (1967); and to other officials, matters on which the language of § 1983 is silent, we have not felt bound by the tort immunities recognized in the particular forum State and, only after finding an "inconsistency" with federal standards, then considered a uniform federal rule. Instead, the immunities have been fashioned in light of historic common-law concerns and the policies of the Civil Rights Acts.1
28
Third. A flexible reading of § 1988, permitting resort to a federal rule of survival because it "better serves" the policies of the Civil Rights Acts, would be consistent with the methodology employed in the other major choice-of-law provision in the federal structure, namely, the Rules of Decision Act. 28 U.S.C. § 1652.2 That Act provides that state law is to govern a civil trial in a federal court "except where the Constitution or treaties of the United States or Acts of Congress otherwise require or provide." The exception has not been interpreted in a crabbed or wooden fashion, but, instead, has been used to give expression to important federal interests. Thus, for example, the exception has been used to apply a federal common law of labor contracts in suits under § 301(a) of the Labor Management Relations Act, 1947, 29 U.S.C. § 185(a), Textile Workers Union v. Lincoln Mills, 353 U.S. 448, 77 S.Ct. 912, 1 L.Ed.2d 972 (1957); to apply federal common law to transactions in commercial paper issued by the United States where the United States is a party, Clearfield Trust Co. v. United States, 318 U.S. 363, 63 S.Ct. 573, 87 L.Ed. 838 (1943); and to avoid application of governing state law to the reservation of mineral rights in a land acquisition agreement to which the United States was a party and that bore heavily upon a federal wildlife regulatory program, United States v. Little Lake Misere Land Co., 412 U.S. 580, 93 S.Ct. 2389, 37 L.Ed.2d 187 (1973). See also Auto Workers v. Hoosier Cardinal Corp., 383 U.S. 696, 709, 86 S.Ct. 1107, 1115, 16 L.Ed.2d 192 (1966): "[S]tate law is applied [under the Rules of Decision Act] only because it supplements and fulfills federal policy, and the ultimate question is what federal policy requires." (WHITE, J., dissenting.)
29
Just as the Rules of Decision Act cases disregard state law where there is conflict with federal policy, even though no explicit conflict with the terms of a federal statute, so, too, state remedial and procedural law must be disregarded under § 1988 where that law fails to give adequate expression to important federal concerns. See Sullivan v. Little Hunting Park, Inc., supra. The opponents of the 1866 Act were distinctly aware that the legislation that became § 1988 would give the federal courts power to shape federal common-law rules. See, for example, the protesting remarks of Congressman Kerr relative to § 3 of the 1866 Act (which contained the predecessor version of § 1988):
30
"I might go on and in this manner illustrate the practical working of this extraordinary measure. . . . [T]he authors of this bill feared, very properly too, that the system of laws heretofore administered in the Federal courts might fail to supply any precedent to guide the courts in the enforcement of the strange provisions of this bill, and not to be thwarted by this difficulty, they confer upon the courts the power of judicial legislation, the power to make such other laws as th y may think necessary. Such is the practical effect of the last clause of the third section [of § 1988] . . . .
31
"That is to say, the Federal courts may, in such cases, make such rules and apply such law as they please, and call it common law " (emphasis in original). Cong.Globe, 39th Cong., 1st Sess., 1271 (1866).
32
Fourth. Section 1983's critical concerns are compensation of the victims of unconstitutional action, and deterrence of like misconduct in the future. Any crabbed rule of survivorship obviously interferes directly with the second critical interest and may well interfere with the first.
33
The unsuitability of Louisiana's law is shown by the very case at hand. It will happen not infrequently that a decedent's only survivor or survivors are nonrelatives or collateral relatives who do not fit within the four named classes of Louisiana statutory survivors. Though the Court surmises, ante, at 591-592, that "surely few persons are not survived" by a spouse, children, parents, or siblings, any lawyer who has had experience in estate planning or in probating estates knows that that situation is frequently encountered. The Louisiana survivorship rule applies no matter how malicious or ill-intentioned a defendant's action was. In this case, as the Court acknowledges, ante, at 586 n. 2, the District Court found that defendant Garrison brought state perjury charges against plaintiff Shaw "in bad faith and for purposes of harassment," 328 F.Supp. 390, 400, a finding that the Court of Appeals affirmed as not clearly erroneous. 467 F.2d 113, 122. The federal interest in specific deterrence, when there was malicious intention to deprive a person of his constitutional rights, is particularly strong, as Carey v. Piphus intimates, 435 U.S., at 257 n. 11, 98 S.Ct., at 1048-1049 n. 11. Insuring a specific deterrent under federal law gains importance from the very premise of the Civil Rights Act that state tort policy often is inadequate to deter violations of the constitutional rights of disfavored groups.
34
The Louisiana rule requiring abatement appears to apply even where the death was intentional and caused, say, by a beating delivered by a defendant. The Court does not deny this result, merely declaiming, ante, at 594, that in such a case it might reconsider the applicability of the Louisiana survivorship statute. But the Court does not explain how either certainty or federalism is served by such a variegated application of the Louisiana statute, nor how an abatement rule would be workable when made to depend on a fact of causation often requiring an entire trial to prove.
35
It makes no sense to me to make even a passing reference, ante, at 592, to behavioral influence. The Court opines that no official aware of the intricacies of Louisiana survivorship law would "be influenced in his behavior by its provisions." But the defendants in Shaw's litigation obviously have been "sweating it out" through the several years of proceedings and litigation in this case. One can imagine the relief occasioned when the realization dawned that Shaw's death might—just might—abate the action. To that extent, the deterrent against behavior such as that attributed to the defendants in this case surely has been lessened.
36
As to compensation, it is no answer to intimate, as the Court does, ante, at 591-592, that Shaw's particular survivors were not personally injured, for obviously had Shaw been survived by parents or siblings, the cause of action would exist despite the absence in them of so deep and personal an affront, or any at all, as Shaw himself was alleged to have sustained. The Court propounds the unreasoned conclusion, ibid., that the "goal of compensating those injured by a deprivation of rights provides no basis for requiring compensation of one who is merely suing as the executor of the deceased's estate." But the Court does not purport to explain why it is consistent with the purposes of § 1983 to r cognize a derivative or independent interest in a brother or parent, while denying similar interest to a nephew, grandparent, or legatee.
37
Fifth. The Court regards the Louisiana system's structuring of survivorship rights as not unreasonable. Ante, at 592. The observation, of course, is a gratuitous one, for as the Court immediately observes, id., at 592 n. 8, it does not resolve the issue that confronts us here. We are not concerned with the reasonableness of the Louisiana survivorship statute in allocating tort recoveries. We are concerned with its application in the face of a claim of civil rights guaranteed the decedent by federal law. Similarly, the Court's observation that the Longshoremen's and Harbor Workers' Compensation Act, 33 U.S.C. §§ 908(d), 909(d) (1970 ed., Supp. V), and Federal Employers' Liability Act, 45 U.S.C. § 59, limit survival to specific named relatives or dependents (albeit a larger class of survivors than the Louisiana statute allows) is gratuitous. Those statutes have as their main purpose loss shifting and compensation, rather than deterrence of unconstitutional conduct. And, although the Court does not mention it, any reference to the survival rule provided in 42 U.S.C. § 1986 governing that statute's principle of vicarious liability, would be off point. There it was the extraordinary character of the liability created by § 1986, of failing to prevent wrongful acts, that apparently induced Congress to limit recovery to widows or next of kin in a specified amount of statutory damages. Cf. Cong.Globe, 42d Cong., 1st Sess., 749-752, 756-763 (1871); Moor v. County of Alameda, 411 U.S., at 710 n. 26, 93 S.Ct., at 1796.
38
The Court acknowledges, ante, at 590, "the broad sweep of § 1983," but seeks to justify the application of a rule of nonsurvivorship here because it feels that Louisiana is comparatively generous as to survivorship anyway. This grudging allowance of what the Louisiana statute does not give, just because it gives in part, seems to me to grind adversely against the statute's "broad sweep." Would the Court's decision be otherwise if actions for defamation and malicious prosecution in fact did not survive at all in Louisiana? The Court by omission admits, ante, at 591, and n. 6, that that question of survival has not been litigated in Louisiana. See Johnson, Death on the Callais Coach: The Mystery of Louisiana Wrongful Death and Survival Actions, 37 La.L.Rev. 1, 6 n. 23 (1976). Defamation and malicious prosecution actions wholly abate upon the death of the plaintiff in a large number of States, see ante, at 591 and n. 6. Does it make sense to apply a federal rule of survivorship in those States while preserving a different state rule, stingier than the federal rule, in Louisiana?
39
Sixth. A federal rule of survivorship allows uniformity, and counsel immediately know the answer. Litigants identically aggrieved in their federal civil rights, residing in geographically adjacent States, will not have different results due to the vagaries of state law. Litigants need not engage in uncertain characterization of a § 1983 action in terms of its nearest tort cousin, a questionable procedure to begin with, since the interests protected by tort law and constitutional law may be quite different. Nor will federal rights depend on the arcane intricacies of state survival law—which differs in Louisiana according to whether the right is "strictly personal," La.Code Civ.Proc.Ann., Art. 428 (West 1960); whether the action concerns property damage, La.Civ.Code Ann., Art. 2315, ¶ 2 (West 1971); or whether it concerns "other damages," id., ¶ 3. See 37 La.L.Rev., at 52.
40
The policies favoring so-called "absolute" survivorship, viz., survivorship in favor of a decedent's nonrelated legatees in the absence of familial legatees, are the simple goals of uniformity, deterrence, and perhaps compensation. A defendant who has violated someone's constitutional rights has no legitimate interest in a windfall release upon the death of the victim. A plaintiff's interest in certainty, in an equal remedy, and in deterrence supports such an absolute rule. I regard as unanswered the justifications advanced by the District Court and the Court of Appeals: uniformity of decisions and fulfillment of the great purposes of § 1983. 391 F.Supp., at 1359, 1363-1365; 545 F.2d at 983.
41
Seventh. Rejecting Louisiana's survivorship limitations does not mean that state procedure and state remedies will cease to serve as important sources of civil rights law. State law, for instance, may well be a suitable source of statutes of limitation, since that is a rule for which litigants prudently can plan. Rejecting Louisiana's survivorship limitations means only that state rules are subject to some scrutiny for suitability. Here the deterrent purpose of § 1983 is disserved by Louisiana's rule of abatement.
42
It is unfortunate that the Court restricts the reach of § 1983 by today's decision construing § 1988. Congress now must act again if the gap in remedy is to be filled.
1
Title 42 U.S.C. § 1988 provides in pertinent part:
"The jurisdiction in civil and criminal matters conferred on the district courts by the provisions of this chapter and Title 18, for the protection of all persons in the United States in their civil rights, and for their vindication, shall be exercised and enforced in conformity with the laws of the United States, so far as such laws are suitable to carry the same into effect; but in all cases where they are not adapted to the object, or are deficient in the provisions necessary to furnish suitable remedies and punish offenses against law, the common law, as modified and changed by the constitution and statutes of the State wherein the court having jurisdiction of such civil or criminal cause is held, so far as the same is not inconsistent with the Constitution and laws of the United States, shall be extended to and govern the said courts in the trial and disposition of the cause, and, if it is of a criminal nature, in the infliction of punishment on the party found guilty."
2
The Court of Appeals held that this Court's decision in Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971), did not bar the enjoining of the state perjury prosecution, since the District Court's "finding of a bad faith prosecution establishes irreparable injury both great and immediate for purposes of the comity restraints discussed in Younger." 467 F.2d at 122.
3
See Fed.Rule Civ.Proc. 25(a)(1). As the Court of Appeals observed, this Rule "does not resolve the question [of] what law of survival of actions should be applied in this case. [It] simply describes the manner in which parties are to be substituted in federal court once it is determined that the applicable substantive law allows the action to survive a party's death." 545 F.2d 980, 982 (CA5 1977) (emphasis in original)
4
The dissenting opinion argues that, despite this lack of coverage, "the laws of the United States" are not necessarily "[un]suitable" or "deficient in the provisions necessary." 42 U.S.C. § 1988; see post, at 595. Both courts below found such a deficiency, however, and respondent here agrees with them. 545 F.2d, at 983; Shaw v. Garrison, 391 F.Supp. 1353, 1358-1361 (1975); Brief for Respondent 6.
There is a survivorship provision in 42 U.S.C. § 1986, but this statute applies only with regard to "the wrongs . . . mentioned in [42 U.S.C.] section 1985." Although Shaw's complaint alleged causes of action under §§ 1985 and 1986, the District Court dismissed this part of the complaint for failure to state a claim upon which relief could be granted. 391 F.Supp., at 1356, 1369-1371. These dismissals were not challenged on the interlocutory appeal and are not at issue here.
5
Section 1988's reference to "the common law" might be interpreted as a reference to the decisional law of the forum State, or as a reference to the kind of general common law that was an established part of our federal jurisprudence by the time of § 1988's passage in 1866, see Swift v. Tyson, 16 Pet. 1, 10 L.Ed. 865 (1842); cf. Moor v. County of Alameda, 411 U.S., at 702 n. 14, 93 S.Ct., at 1792 (referring to the survivorship rule "at common law"). The latter interpretation has received some judicial and scholarly support. See, e. g. Basista v. Weir, 340 F.2d 74, 85-86 n. 10 (CA3 1965); Theis, Shaw v. Garrison: Some Observations on 42 U.S.C. § 1988 and Federal Common Law, 36 La.L.Rev. 681, 684-685 (1976). See also Carey v. Piphus, 435 U.S. 247, 258 n. 13, 98 S.Ct. 1042, 1049 n. 13, 55 L.Ed.2d 252 (1978). It makes no ifference for our purposes which interpretation is the correct one, because Louisiana has a survivorship statute that, under the terms of § 1988, plainly governs this case.
6
An action for defamation abates on the plaintiff's death in the vast majority of States, see W. Prosser, Law of Torts 900-901 (4th ed. 1971), and a large number of States also provide for abatement of malicious prosecution actions, see, e. g., Dean v. Shirer, 547 F.2d 227, 229-230 (CA4 1976) (South Carolina law); Hall v. Wooten, 506 F.2d 564, 569 (CA6 1974) (Kentucky law). See also 391 F.Supp., at 1364 n. 17. In Louisiana, an action for defamation or malicious prosecution would apparently survive (assuming that one of the relatives specified in La.Civ.Code Ann., Art. 2315 (West 1971), survives the deceased, as discussed in text infra ); such an action seems not to fall into the category of "strictly personal" actions, La.Code Civ.Proc.Ann., Art. 428 (West 1960), that automatically abate on the plaintiff's death. See Johnson, Death on the Callais Coach: The Mystery of Louisiana Wrongful Death and Survival Actions, 37 La.L.Rev. 1, 6 n. 23, 52, and n. 252 (1976). See also Official Revision Comment (c) to La.Code Civ.Proc.Ann., Art. 428.
7
For those actions that do not abate automatically on the plaintiff's death, most States apparently allow the personal representative of the deceased to be substituted as plaintiff. See 391 F.Supp., at 1364, and n. 18.
8
The reasonableness of Louisiana's approach is suggested by the fact that several federal statutes providing for survival take the same approach, limiting survival to specific named relatives. See, e. g., 33 U.S.C. § 908(d) (1970 ed., Supp. V) (Longshoremen's and Harbor Workers' Compensation Act); 45 U.S.C. § 59 (Federal Employers' Liability Act). The approach taken by federal statutes in other substantive areas cannot, of course, bind a federal court in a § 1983 action, nor does the fact that a state survivorship statute may be reasonable by itself resolve the question whether it is "inconsistent with the Constitution and laws of the United States." 42 U.S.C. § 1988.
9
This does not, of course, preclude survival of a § 1983 action when such is allowed by state law, see Moor v. County of Alameda, 411 U.S., at 702-703, n. 14, 93 S.Ct., at 1792, n. 14, nor does it preclude recovery by survivors who are suing under § 1983 for injury to their own interests.
10
In order to find even a marginal influence on behavior as a result of Louisiana's survivorship provisions, one would have to make the rather farfetched assumptions that a state official had both the desire and the ability deliberately to select as victims only those persons who would die before conclusion of the § 1983 suit (for reasons entirely unconnected with the official illegality) and who would not be survived by any close relatives.
11
In addition to referring to the policies und rlying § 1983, the Court of Appeals based its decision in part on the desirability of uniformity in the application of the civil rights laws and on the fact that the federal courts have allowed survival "in other areas of particular federal concern . . . where statutory guidance on the matter is lacking." 545 F.2d, at 985; see supra, at 588. With regard to the latter point, however, we do not find "statutory guidance . . . lacking"; § 1988 instructs us to turn to state laws, unless an "inconsistency" with federal law is found. While the courts below found such an inconsistency, we do not agree, as discussed in text supra, and hence the survivorship rules in areas where the courts are free to develop federal common law—without first referring to state law and finding an inconsistency—can have no bearing on our decision here. Similarly, whatever the value of nationwide uniformity in areas of civil rights enforcement where Congress has not spoken, in the areas to which § 1988 is applicable Congress has provided direction, indicating that state law will often provide the content of the federal remedial rule. This statutory reliance on state law obviously means that there will not be nationwide uniformity on these issues.
1
Moor v. County of Alameda, 411 U.S. 693, 93 S.Ct. 1785, 36 L.Ed.2d 596 (1973), is not to the contrary. There, the Court held that § 1988 does not permit the importation from state law of a new cause of action. In passing dictum, 411 U.S., at 702 n. 14, 93 S.Ct., at 1792, the Court noted the approach taken to the survival problem by several lower federal courts. In those cases, because the applicable state statute permitted survival, the lower courts had little occasion to consider the need for a uniform federal rule.
2
"The laws of the several states, except where the Constitution or treaties of the United States or Acts of Congress otherwise require or provide, shall be regarded as rules of decision in civil actions in the courts of the United States, in cases where they apply."
| 78
|
436 U.S. 499
98 S.Ct. 1942
56 L.Ed.2d 486
State of MICHIGAN, Petitioner,v.Loren TYLER and Robert Tompkins.
No. 76-1608.
Argued Jan. 10, 1978.
Decided May 31, 1978.
Syllabus
Shortly before midnight on January 21, 1970, a fire broke out in respondents' furniture store, to which the local fire department responded. When the fire chief arrived at about 2 a. m., as the smoldering embers were being doused, the discovery of plastic containers of flammable liquid was reported to him, and after he had entered the building to examine the containers, he summoned a police detective to investigate possible arson. The detective took several pictures but ceased further investigation because of the smoke and steam. By 4 a. m. the fire had been extinguished and the firefighters departed. The fire chief and detective removed the containers and left. At 8 a. m. the chief and his assistant returned for a cursory examination of the building. About an hour later the assistant and the detective made another examination and removed pieces of evidence. On February 16 a member of the state police arson section took photographs at the store and made an inspection, which was followed by several other visits, at which time additional evidence and information were obtained. Respondents were subsequently charged with conspiracy to burn real property and other offenses. Evidence secured from the building and the testimony of the arson specialist were used at respondents' trial, which resulted in their convictions, notwithstanding their objections that no warrants or consent had been obtained for entries and inspection of the building and seizure of evidentiary items. The State Supreme Court reversed respondents' convictions and remanded the case for a new trial, concluding that "[once] the blaze [has been] extinguished and the firefighters have left the premises, a warrant is required to re-enter and search the premises, unless there is consent or the premises have been abandoned." Held:
1. Official entries to investigate the cause of a fire must adhere to the warrant procedures of the Fourth Amendment as made applicable to the States by the Fourteenth Amendment. Since all the entries in this case were "without proper consent" and were not "authorized by a valid search warrant," each one is illegal unless it falls within one of the "certain carefully defined classes of cases" for which warrants are not mandatory. Camara v. Municipal Court, 387 U.S. 523, 528-529, 87 S.Ct. 1727, 1730-1731, 18 L.Ed.2d 930. Pp. 504-509.
(a) There is no diminution in a person's reasonable expectation of privacy or in the protection of the Fourth Amendment simply because the official conducting the search is a firefighter rather than a policeman, or because his purpose is to ascertain the cause of a fire rather than to look for evidence of a crime. Searches for administrative purposes, like searches for evidence of crime, are encompassed by the Fourth Amendment. The showing of probable cause necessary to secure a warrant may vary with the object and intrusiveness of the search, but the necessity for the warrant persists. Pp. 505-506.
(b) To secure a warrant to investigate the cause of a fire, an official must show more than the bare fact that a fire occurred. The magistrate's duty is to assure that the proposed search will be reasonable, a determination that requires inquiry into the need for the intrusion, on the one hand, and the threat of disruption to the occupant, on the other. Pp. 506-508.
2. A burning building clearly presents an exigency of sufficient proportions to render a warrantless entry "reasonable," and, once in the building to extinguish a blaze, and for a reasonable time thereafter, firefighters may seize evidence of arson that is in plain view and investigate the causes of the fire. Thus no Fourth and Fourteenth Amendment violations were committed by the firemen's entry to extinguish the blaze at respondents' store, nor by the fire chief's removal of the plastic containers. P. 509.
3. On the facts of this case, moreover, no warrant was necessary for the morning re-entries of the building and seizure of evidence on January 22 after the 4 a. m. departure of the fire chief and other personnel since these were a continuation of the first entry, which was temporarily interrupted by poor visibility. Pp. 510-511.
4. The post-January 22 entries were clearly detached from the initial exigency, and since these entries were made without warrants and without consent, they violated the Fourth and Fourteenth Amendments. Evidence obtained from such entries must be excluded at respondents' retrial. P. 511.
399 Mich. 564, 250 N.W.2d 467, affirmed.
Jeffrey Butler, Pontiac, Mich., for petitioner, pro hac vice, by special leave of Court.
Jesse R. Bacalis, Detroit, Mich., for respondents.
Mr. Justice STEWART delivered the opinion of the Court.
1
The respondents, Loren Tyler and Robert Tompkins, were convicted in a Michigan trial court of conspiracy to burn real property in violation of Mich.Comp.Laws § 750.157a (1970).1 Various pieces of physical evidence and testimony based on personal observation, all obtained through unconsented and warrantless entries by police and fire offi ials onto the burned premises, were admitted into evidence at the respondents' trial. On appeal, the Michigan Supreme Court reversed the convictions, holding that "the warrantless searches were unconstitutional and that the evidence obtained was therefore inadmissible." 399 Mich. 564, 584, 250 N.W.2d 467, 477 (1977). We granted certiorari to consider the applicability of the Fourth and Fourteenth Amendments to official entries onto fire-damaged premises. 434 U.S. 814, 98 S.Ct. 50, 51 L.Ed.2d 70.
2
* Shortly before midnight on January 21, 1970, a fire broke out at Tyler's Auction, a furniture store in Oakland County, Mich. The building was leased to respondent Loren Tyler, who conducted the business in association with respondent Robert Tompkins. According to the trial testimony of various witnesses, the fire department responded to the fire and was "just watering down smoldering embers" when Fire Chief See arrived on the scene around 2 a. m. It was Chief See's responsibility "to determine the cause and make out all reports." Chief See was met by Lt. Lawson, who informed him that two plastic containers of flammable liquid had been found in the building. Using portable lights, they entered the gutted store, which was filled with smoke and steam, to examine the containers. Concluding that the fire "could possibly have been an arson," Chief See called Police Detective Webb, who arrived around 3:30 a. m. Detective Webb took several pictures of the containers and of the interior of the store, but finally abandoned his efforts because of the smoke and steam. Chief See briefly "[l]ooked throughout the rest of the building to see if there was any further evidence, to determine what the cause of the fire was." By 4 a. m. the fire had been extinguished and the firefighters departed. See and Webb took the two containers to the fire station, where they were turned over to Webb for safekeeping. There was neither consent nor a warrant for any of these entries into the building, nor for the removal of the containers. The respondents challenged the introduction of these containers at trial, but abandoned their objection in the State Supreme Court. 399 Mich., at 570, 250 N.W.2d, at 470.
3
Four hours after he had left Tyler's Auction, Chief See returned with Assistant Chief Somerville, whose job was to determine the "origin of all fires that occur within the Township." The fire had been extinguished and the building was empty. After a cursory examination they left, and Somerville returned with Detective Webb around 9 a. m. In Webb's words, they discovered suspicious "burn marks in the carpet, which [Webb] could not see earlier that morning, because of the heat, steam, and the darkness." They also found "pieces of tape, with burn marks, on the stairway." After leaving the building to obtain tools, they returned and removed pieces of the carpet and sections of the stairs to preserve these bits of evidence suggestive of a fuse trail. Somerville also searched through the rubble "looking for any other signs or evidence that showed how this fire was caused." Again, there was neither consent nor a warrant for these entries and seizures. Both at trial and on appeal, the respondents objected to the introduction of evidence thereby obtained.
4
On February 16 Sergeant Hoffman of the Michigan State Police Arson Section returned to Tyler's Auction to take photographs.2 During this visit or during another at about the same time, he checked the circuit breakers, had someone inspect the furnace, and had a television repairman examine the remains of several television sets found in the ashes. He also found a piece of fuse. Over the course of his several visits, Hoffman secured physical evidence and formed opinions that played a substantial role at trial in establishing arson as the cause of the fire and in refuting the respondents' testimony about what furniture had been lost. His entries into the building were without warrants or Tyler's consent, and were for the sole purpose "of making an investigation and seizing evidence." At the trial, respondents' attorney objected to the admission of physical evidence obtained during these visits, and also moved to strike all of Hoffman's testimony "because it was got in an illegal manner."3
5
The Michigan Supreme Court held that with only a few exceptions, any entry onto fire-damaged private property by fire or police officials is subject to the warrant requirements of the Fourth and Fourteenth Amendments. "[Once] the blaze [has been] extinguished and the firefighters have left the premises, a warrant is required to reenter and search the premises, unless there is consent or the premises have been abandoned." 399 Mich., at 583, 250 N.W.2d, at 477. Applying this principle, the court ruled that the series of warrantless entries that began after the blaze had been extinguished at 4 a. m. on January 22 violated the Fourth and Fourteenth Amendments.4 It found that the "record does not factually support a conclusion that Tyler had abandoned the fire-damaged premises" and accepted the lower court's finding that " '[c]onsent for the numerous searches was never obtained from defendant Tyler.' " Id., at 583, 570-571, 250 N.W.2d, at 476, 470. Accordingly, the court reversed the respondents' convictions and ordered a new trial.
II
6
The decisions of this Court firmly establish that the Fourth Amendment extends beyond the paradigmatic entry into a private dwelling by a law enforcement officer in search of the fruits or instrumentalities of crime. As this Court stated in Camara v. Municipal Court, 387 U.S. 523, 528, 87 S.Ct. 1727, 1730, 18 L.Ed.2d 930, the "basic purpose of this Amendment . . . is to safeguard the privacy and security of individuals against arbitrary invasions by governmental officials." The officials may be health, fire, or building inspectors. Their purpose may be to locate and abate a suspected public nuisance, or simply to perform a routine periodic inspection. The privacy that is invaded may be sheltered by the walls of a warehouse or other commercial establishment not open to the public. See v. City of Seattle, 387 U.S. 541, 87 S.Ct. 1737, 18 L.Ed.2d 943, Marshall v. Barlow's, Inc., 436 U.S. 307, 311-313, 98 S.Ct. 1816, 1819-1821, 56 L.Ed.2d 305. These deviations from the typical police search are thus clearly within the protection of the Fourth Amendment.
7
The petitioner argues, however, that an entry to investigate the cause of a recent fire is outside that protection because no individual privacy interests are threatened. If the occupant of the premises set the blaze, then, in the words of the petitioner's brief, his "actions show that he has no expectation of privacy" because "he has abandoned those premises within the meaning of the Fourth Amendment." And if the fire had other causes, "the occupants of the premises are treated as victims by police and fire officials." In the petitioner's view, "[t]he likelihood that they will be aggrieved by a possible intrusion into what little remains of their privacy in badly burned premises is negligible."
8
This argument is not persuasive. For even if the petitioner's contention that arson establishes abandonment be accepted, its second proposition—that innocent fire victims inevitably have no protectible expectations of privacy in whatever remains of their property—is contrary to common experience. People may go on living in their homes or working in their offices after a fire. Even when that is impossible, private effects often remain on the fire-damaged premises. The petitioner may be correct in the view that most innocent fire victims are treated courteously and welcome inspections of their property to ascertain the origin of the blaze, but "even if true, [this contention] is irrelevant to the question whether the . . . inspection is reasonable within the meaning of the Fourth Amendment." Camara, supra, 387 U.S., at 536, 87 S.Ct., at 1735. Once it is recognized that innocent fire victims retain the protection of the Fourth Amendment, the rest of the petitioner's argument unravels. For it is, of course, impossible to justify a warrantless search on the ground of abandonment by arson when that arson has not yet been proved, and a conviction cannot be used ex post facto to validate the introduction of evidence used to secure that same conviction.
9
Thus, there is no diminution in a person's reasonable expectation of privacy nor in the protection of the Fourth Amendment simply because the official conducting the search wears the uniform of a firefighter rather than a policeman, or because his purpose is to ascertain the cause of a fire rather than to look for evidence of a crime, or because the fire might have been started deliberately. Searches for administrative purposes, like searches for evidence of crime, are encompassed by the Fourth Amendment. And under that Amendment, "one governing principle, justified by history and by current experience, has consistently been followed: except in certain carefully defined classes of cases, a search of private property without proper consent is 'unreasonable' unless it has been authorized by a valid search warrant." Camara, supra, at 528-529, 87 S.Ct., at 1731. The showing of probable cause necessary to secure a warrant may vary with the object and intrusiveness of the search,5 but the necessity for the warrant persists.
10
The petitioner argues that no purpose would be served by requiring warrants to investigate the cause of a fire. This argument is grounded on the premise that the only fact that need be shown to justify an investigatory search is that a fire of undetermined origin has occurred on those premises. The petitioner contends that this consideration distinguishes this case from Camara, which concerned the necessity for warrants to conduct routine building inspections. Whereas the occupant of premises subjected to an unexpected building inspection may have no way of knowing the purpose or lawfulness of the entry, it is argued that the occupant of burned premises can hardly question the factual basis for fire officials' wanting access to his property. And whereas a magistrate performs the significant function of assuring that an agency's decision to conduct a routine inspection of a particular dwelling conforms with reasonable legislative or administrative standards, he can do little more than rubberstamp an application to search fire-damaged premises for the cause of the blaze. In short, where the justification for the search is as simple and as obvious to everyone as the fact of a recent fire, a magistrate's review would be a time-consuming formality of negligible protection to the occupant.
11
The petitioner's argument fails primarily because it is built on a faulty premise. To secure a warrant to investigate the cause of a fire, an official must show more than the bare fact that a fire has occurred. The magistrate's duty is to assure that the proposed search will be reasonable, a determination that requires inquiry into the need for the intrusion on the one hand, and the threat of disruption to the occupant on the other. For routine building inspections, a reasonable balance between these competing concerns is usually achieved by broad legislative or administrative guidelines specifying the purpose, frequency, scope, and manner of conducting the inspections. In the context of investigatory fire searches, which are not programmatic but are responsive to individual events, a more particularized inquiry may be necessary. The number of prior entries, the scope of the search, the time of day when it is proposed to be made, the lapse of time since the fire, the continued use of the building, and the owner's efforts to secure it against intruders might all be relevant factors. Even though a fire victim's privacy must normally yield to the vital social objective of ascertaining the cause of the fire, the magistrate can perform the important function of preventing harassment by keeping that invasion to a minimum. See See v. City of Seattle, 387 U.S., at 544-545, 87 S.Ct., at 1739-1740; United States v. Chadwick, 433 U.S. 1, 9, 97 S.Ct. 2476, 2482, 53 L.Ed.2d 538; Marshall v. Barlow's, Inc., 436 U.S., at 323, 98 S.Ct., at 1826.
12
In addition, even if fire victims can be deemed aware of the factual justification for investigatory searches, it does not follow that they will also recognize the legal authority for such searches. As the Court stated in Camara, "when the inspector demands entry [without a warrant], the occupant has no way of knowing whether enforcement of the municipal code involved requires inspection of his premises, no way of knowing the lawful limits of the inspector's power to search, and no way of knowing whether the inspector himself is acting under proper authorization." 387 U.S., at 532, 87 S.Ct., at 1732. Thus, a major function of the warrant is to provide the property owner with sufficient information to reassure him of the entry's legality. See United States v. Chadwick, supra, 433 U.S., at 9, 97 S.Ct., at 2482.
13
In short, the warrant requirement provides significant protection for fire victims in this context, just as it does for property owners faced with routine building inspections. As general matter, then, official entries to investigate the cause of a fire must adhere to the warrant procedures of the Fourth Amendment. In the words of the Michigan Supreme Court: "Where the cause [of the fire] is undetermined, and the purpose of the investigation is to determine the cause and to prevent such fires from occurring or recurring, a . . . search may be conducted pursuant to a warrant issued in accordance with reasonable legislative or administrative standards or, absent their promulgation, judicially prescribed standards; if evidence of wrongdoing is discovered, it may, of course, be used to establish probable cause for the issuance of a criminal investigative search warrant or in prosecution." But "[i]f the authorities are seeking evidence to be used in a criminal prosecution, the usual standard [of probable cause] will apply." 399 Mich., at 584, 250 N.W.2d, at 477. Since all the entries in this case were "without proper consent" and were not "authorized by a valid search warrant," each one is illegal unless it falls within one of the "certain carefully defined classes of cases" for which warrants are not mandatory. Camara, 387 U.S., at 528-529, 87 S.Ct., at 1731.
III
14
Our decisions have recognized that a warrantless entry by criminal law enforcement officials may be legal when there is compelling need for official action and no time to secure a warrant. Warden v. Hayden, 387 U.S. 294, 87 S.Ct. 1642, 18 L.Ed.2d 782 (warrantless entry of house by police in hot pursuit of armed robber); Ker v. California, 374 U.S. 23, 83 S.Ct. 1623, 10 L.Ed.2d 726 (warrantless and unannounced entry of dwelling by police to prevent imminent destruction of evidence). Similarly, in the regulatory field, our cases have recognized the importance of "prompt inspections, even without a warrant, . . . in emergency situations." Camara, supra, 387 U.S., at 539, 87 S.Ct., at 1736, citing North American Cold Storage Co. v. City of Chicago, 211 U.S. 306, 29 S.Ct. 101, 53 L.Ed. 195 (seizure of unwholesome food); Jacobson v. Massachusetts, 197 U.S. 11, 25 S.Ct. 358, 49 L.Ed. 643 (compulsory smallpox vaccination); Compagnie Francaise v. Board of Health, 186 U.S. 380, 22 S.Ct. 812, 46 L.Ed. 1209 (health quarantine).
15
A burning building clearly presents an exigency of sufficient proportions to render a warrantless entry "reasonable." Indeed, it would defy reason to suppose that firemen must secure a warrant or consent before entering a burning structure to put out the blaze. And once in a building for this purpose, firefighters may seize evidence of arson that is in plain view. Coolidge v. New Hampshire, 403 U.S. 443, 465-466, 91 S.Ct. 2022, 2037-2038, 29 L.Ed.2d 564. Thus, the Fourth and Fourteenth Amendments were not violated by the entry of the firemen to extinguish the fire at Tyler's Auction, nor by Chief See's removal of the two plastic containers of flammable liquid found on the floor of one of the showrooms.
16
Although the Michigan Supreme Court appears to have accepted this principle, its opinion may be read as holding that the exigency justifying a warrantless entry to fight a fire ends, and the need to get a warrant begins, with the dousing of the last flame. 399 Mich., at 579, 250 N.W.2d, at 475. We think this view of the firefighting function is unrealistically narrow, however. Fire officials are charged not only with extinguishing fires, but with finding their causes. Prompt determination of the fire's origin may be necessary to prevent its recurrence, as through the detection of continuing dangers such as faulty wiring or a defective furnace. Immediate investigation may also be necessary to preserve evidence from intentional or accidental destruction. And, of course, the sooner the officials complete their duties, the less will be their subsequent interference with the privacy and the recovery efforts of the victims. For these reasons, officials need no warrant to remain in a build ng for a reasonable time to investigate the cause of a blaze after it has been extinguished.6 And if the warrantless entry to put out the fire and determine its cause is constitutional, the warrantless seizure of evidence while inspecting the premises for these purposes also is constitutional.
IV
A.
17
The respondents argue, however, that the Michigan Supreme Court was correct in holding that the departure by the fire officials from Tyler's Auction at 4 a. m. ended any license they might have had to conduct a warrantless search. Hence, they say that even if the firemen might have been entitled to remain in the building without a warrant to investigate the cause of the fire, their re-entry four hours after their departure required a warrant.
18
On the facts of this case, we do not believe that a warrant was necessary for the early morning re-entries on January 22. As the fire was being extinguished, Chief See and his assistants began their investigation, but visibility was severely hindered by darkness, steam, and smoke. Thus they departed at 4 a. m. and returned shortly after daylight to continue their investigation. Little purpose would have been served by their remaining in the building, except to remove any doubt about the legality of the warrantless search and seizure later that same morning. Under these circumstances, we find that the morning entries were no more than an actual continuation of the first, and the lack of a warrant thus did not invalidate the resulting seizure of evidence.
B
19
The entries occurring after January 22, however, were clearly detached from the initial exigency and warrantless entry. Since all of these searches were conducted without valid warrants and without consent, they were invalid under the Fourth and Fourteenth Amendments, and any evidence obtained as a result of those entries must, therefore, be excluded at the respondents' retrial.
V
20
In summation, we hold that an entry to fight a fire requires no warrant, and that once in the building, officials may remain there for a reasonable time to investigate the cause of the blaze. Thereafter, additional entries to investigate the cause of the fire must be made pursuant to the warrant procedures governing administrative searches. See Camara, 387 U.S., at 534-539, 87 S.Ct., at 1733-1736, See v. City of Seattle, 387 U.S., at 544-545, 87 S.Ct., at 1739-1740; Marshall v. iBarlow's, Inc., 436 U.S., at 320-321, 98 S.Ct., at 1824-1825. Evidence of arson discovered in the course of such investigations is admissible at trial, but if the investigating officials find probable cause to believe that arson has occurred and require further access to gather evidence for a possible prosecution, they may obtain a warrant only upon a traditional showing of probable cause applicable to searches for evidence of crime. United States v. Ventresca, 380 U.S. 102, 85 S.Ct. 741, 13 L.Ed.2d 684.
21
These principles require that we affirm the judgment of the Michigan Supreme Court ordering a new trial.7
22
Affirmed.
23
Mr. Justice BLACKMUN joins the judgment of the Court and Parts I, III, and IV-A of its opinion.
24
Mr. Justice BRENNAN took no part in the consideration or decision of this case.
25
Mr. Justice STEVENS, concurring in part and concurring in the judgment.
26
Because Part II of the Court's opinion in this case, like the opinion in Camara v. Municipal Court, 387 U.S. 523, 87 S.Ct. 1727, 18 L.Ed.2d 930, seems to assume that an official search must either be conducted pursuant to a warrant or not take place at all, I cannot join its reasoning.
27
In particular, I cannot agree with the Court's suggestion that, if no showing of probable cause could be made, "the warrant procedures governing administrative searches," ante, at 511, would have complied with the Fourth Amendment. In my opinion, an "administrative search warrant" does not satisfy the requirements of the Warrant Clause.1 See Marshall v. Barlow's, Inc., 436 U.S. 307, 325, 98 S.Ct. 1816, 1827, 56 L.Ed.2d 305 (Stevens, J., dissenting). Nor does such a warrant make an otherwise unreasonable search reasonable.
28
A warrant provides authority for an unannounced, immediate entry and search. No notice is given when an application for a warrant is made and no notice precedes its execution; when issued, it authorizes entry by force.2 In my view, when there is no probable cause to believe a crime has been committed and when there is no special enforcement need to justify an unannounced entry,3 the Fourth Amendment neither requires nor sanctions an abrupt and peremptory confrontation between sovereign and citizen.4 In such a case, to comply with the constitutional requirement of reasonableness, I believe the sovereign must provide fair notice of an inspection.5
29
The Fourth Amendment interests involved in this case could have been protected in either of two ways—by a warrant, if probable cause existed; or by fair notice, if neither probable cause nor a special law enforcement need existed. Since the entry on February 16 was not authorized by a warrant and not preceded by advance notice, I concur in the Court's judgment and in Parts I, III, and IV of its opinion.
30
Mr. Justice WHITE, with whom Mr. Justice MARSHALL joins, concurring in part and dissenting in part.
31
I join in all but Part IV-A of the opinion, from which I dissent. I agree with the Court that:
32
"[A]n entry to fight a fire requires no warrant, and that once in the building, officials may remain there for a reasonable time to investigate the cause of the blaze. Thereafter, additional entries to investigate the cause of the fire must be made pursuant to the warrant procedures governing administrative searches." Ante, at 1951.
33
The Michigan Supreme Court found that the warrantless searches, at 8 and 9 a. m. were not, in fact, continuations of the earlier entry under exigent circumstances* and therefore ruled inadmissible all evidence derived from those searches. The Court offers no sound basis for overturning this conclusion of the state court that the subsequent re-entries were distinct from the original entry. Even if, under the Court's "reasonable time" criterion, the firemen might have stayed in the building for an additional four hours—a proposition which is by no means clear—the fact remains that the firemen did not choose to remain and continue their search, but instead locked the door and departed from the premises entirely. The fact that the firemen were willing to leave demonstrates that the exigent circumstances justifying their original warrantless entry were no longer present. The situation is thus analogous to that in G. M. Leasing Corp. v. United States, 429 U.S. 338, 358-359, 97 S.Ct. 619, 631, 50 L.Ed.2d 530 (1977):
34
"The agents' own action . . . in their delay for two days following their first entry, and for more than one day following the observation of materials being moved from the office, before they made the entry during which they seized the records, is sufficient to support the District Court's implicit finding that there were no exigent circumstances. . . ."
35
To hold that some subsequent re-entries are "continuations" of earlier ones will not aid firemen, but confuse them, for it will be difficult to predict in advance how a court might view a re-entry. In the end, valuable evidence may be excluded for failure to seek a warrant that might have easily been obtained.
36
Those investigating fires and their causes deserve a clear demarcation of the constitutional limits of their authority. Today's opinion recognizes the need for speed and focuses attention on fighting an ongoing blaze. The firetruck need not stop at the courthouse in rushing to the flames. But once the fire has been extinguished and the firemen have left the premises, the emergency is over. Further intrusion on private property can and should be accompanied by a warrant indicating the authority under which the firemen presume to enter and search.
37
There is another reason for holding that re-entry after the initial departure required a proper warrant. The state courts found that at the time of the first re-entry a criminal investigation was under way and that the purpose of the officers in re-entering was to gather evidence of crime. Unless we are to ignore these findings, a warrant was necessary. Camara v. Municipal Court, 387 U.S. 523, 87 S.Ct. 1727, 18 L.Ed.2d 930 (1967), and See v. City of Seattle, 387 U.S. 541, 87 S.Ct. 1737, 18 L.Ed.2d 943 (1967), did not differ with Frank v. Maryland, 359 U.S. 360, 79 S.Ct. 804, 3 L.Ed.2d 877 (1959), that searches for criminal evidence are of special significance under the Fourth Amendment.
38
Mr. Justice REHNQUIST, dissenting.
39
I agree with my Brother STEVENS, for the reasons expressed in his dissenting opinion in Marshall v. Barlow's, Inc., 436 U.S. 307, 328, 98 S.Ct. 1816, 1827, 56 L.Ed.2d 305 (1978), that the "Warrant Clause has no application to routine, regulatory inspections of commercial premises." Since in my opinion the searches involved in this case fall within that category, I think the only appropriate inquiry is whether they were reasonable. The Court does not dispute that the entries which occurred at the time of the fire and the next morning were entirely justified, and I see nothing to indicate that the subsequent searches were not also eminently reasonable in light of all the circumstances.
40
In evaluating the reasonableness of the later searches, their most obvious feature is that they occurred after a fire which had done substantial damage to the premises, including the destruction of most of the interior. Thereafter the premises were not being used and very likely could not have been used for business purposes, at least until substantial repairs had taken place. Indeed, there is no indication in the record that after the fire Tyler ever made any attempt to secure the premises. As a result, the fire department was forced to lock up the building to prevent curious bystanders from entering and suffering injury. And as far as the record reveals, Tyler never objected to this procedure or attempted to reclaim the premises for himself.
41
Thus, regardless of whether the premises were technically "abandoned" within the meaning of the Fourth Amendment, cf. Abel v. United States, 362 U.S. 217, 241, 80 S.Ct. 683, 698, 4 L.Ed.2d 668 (1960); Hester v. United States, 265 U.S. 57, 44 S.Ct. 445, 68 L.Ed. 898 (1924), it is clear to me that no purpose would have been served by giving Tyler notice of the intended search or by requiring that the search take place during the hours which in other situations might be considered the only "reasonable" hours to conduct a regulatory search. In fact, as I read the record, it appears that Tyler not only had notice that the investigators were occasionally entering the premises for the purpose of determining the cause of the fire, but he never voiced the slig test objection to these searches and actually accompanied the investigators on at least one occasion. App. 54-57. In fact, while accompanying the investigators during one of these searches, Tyler himself suggested that the fire very well may have been caused by arson. Id., at 56. This observation, coupled with all the other circumstances, including Tyler's knowledge of, and apparent acquiescence in, the searches, would have been taken by any sensible person as an indication that Tyler thought the searches ought to continue until the culprit was discovered; at the very least they indicated that he had no objection to these searches. Thus, regardless of what sources may serve to inform one's sense of what is reasonable, in the circumstances of this case I see nothing to indicate that these searches were in any way unreasonable for purposes of the Fourth Amendment.
42
Since the later searches were just as reasonable as the search the morning immediately after the fire in light of all these circumstances, the admission of evidence derived therefrom did not, in my opinion, violate respondents' Fourth and Fourteenth Amendment rights. I would accordingly reverse the judgment of the Supreme Court of Michigan which held to the contrary.
1
In addition, Tyler was convicted of the substantive offenses of burning real property, Mich.Comp.Laws § 750.73 (1970), and burning insured property with intent to defraud, Mich.Comp.Laws § 750.75 (1970).
2
Sergeant Hoffman had entered the premises with other officials at least twice before, on January 26 and 29. No physical evidence was obtained as a result of these warrantless entries.
3
The State's case was substantially buttressed by the testimony of Oscar Frisch, a former employee of the respondents. He described helping Tyler and Tompkins move valuable items from the store and old furniture into the store a few days before the fire. He also related that the respondents had told him there would be a fire on January 21, and had instructed him to place mattresses on top of other objects so that they would burn better.
4
Having concluded that warrants should have been secured for the post-fire searches, the court explained that different standards of probable cause governed searches to determine the cause of a fire and searches to gather evidence of crime. It then described what standard of probable cause should govern all the searches in this case:
"While it may be no easy task under some circumstances to distinguish as a factual matter between an administrative inspection and a criminal investigation, in the instant case the Court is not faced with that task. Having lawfully discovered the plastic containers of flammable liquid and other evidence of arson before the fire was extinguished, Fire Chief See focused his attention on assembling proof of arson and began a criminal investigation. At that point there was probable cause for issuance of a criminal investigative search warrant." 399 Mich., at 577, 250 N.W.2d, at 474 (citations omitted).
5
For administrative searches conducted to enforce local building, health, or fire codes, " 'probable cause' to issue a warrant to inspect . . . exist[s] if reasonable legislative or administrative standards for conducting an area inspection are satisfied with respect to a particular dwelling. Such standards, which will vary with the municipal program being enforced, may be based upon the passage of time, the nature of the building (e. g., a multi-family apartment house), or the condition of the entire area, but they will not necessarily depend upon specific knowledge of the condition of the particular dwelling." Camara, 387 U.S., at 538, 87 S.Ct., at 1736; Marshall v. Barlow's, Inc., 436 U.S., at 320-321, 98 S.Ct., at 1824- 825. See LaFave, Administrative Searches and the Fourth Amendment: The Camara and See Cases, 1967 Sup.Ct.Rev. 1, 18-20.
6
The circumstances of particular fires and the role of firemen and investigating officials will vary widely. A fire in a single-family dwelling that clearly is extinguished at some identifiable time presents fewer complexities than those likely to attend a fire that spreads through a large apartment complex or that engulfs numerous buildings. In the latter situations, it may be necessary for officials—pursuing their duty both to extinguish the fire and to ascertain its origin—to remain on the scene for an extended period of time repeatedly entering or re-entering the building or buildings, or portions thereof. In determining what constitutes a "reasonable time to investigate," appropriate recognition must be given to the exigencies that confront officials serving under these conditions, as well as to individuals' reasonable expectations of privacy.
7
The petitioner alleges that respondent Tompkins lacks standing to object to the unconstitutional sea ches and seizures. The Michigan Supreme Court refused to consider the State's argument, however, because the prosecutor failed to raise the issue in the trial court or in the Michigan Court of Appeals. 399 Mich., at 571, 250 N.W.2d at 470-471. We read the state court's opinion to mean that in the absence of a timely objection by the State, a defendant will be presumed to have standing. Failure to present a federal question in conformance with state procedure constitutes an adequate and independent ground of decision barring review in this Court, so long as the State has a legitimate interest in enforcing its procedural rule. Henry v. Mississippi, 379 U.S. 443, 447, 85 S.Ct. 564, 567, 13 L.Ed.2d 408. See, Safeway Stores v. Oklahoma Grocers, 360 U.S. 334, 342 n.7, 79 S.Ct. 1196, 1201, 3 L.Ed.2d 1280; Cardinale v. Louisiana, 394 U.S. 437, 438, 89 S.Ct. 1161, 1162, 22 L.Ed.2d 398. The petitioner does not claim that Michigan's procedural rule serves no legitimate purpose. Accordingly, we do not entertain the petitioner's standing claim which the state court refused to consider because of procedural default.
1
The Warrant Clause of the Fourth Amendment provides that "no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized."
2
See Wyman v. James, 400 U.S. 309, 323-324, 91 S.Ct. 381, 388, 389, 27 L.Ed.2d 408. As the Court observed in Wyman, a warrant is not simply a device providing procedural protections for the citizen; it also grants the government increased authority to invade the citizen's privacy. See Miller v. United States, 357 U.S. 301, 307-308, 78 S.Ct. 1190, 1194-1195, 2 L.Ed.2d 1332.
3
In this case, there obviously was a special enforcement need justifying the initial entry to extinguish the fire, and I agree that the search on the morning after the fire was a continuation of that entirely legal entry. A special enforcement need can, of course, be established on more than a case-by-case basis, especially if there is a relevant legislative determination of need. See Marshall v. Barlow's, Inc., 436 U.S. 325, 98 S.Ct. 1825 (Stevens, J., dissenting).
4
The Fourth Amendment ensures "[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures." (Emphasis added.) Surely this broad protection encompasses the expectation that the government cannot demand immediate entry when it has neither probable cause to suspect illegality nor any other pressing enforcement concern. Yet under the rationale in Part II of the Court's opinion, the less reason an officer has to suspect illegality, the less justification he need give the magistrate in order to conduct an unannounced search. Under this rationale, the police will have no incentive—indeed they have a disincentive—to establish probable cause before obtaining authority to conduct an unannounced search.
5
See LaFave, Administrative Searches and the Fourth Amendment: The Camara and See Cases, 1967 Sup.Ct.Rev. 1. The requirement of giving notice before conducting a routine administrative search is hardly unprecedented. It closely parallels existing procedures for administrative subpoenas, see, e.g., 15 U.S.C. § 1312 (1976 ed.), and is, as Professor LaFave points out, embodied in English law and practice. See LaFave, supra, at 31-32.
*
The Michigan Supreme Court recognized that "[i]f there are exigent circumstances, such as reason to believe that the destruction of evidence is imminent or that a further entry of the premises is necessary to prevent the recurrence of the fire, no warrant is required and evidence discovered is admissible." 399 Mich. 564, 578, 250 N.W.2d 467, 474 (1977). It found, however, that "[I]n the instant case there were no exigent circumstances justifying the searches made hours, days or weeks after the fire was extinguished." Id., at 579, 250 N.W.2d, at 475.
| 01
|
436 U.S. 547
98 S.Ct. 1970
56 L.Ed.2d 525
James ZURCHER, etc., et al., Petitioners,v.The STANFORD DAILY et al. Louis P. BERGNA, District Attorney, and Craig Brown, Petitioners, v. The STANFORD DAILY et al.
Nos. 76-1484, 76-1600.
Argued Jan. 17, 1978.
Decided May 31, 1978.
Rehearing Denied Oct. 2, 1978.
See 439 U.S. 885, 99 S.Ct. 231, 232.
Syllabus
Respondents, a student newspaper that had published articles and photographs of a clash between demonstrators and police at a hospital, and staff members, brought this action under 42 U.S.C. § 1983 against, among others, petitioners, law enforcement and district attorney personnel, claiming that a search pursuant to a warrant issued on a judge's finding of probable cause that the newspaper (which was not involved in the unlawful acts) possessed photographs and negatives revealing the identities of demonstrators who had assaulted police officers at the hospital had deprived respondents of their constitutional rights. The District Court granted declaratory relief, holding that the Fourth Amendment as made applicable to the States by the Fourteenth forbade the issuance of a warrant to search for materials in possession of one not suspected of crime unless there is probable cause, based on facts presented in a sworn affidavit, to believe that a subpoena duces tecum would be impracticable. Failure to honor the subpoena would not alone justify issuance of a warrant; it would also have to appear that the possessor of the objects sought would disregard a court order not to remove or destroy them. The court also held that where the innocent object of the search is a newspaper, First Amendment interests make the search constitutionally permissible "only in the rare circumstance where there is a clear showing that (1) important materials will be destroyed or removed from the jurisdiction; and (2) a restraining order would be futile." The Court of Appeals affirmed. Held:
1. A State is not prevented by the Fourth and Fourteenth Amendments from issuing a warrant to search for evidence simply because the owner or possessor of the place to be searched is not reasonably suspected of criminal involvement. The critical element in a re sonable search is not that the property owner is suspected of crime but that there is reasonable cause to believe that the "things" to be searched for and seized are located on the property to which entry is sought. Pp. 553-560.
2. The District Court's new rule denying search warrants against third parties and insisting on subpoenas would undermine law enforcement efforts since search warrants are often used early in an investigation before all the perpetrators of a crime have been identified; and the seemingly blameless third party may be implicated. The delay in employing a subpoena duces tecum could easily result in disappearance of the evidence. Nor would the cause of privacy be served since search warrants are more difficult to obtain than subpoenas. Pp. 560-563.
3. Properly administered, the preconditions for a search warrant (probable cause, specificity with respect to the place to be searched and the things to be seized, and overall reasonableness), which must be applied with particular exactitude when First Amendment interests would be endangered by the search, are adequate safeguards against the interference with the press' ability to gather, analyze, and disseminate news that respondents claim would ensue from use of warrants for third-party searches of newspaper offices. Pp. 563-567.
550 F.2d 464, reversed.
W. Eric Collins, San Francisco, Cal., for petitioners in No. 76-1600; Robert K. Booth, Jr., Palo Alto, Cal., for petitioners in No. 76-1484.
Jerome B. Falk, Jr., San Francisco, Cal., for respondents.
[Amicus Curiae Information from 548-549 intentionally omitted]
Mr. Justice WHITE delivered the opinion of the Court.
1
The terms of the Fourth Amendment, applicable to the States by virtue of the Fourteenth Amendment, are familiar:
2
"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
As heretofore understood, the Amendment has not been a barrier to warrants to search property on which there is probable cause to believe that fruits, instrumentalities, or evidence of crime is located, whether or not the owner or possessor of the premises to be searched is himself reasonably suspected of complicity in the crime being investigated. We are now asked to reconstrue the Fourth Amendment and to hold for the first time that when the place to be searched is occupied by a person not then a suspect, a warrant to search for criminal objects and evidence reasonably believed to be located there should not issue except in the most unusual circumstances, and that except in such circumstances, a subpoena duces tecum must be relied upon to recover the objects or evidence sought.
4
* Late in the day on Friday, April 9, 1971, officers of the Palo Alto Police Department and of the Santa Clara County Sheriff's Department responded to a call from the director of the Stanford University Hospital requesting the removal of a large group of demonstrators who had seized the hospital's administrative offices and occupied them since the previous afternoon. After several futile efforts to persuade the demonstrators to leave peacefully, more drastic measures were employed. The demonstrators had barricaded the doors at both ends of a hall adjacent to the administrative offices. The police chose to force their way in at the west end of the corridor. As they did so, a group of demonstrators emerged through the doors at the east end and, armed with sticks and clubs, attacked the group of nine police officers stationed there. One officer was knocked to the floor and struck repeatedly on the head; another suffered a broken shoulder. All nine were injured.1 There were no police photographers at the east doors, and most bystanders and reporters were on the west side. The officers themselves were able to identify only two of their assailants, but one of them did see at least one person photographing the assault at the east doors.
5
On Sunday, April 11, a special edition of the Stanford Daily (Daily), a student newspaper published at Stanford University, carried articles and photographs devoted to the hospital protest and the violent clash between demonstrators and police. The photographs carried the byline of a Daily staff member and indicated that he had been at the east end of the hospital hallway where he could have photographed the assault on the nine officers. The next day, the Santa Clara County District Attorney's Office secured a warrant from the Municipal Court for an immediate search of the Daily's offices for negatives, film, and pictures showing the events and occurrences at the hospital on the evening of April 9. The warrant issued on a finding of "just, probable and reasonable cause for believing that: Negatives and photographs and films, evidence material and relevant to the identity of the perpetrators of felonies, to wit, Battery on a Peace Officer, and Assault with Deadly Weapon, will be located [on the premises of the Daily]." App. 31-32. The warrant affidavit contained no allegation or indication that members of the Daily staff were in any way involved in unlawful acts at the hospital.
6
The search pursuant to the warrant was conducted later that day by four police officers and took place in the presence of some members of the Daily staff. The Daily's photographic laboratories, filing cabinets, desks, and wastepaper baskets were searched. Locked drawers and rooms were not opened. The officers apparently had opportunity to read notes and correspondence during the search; but, contrary to claims of the staff, the officers denied that they had exceeded the limits of the warrant.2 They had not been advised by the staff that the areas they were searching contained confidential materials. The search revealed only the photographs that had already been published on April 11, and no materials were removed from the Daily's office.
7
A month later the Daily and various members of its staff, respondents here, brought a civil action in the United States District Court for the Northern District of California seeking declaratory and injunctive relief under 42 U.S.C. § 1983 against the police officers who conducted the search, the chief of police, the district attorney and one of his deputies, and the judge who had issued the warrant. The complaint alleged that the search of the Daily's office had deprived respondents under color of state law of rights secured to them by the First, Fourth, and Fourteenth Amendments of the United States Constitution.
8
The District Court denied the request for an injunction but, on respondents' motion for summary judgment, granted declaratory relief. 353 F.Supp. 124 (1972). The court did not question the existence of probable cause to believe that a crime had been committed and to believe that relevant evidence would be found on the Daily's premises. It held, however, that the Fourth and Fourteenth Amendments forbade the issuance of a warrant to search for materials in possession of one not suspected of crime unless there is probable cause to believe, based on facts presented in a sworn affidavit, that a subpoena duces tecum would be impracticable. Moreover, the failure to honor a subpoena would not alone justify a warrant; it must also appear that the possessor of the objects sought would disregard a court order not to remove or destroy them. The District Court further held that where the innocent object of the search is a newspaper, First Amendment interests are also involved and that such a search is constitutionally permissible "only in the rare circumstance where there is a clear showing that (1 important materials will be destroyed or removed from the jurisdiction; and (2) a restraining order would be futile." Id., at 135. Since these preconditions to a valid warrant had not been satisfied here, the search of the Daily's offices was declared to have been illegal. The Court of Appeals affirmed per curiam, adopting the opinion of the District Court. 550 F.2d 464 (CA9 1977).3 We issued the writs of certiorari requested by petitioners. 434 U.S. 816, 98 S.Ct. 52, 54 L.Ed.2d 71 (1977).4 We reverse.
II
9
The issue here is how the Fourth Amendment is to be construed and applied to the "third party" search, the recurring situation where state authorities have probable cause to believe that fruits, instrumentalities, or other evidence of crime is located on identified property but do not then have probable cause to believe that the owner or possessor of the property is himself implicated in the crime that has occurred or is occurring. Because under the District Court's rule impracticability can be shown only by furnishing facts demonstrating that the third party will not only disobey the subpoena but also ignore a restraining order not to move or destroy the property, it is apparent that only in unusual situations could the State satisfy such a severe burden and that for all practical purposes the effect of the rule is that fruits, instrumentalities, and evidence of crime may be recovered from third parties only by subpoena, not by search warrant. At least, we assume that the District Court did not intend its rule to be toothless and anticipated that only subpoenas would be available in many cases where without the rule a search warrant would issue.
10
It is an understatement to say that there is no direct authority in this or any other federal court for the District Court's sweeping revision of the Fourth Amendment.5 Under existing law, valid warrants may be issued to search any property, whether or not occupied by a third party, at which there is probable cause to believe that fruits, instrumentalities, or evidence of a crime will be found. Nothing on the face of the Amendment suggests that a third-party search warrant should not normally issue. The Warrant Clause speaks of search warrants issued on "probable cause" and "particularly describing the place to be searched, and the persons or things to be seized." In situations where the State does not seek to seize "persons" but only those "things" which there is probable cause to believe are located on the place to be searched, there is no apparent basis in the language of the Amendment for also imposing the requirements for a valid arrest—probable cause to believe that the third party is implicated in the crime.
11
As the Fourth Amendment has been construed and applied by this Court, "when the State's reason to believe incriminating evidence will be found becomes sufficiently great, the invasion of privacy becomes justified and a warrant to search and seize will issue." Fisher v. United States, 425 U.S. 391, 400, 96 S.Ct. 1569, 1576, 48 L.Ed.2d 39 (1976). In Camara v. Municipal Court, 387 U.S. 523, 534-535, 87 S.Ct. 1727, 1734, 18 L.Ed.2d 930 (1967), we indicated that in applying the "probable cause" standard "by which a particular decision to search is tested against the constitutional mandate of reasonableness," it is necessary "to focus upon the governmental interest which allegedly justifies official intrusion" and that in criminal investigations a warrant to search for recoverable items is reasonable "only when there is 'probable cause' to believe that they will be uncovered in a particular dwelling." Search warrants are not directed at persons; they authorize the search of "place[s]" and the seizure of "things," and as a constitutional matter they need not even name the person from whom the things will be seized. United States v. Kahn, 415 U.S. 143, 155 n. 15, 94 S.Ct. 977, 984, 39 L.Ed.2d 225 (1974).
12
Because the State's interest in enforcing the criminal law and recovering evidence is the same whether the third party is culpable or not the premise of the District Court's holding appears to be that state entitlement to a search warrant depends on the culpability of the owner or possessor of the place to be searched and on the State's right to arrest him. The cases are to the contrary. Prior to Camara v. Municipal Court, supra, and See v. City of Seattle, 387 U.S. 541, 87 S.Ct. 1737, 18 L.Ed.2d 943 (1967), the central purpose of the Fourth Amendment was seen to be the protection of the individual against official searches for evidence to convict him of a crime. Entries upon property for civil purposes, where the occupant was suspected of no criminal conduct whatsoever, involved a more peripheral concern and the less intense "right to be secure from intrusion into personal privacy." Frank v. Maryland, 359 U.S. 360, 365, 79 S.Ct. 804, 808, 3 L.Ed.2d 877 (1959); Camara v. Municipal Court, supra, 387 U.S., at 530, 87 S.Ct., at 1731. Such searches could proceed without warrant, as long as the State's interest was sufficiently substantial. Under this view, the Fourth Amendment was more protective where the place to be searched was occupied by one suspected of crime and the search was for evidence to use against him. Camara and See, disagreeing with Frank to this extent, held that a warrant is required where entry is sought for civil purposes, as well as when criminal law enforcement is involved. Neither case, however, suggested that to secure a search warrant the owner or occupant of the place to be inspected or searched must be suspected of criminal involvement. Indeed, both cases held that a less stringent standard of probable cause is acceptable where the entry is not to secure evidence of crime against the possessor.
13
We have suggested nothing to the contrary since Camara and See. Indeed, Colonnade Catering Corp. v. United States, 397 U.S. 72, 90 S.Ct. 774, 25 L.Ed.2d 60 (1970), and United States v. Biswell, 406 U.S. 311, 92 S.Ct. 1593, 32 L.Ed.2d 87 (1972), dispensed with the warrant requirement in cases involving limited types of inspections and searches.
14
The critical element in a reasonable search is not that the owner of the property is suspected of crime but that there is reasonable cause to believe that the specific "things" to be searched for and seized are located on the property to which entry is sought.6 In Carroll v. United States, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543 (1925), it was cl imed that the seizure of liquor was unconstitutional because the occupant of a car stopped with probable cause to believe that it was carrying illegal liquor was not subject to arrest. The Court, however, said:
15
"If their theory were sound, their conclusion would be. The validity of the seizure then would turn wholly on the validity of the arrest without a seizure. But the theory is unsound. The right to search and the validity of the seizure are not dependent on the right to arrest. They are dependent on the reasonable cause the seizing officer has for belief that the contents of the automobile offend against the law." Id., at 158-159, 45 S.Ct., at 287.
16
The Court's ultimate conclusion was that "the officers here had justification for the search and seizure," that is, a reasonable "belief that intoxicating liquor was being transported in the automobile which they stopped and searched." Id., at 162, 45 S.Ct., at 288. See also Husty v. United States, 282 U.S. 694, 700-701, 51 S.Ct. 240, 241-242, 75 L.Ed. 629 (1931).
17
Federal Rule Crim. Proc. 41, which reflects "[t]he Fourth Amendment's policy against unreasonable searches and seizures," U ited States v. Ventresca, 380 U.S. 102, 105 n. 1, 85 S.Ct. 741, 744, 13 L.Ed.2d 684 (1965), authorizes warrants to search for contraband, fruits or instrumentalities of crime, or "any . . . property that constitutes evidence of the commission of a criminal offense . . . ." Upon proper showing, the warrant is to issue "identifying the property and naming or describing the person or place to be searched." Probable cause for the warrant must be presented but there is nothing in the Rule indicating that the officers must be entitled to arrest the owner of the "place" to be searched before a search warrant may issue and the "property" may be searched for and seized. The Rule deals with warrants to search, and is unrelated to arrests. Nor is there anything in the Fourth Amendment indicating that absent probable cause to arrest a third party, resort must be had to a subpoena.7
18
The Court of Appeals for the Sixth Circuit expressed the correct view of Rule 41 and of the Fourth Amendment when, contrary to the decisions of the Court of Appeals and the District Court in the present litigation, it ruled that "[o]nce it is established that probable cause exists to believe a federal crime has been committed a warrant may issue for the search of any property which the magistrate has probable cause to believe may be the place of concealment of evidence of the crime." United States v. Manufacturers Nat. Bank of Detroit, 536 F.2d 699, 703 (1976), cert. denied sub nom. Wingate v. United States, 429 U.S. 1039, 97 S.Ct. 735, 50 L.Ed.2d 749 (1977). Accord, State v. Tunnel Citgo Services, 149 N.J.Super. 427, 433, 374 A.2d 32, 35 (1977).
19
The net of the matter is that "[s]earches and seizures, in a technical sense, are independent of, rather than ancillary to, arrest and arraignment." ALI, A Model Code of Pre-Arraignment Procedure, Commentary 491 (Proposed Off. Draft 1975). The Model Code provides that the warrant application "shall describe with particularity the individuals or places to be searched and the individuals or things to be seized, and shall be supported by one or more affidavits particularly setting forth the facts and circumstances tending to show that such individuals or things are or will be in the places, or the things are or will be in possession of the individuals, to be searched." § §§ 220.1(3). There is no suggestion that the occupant of the place to be searched must himself be implicated in misconduct.
20
Against this background, it is untenable to conclude that property may not be searched unless its occupant is reasonably suspected of crime and is subject to arrest. And if those considered free of criminal involvement may nevertheless be searched or inspected under civil statutes, it is difficult to understand why the Fourth Amendment would prevent entry onto their property to recover evidence of a crime not committed by them but by others. As we understand the structure and language of the Fourth Amendment and our cases expounding it, valid warrants to search property may be issued when it is satisfactorily demonstrated to the magistrate that fruits, instrumentalities, or evidence of crime is located on the premises. The Fourth Amendment has itself struck the balance between privacy and public need, and there is no occasion or justification for a court to revise the Amendment and strike a new balance by denying the search warrant in the circumstances present here and by insisting that the investigation proceed by subpoena duces tecum, whether on the theory that the latter is a less intrusive alternative or otherwise.
21
This is not to question that "reasonableness" is the overr ding test of compliance with the Fourth Amendment or to assert that searches, however or whenever executed, may never be unreasonable if supported by a warrant issued on probable cause and properly identifying the place to be searched and the property to be seized. We do hold, however, that the courts may not, in the name of Fourth Amendment reasonableness, prohibit the States from issuing warrants to search for evidence simply because the owner or possessor of the place to be searched is not then reasonably suspected of criminal involvement.
III
22
In any event, the reasons presented by the District Court and adopted by the Court of Appeals for arriving at its remarkable conclusion do not withstand analysis. First, as we have said, it is apparent that whether the third-party occupant is suspect or not, the State's interest in enforcing the criminal law and recovering the evidence remains the same; and it is the seeming innocence of the property owner that the District Court relied on to foreclose the warrant to search. But, as respondents themselves now concede, if the third party knows that contraband or other illegal materials are on his property, he is sufficiently culpable to justify the issuance of a search warrant. Similarly, if his ethical stance is the determining factor, it seems to us that whether or not he knows that the sought-after articles are secreted on his property and whether or not he knows that the articles are in fact the fruits, instrumentalities, or evidence of crime, he will be so informed when the search warrant is served, and it is doubtful that he should then be permitted to object to the search, to withhold, if it is there, the evidence of crime reasonably believed to be possessed by him or secreted on his property, and to forbid the search and insist that the officers serve him with a subpoena duces tecum.
23
Second, we are unpersuaded that the District Court's new rule denying search warrants against third parties and insisting on subpoenas would substantially further privacy interests without seriously undermining law enforcement efforts. Because of the fundamental public interest in implementing the criminal law, the search warrant, a heretofore effective and constitutionally acceptable enforcement tool, should not be suppressed on the basis of surmise and without solid evidence supporting the change. As the District Court understands it, denying third-party search warrants would not have substantial adverse effects on criminal investigations because the nonsuspect third party, once served with a subpoena, will preserve the evidence and ultimately lawfully respond. The difficulty with this assumption is that search warrants are often employed early in an investigation, perhaps before the identity of any likely criminal and certainly before all the perpetrators are or could be known. The seemingly blameless third party in possession of the fruits or evidence may not be innocent at all; and if he is, he may nevertheless be so related to or so sympathetic with the culpable that he cannot be relied upon to retain and preserve the articles that may implicate his friends, or at least not to notify those who would be damaged by the evidence that the authorities are aware of its location. In any event, it is likely that the real culprits will have access to the property, and the delay involved in employing the subpoena duces tecum, offering as it does the opportunity to litigate its validity, could easily result in the disappearance of the evidence, whatever the good faith of the third party.
24
Forbidding the warrant and insisting on the subpoena instead when the custodian of the object of the search is not then suspected of crime, involves hazards to criminal investigation much more serious than the District Court believed; and the record is barren of anything but the District Court's assumptions to support its conclusions.8 At the very least, the burden of justifying a major revision of the Fourth Amen ment has not been carried.
25
We are also not convinced that the net gain to privacy interests by the District Court's new rule would be worth the candle.9 In the normal course of events, search warrants are more difficult to obtain than subpoenas, since the latter do not involve the judiciary and do not require proof of probable cause. Where, in the real world, subpoenas would suffice, it can be expected that they will be employed by the rational prosecutor. On the other hand, when choice is available under local law and the prosecutor chooses to use the search warrant, it is unlikely that he has needlessly selected the more difficult course. His choice is more likely to be based on the solid belief, arrived at through experience but difficult, if not impossible, to sustain a specific case, that the warranted search is necessary to secure and to avoid the destruction of evidence.10
IV
26
The District Court held, and respondents assert here, that whatever may be true of third-party searches generally, where the third party is a newspaper, there are additional factors derived from the First Amendment that justify a nearly per se rule forbidding the search warrant and permitting only the subpoena duces tecum. The general submission is that searches of newspaper offices for evidence of crime reasonably believed to be on the premises will seriously threaten the ability of the press to gather, analyze, and disseminate news. This is said to be true for several reasons: First, searches will be physically disruptive to such an extent that timely publication will be impeded. Second, confidential sources of information will dry up, and the press will also lose opportunities to cover various events because of fears of the participants that press files will be readily available to the authorities. Third, reporters will be deterred from recording and preserving their recollections for future use if such information is subject to seizure. Fourth, the processing of news and its dissemination will be chilled by the prospects that searches will disclose internal editorial deliberations. Fifth, the press will resort to self-censorship to conceal its possession of information of potential interest to the police.
27
It is true that the struggle from which the Fourth Amendment emerged "is largely a history of conflict between the Crown and the press," Stanford v. Texas, 379 U.S. 476, 482, 85 S.Ct. 506, 510, 13 L.Ed.2d 431 (1965), and that in issuing warrants and determining the reasonableness of a search, state and federal magistrates should be aware that "unrestricted power of search and seizure could also be an instrument for stifling liberty of expression." Marcus v. Search Warrant, 367 U.S. 717, 729, 81 S.Ct. 1708, 1715, 6 L.Ed.2d 1127 (1961). Where the materials sought to be seized may be protected by the First Amendment, the requirements of the Fourth Amendment must be applied with "scrupulous exactitude." Stanford v. Texas, supra, 379 U.S., at 485, 85 S.Ct., at 511. "A seizure reasonable as to one type of material in one setting may be unreasonable in a different setting or with respect to another kind of material." Roaden v. Kentucky, 413 U.S. 496, 501, 93 S.Ct. 2796, 2800, 37 L.Ed.2d 757 (1973). Hence, in Stanford v. Texas, the Court invalidated a warrant authorizing the search of a private home for all books, records, and other materials relating to the Communist Party, on the ground that whether or not the warrant would have been sufficient in other contexts, it authorized the searchers to rummage among and make judgments about books and papers and was the functional equivalent of a general warrant, one of the principal targets of the Fourth Amendment. Where presumptively protected materials are sought to be seized, the warrant requirement should be administered to leave as little as possible to the discretion or whim of the officer in the field.
28
Similarly, where seizure is sought of allegedly obscene materials, the judgment of the arresting officer alone is insufficient to justify issuance of a search warrant or a seizure without a warrant incident to arrest The procedure for determining probable cause must afford an opportunity for the judicial officer to "focus searchingly on the question of obscenity." Marcus v. Search Warrant, supra, 367 U.S., at 732, 81 S.Ct., at 1716; A Quantity of Books v. Kansas, 378 U.S. 205, 210, 84 S.Ct. 1723, 1725, 12 L.Ed.2d 809 (1964); Lee Art Theatre, Inc. v. Virginia, 392 U.S. 636, 637, 88 S.Ct. 2103, 2104, 20 L.Ed.2d 1313 (1968); Roaden v. Kentucky, supra, 413 U.S. at 502, 93 S.Ct. at 2800; Heller v. New York, 413 U.S. 483, 489, 93 S.Ct. 2789, 2793, 37 L.Ed.2d 745 (1973).
29
Neither the Fourth Amendment nor the cases requiring consideration of First Amendment values in issuing search warrants, however, call for imposing the regime ordered by the District Court. Aware of the long struggle between Crown and press and desiring to curb unjustified official intrusions, the Framers took the enormously important step of subjecting searches to the test of reasonableness and to the general rule requiring search warrants issued by neutral magistrates. They nevertheless did not forbid warrants where the press was involved, did not require special showings that subpoenas would be impractical, and did not insist that the owner of the place to be searched, if connected with the press, must be shown to be implicated in the offense being investigated. Further, the prior cases do no more than insist that the courts apply the warrant requirements with particular exactitude when First Amendment interests would be endangered by the search. As we see it, no more than this is required where the warrant requested is for the seizure of criminal evidence reasonably believed to be on the premises occupied by a newspaper. Properly administered, the preconditions for a warrant—probable cause, specificity with respect to the place to be searched and the things to be seized, and overall reasonableness—should afford sufficient protection against the harms that are assertedly threatened by warrants for searching newspaper offices.
30
There is no reason to believe, for example, that magistrates cannot guard against searches of the type, scope, and intrusiveness that would actually interfere with the timely publication of a newspaper. Nor, if the requirements of specificity and reasonableness are properly applied, policed, and observed, will there be any occasion or opportunity for officers to rummage at large in newspaper files or to intrude into or to deter normal editorial and publication decisions. The warrant issued in this case authorized nothing of this sort. Nor are we convinced, any more than we were in Branzburg v. Hayes, 408 U.S. 665, 92 S.Ct. 2646, 33 L.Ed.2d 626 (1972), that confidential sources will disappear and that the press will suppress news because of fears of warranted searches. Whatever incremental effect there may be in this regard if search warrants, as well as subpoenas, are permissible in proper circumstances, it does not make a constitutional difference in our judgment.
31
The fact is that respondents and amici have pointed to only a very few instances in the entire United States since 1971 involving the issuance of warrants for searching newspaper premises. This reality hardly suggests abuse; and if abuse occurs, there will be time enough to deal with it. Furthermore, the press is not only an important, critical, and valuable asset to society, but it is not easily intimidated—nor should it be.
32
Respondents also insist that the press should be afforded opportunity to litigate the State's entitlement to the material it seeks before it is turned over or seized and that whereas the search warrant procedure is defective in this respect, resort to the subpoena would solve the problem. The Court has held that a restraining order imposing a prior restraint upon free expression is invalid for want of notice and opportunity for a hearing, Carroll v. Princess Anne, 393 U.S. 175, 89 S.Ct. 347, 21 L.Ed.2d 325 (1968), and that seizures not merely for use as evidence but e tirely removing arguably protected materials from circulation may be effected only after an adversary hearing and a judicial finding of obscenity. A Quantity of Books v. Kansas, supra. But presumptively protected materials are not necessarily immune from seizure under warrant for use at a criminal trial. Not every such seizure, and not even most, will impose a prior restraint. Heller v. New York, supra. And surely a warrant to search newspaper premises for criminal evidence such as the one issued here for news photographs taken in a public place carries no realistic threat of prior restraint or of any direct restraint whatsoever on the publication of the Daily or on its communication of ideas. The hazards of such warrants can be avoided by a neutral magistrate carrying out his responsibilities under the Fourth Amendment, for he has ample tools at his disposal to confine warrants to search within reasonable limits.
33
We note finally that if the evidence sought by warrant is sufficiently connected with the crime to satisfy the probable-cause requirement, it will very likely be sufficiently relevant to justify a subpoena and to withstand a motion to quash. Further, Fifth Amendment and state shield-law objections that might be asserted in opposition to compliance with a subpoena are largely irrelevant to determining the legality of a search warrant under the Fourth Amendment. Of course, the Fourth Amendment does not prevent or advise against legislative or executive efforts to establish nonconstitutional protections against possible abuses of the search warrant procedure, but we decline to reinterpret the Amendment to impose a general constitutional barrier against warrants to search newspaper premises, to require resort to subpoenas as a general rule, or to demand prior notice and hearing in connection with the issuance of search warrants.
V
34
We accordingly reject the reasons given by the District Court and adopted by the Court of Appeals for holding the search for photographs at the Stanford Daily to have been unreasonable within the meaning of the Fourth Amendment and in violation of the First Amendment. Nor has anything else presented here persuaded us that the Amendments forbade this search. It follows that the judgment of the Court of Appeals is reversed.
35
So ordered.
36
Mr. Justice BRENNAN took no part in the consideration or decision of these cases.
37
Mr. Justice POWELL, concurring.
38
I join the opinion of the Court, and I write simply to emphasize what I take to be the fundamental error of Mr. Justice STEWART's dissenting opinion. As I understand that opinion, it would read into the Fourth Amendment, as a new and per se exception, the rule that any search of an entity protected by the Press Clause of the First Amendment is unreasonable so long as a subpoena could be used as a substitute procedure. Even aside from the difficulties involved in deciding on a case-by-case basis whether a subpoena can serve as an adequate substitute,1 I agree with the Court that there is no constitutional basis for such a reading.
39
If the Framers had believed that the press was entitled to a special procedure, not available to others, when government authorities required evidence in its possession, one would have expected the terms of the Fourth Amendment to reflect that belief. As the opinion of the Court points out, the struggle from which the Fourth Amendment emerged was that between Crown and press. Ante, at 564. The Framers were painfully aware of that history, and their response to it was the Fourth Amendment. Ante, at 565. Hence, there is every reason to believe that the usual procedures contemplated by the Fourth Amendment do indeed apply to the press, as to every other person.
40
This is not to say that a warrant which would be sufficient to support the search of an apartment or an automobile necessarily would be reasonable in supporting the search of a newspaper office. As the Court's opinion makes clear, ante, at 1981, 1982, the magistrate must judge the reasonableness of every warrant in light of the circumstances of the particular case, carefully considering the description of the evidence sought, the situation of the premises, and the position and interests of the owner or occupant. While there is no justification for the establishment of a separate Fourth Amendment procedure for the press, a magistrate asked to issue a warrant for the search of press offices can and should take cognizance of the independent values protected by the First Amendment—such as those highlighted by Mr. Justice STEWART—when he weighs such factors. If the reasonableness and particularity requirements are thus applied, the dangers are likely to be minimal.2 Ibid.
41
In any event considerations such as these are the province of the Fourth Amendment. There is no authority either in history or in the Constitution itself for exempting certain classes of persons or entities from its reach.3
42
Mr. Justice STEWART, with whom Mr. Justice MARSHALL joins, dissenting.
43
Believing that the search by the police of the offices of the Stanford Daily infringed the First and Fourteenth Amendments' guarantee of a free press, I respectfully dissent.1
44
* It seems to me self-evident that police searches of newspaper offices burden the freedom of the press. The most immediate and obvious First Amendment injury caused by such a visitation by the police is physical disruption of the operation of the newspaper. Policemen occupying a newsroom and searching it thoroughly for what may be an extended period of time2 will inevitably interrupt its normal operations, and thus impair or even temporarily prevent the processes of newsgathering, writing, editing, and publishing. By contrast, a subpoena would afford the newspaper itself an opportunity to locate whatever material might be requested and produce it.
45
But there is another and more serious burden on a free press imposed by an unannounced police search of a newspaper office: the possibility of disclosure of information received from confidential sources, or of the identity of the sources themselves. Protection of those sources is necessary to ensure that the press can fulfill its constitutionally designated function of informing the public,3 because important information can often be obtained only by an assurance that the source will not be revealed. Branzburg v. Hayes, 408 U.S. 665, 725-736, 92 S.Ct. 2646, 2671-2677, 33 L.Ed.2d 626 (dissenting opinion).4 And the Court has recognized that " 'without some protection for seeking out the news, freedom of the press could be eviscerated.' " Pell v. Procunier, 417 U.S. 817, 833, 94 S.Ct. 2800, 2809, 41 L.Ed.2d 495.
46
Today the Court does not question the existence of this constitutional protection, but says only that it is not "convinced . . . that confidential sources will disappear and that the press will suppress news becau e of fears of warranted searches." Ante, at 566. This facile conclusion seems to me to ignore common experience. It requires no blind leap of faith to understand that a person who gives information to a journalist only on condition that his identity will not be revealed will be less likely to give that information if he knows that, despite the journalist's assurance his identity may in fact be disclosed. And it cannot be denied that confidential information may be exposed to the eyes of police officers who execute a search warrant by rummaging through the files, cabinets, desks, and wastebaskets of a newsroom.5 Since the indisputable effect of such searches will thus be to prevent a newsman from being able to promise confidentiality to his potential sources, it seems obvious to me that a journalist's access to information, and thus the public's will thereby be impaired.6
47
A search warrant allows police officers to ransack the files of a newspaper, reading each and every document until they have found the one named in the warrant,7 while a subpoena would permit the newspaper itself to produce only the specific documents requested. A search, unlike a subpoena, will therefore lead to the needless exposure of confidential information completely unrelated to the purpose of the investigation. The knowledge that police officers can make an unannounced raid on a newsroom is thus bound to have a deterrent effect on the availability of confidential news sources. The end result, wholly inimical to the First Amendment, will be a diminishing flow of potentially important information to the public.
48
One need not rely on mere intuition to reach this conclusion. The record in this case includes affidavits not only from members of the staff of the Stanford Daily but also from many professional journalists and editors, attesting to precisely such personal experience.8 Despite the Court's rejection of this uncontroverted evidence, I believe it clearly establishes that unannounced police searches of newspaper offices will significantly burden the constitutionally protected function of the press to gather news and report it to the public.
II
49
In Branzburg v. Hayes, supra, the more limited disclosure of a journalist's sources caused by compelling him to testify was held to be justified by the necessity of "pursuing and prosecuting those crimes reported to the press by informants and . . . thus deterring the commission of such crimes in the future." 408 U.S., at 695, 92 S.Ct., at 2664. The Court found that these important societal interests would be frustrated if a reporter were able to claim an absolute privilege for his confidential sources. In the present case, however, the respondents do not claim that any of the evidence sought was privileged from disclosure; they claim only that a subpoena would have served equally well to produce that evidence. Thus, we are not concerned with the principle, central to Branzburg, that " 'the public . . . has a right to every man's evidence,' " id., at 688, 92 S.Ct., at 2660, but only with whether any significant societal interest would be impaired if the police were generally required to obtain evidence from the press by means of a subpoena rather than a search.
50
It is well to recall the actual circumstances of this litigation. The application for a warrant showed only that there was reason to believe that photographic evidence of assaults on the police would be found in the offices of the Stanford Daily. There was no emergency need to protect life or property by an immediate search. The evidence sought was not contraband, but material obtained by the Daily in the normal exercise of its journalistic function. Neither the Daily nor any member of its staff was suspected of criminal activity. And there was no showing that the Daily would not respond to a subpoena commanding production of the photographs, or that for any other reason a subpoena could not be obtained. Surely, then, a subpoena duces tecum would have been just as effective as a police raid in obtaining the production of the material sought by the Santa Clara County District Attorney.
51
The District Court and the Court of Appeals clearly recognized that if the affidavits submitted with a search warrant application should demonstrate probable cause to believe that a subpoena would be impractical, the magistrate must have the authority to issue a warrant. In such a case, by definition, a subpoena would not be adequate to protect the relevant societal interest. But they held, and I agree, that a warrant should issue only after the magistrate has performed the careful "balanc[ing] of these vital constitutional and societal interests." Branzburg v. Hayes, supra, at 710, 92 S.Ct., at 2671 (POWELL, J., concurring).9
52
The decisions of this Court establish that a prior adversary judicial hearing is generally required to assess in advance any threatened invasion of First Amendment liberty.10 A search by police officers affords no timely opportunity for such a hearing, since a search warrant is ordinarily issued ex parte upon the affidavit of a policeman or prosecutor. There is no opportunity to challenge the necessity for the search until after it has occurred and the constitutional protection of the newspaper has been irretrievably invaded.
53
On the other hand, a subpoena would allow a newspaper, through a motion to quash, an opportunity for an adversary hearing with respect to the production of any material which a prosecutor might think is in its possession. This very principle was emphasized in the Branzburg case:
54
"[I]f the newsman is called upon to give information bearing only a remote and tenuous relationship to the subject of the investigation, or if he has some other reason to believe that his testimony implicates confidential source relationships without a legitimate need of law enforcement, he will have access to the court on a motion to quash and an appropriate protective order may be entered." 408 U.S., at 710, 92 S.Ct., at 2671 (POWELL, J., concurring). See also id., at 707-708, 92 S.Ct., at 2669-2670 (opinion of Court).
55
If, in the present litigation, the Stanford Daily had been served with a subpoena, it would have had an opportunity to demonstrate to the court what the police ultimately found to be true—that the evidence sought did not exist. The legitimate needs of government thus would have been served without infringing the freedom of the press.
III
56
Perhaps as a matter of abstract policy a newspaper office should receive no more protection from unannounced police searches than, say, the office of a doctor or the office of a bank. But we are here to uphold a Constitution. And our Constitution does not explicitly protect the practice of medicine or the business of banking from all abridgment by government. It does explicitly protect the freedom of the press.
57
For these reasons I would affirm the judgment of the Court of Appeals.
58
Mr. Justice STEVENS, dissenting.
59
The novel problem presented by this case is an outgrowth of the profound change in Fourth Amendment law that occurred in 1967, when Warden v. Hayden, 387 U.S. 294, 87 S.Ct. 1642, 18 L.Ed.2d 782, was decided. The question is what kind of "probable cause" must be established in order to obtain a warrant to conduct an unannounced search for documentary evidence in the private files of a person not suspected of involvement in any criminal activity. The Court holds that a reasonable belief that the files contain relevant evidence is a sufficient justification. This holding rests on a misconstruction of history and of the Fourth Amendment's purposely broad language.
60
The Amendment contains two Clauses, one protecting "persons, houses, papers, and effects, against unreasonable searches and seizures," the other regulating the issuance of warrants: "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." When these words were written, the procedures of the Warrant Clause were not the primary protection against oppressive searches. It is unlikely that the authors expected private papers ever to be among the "things" that could be seized with a warrant, for only a few years earlier, in 1765, Lord Camden had delivered his famous opinion denying that any magistrate had power to authorize the seizure of private papers.1 Because all such seizures were considered unreasonable, the Warrant Clause was not framed to protect against them.
61
Nonetheless, the authors of the Clause used words that were adequate for situations not expressly contemplated at the time. As Mr. Justice Black noted, the Amendment does not "attempt to describe with precision what was meant by its words 'probable cause' "; the words of the Amendment are deliberately "imprecise and flexible."2 And Mr. Justice STEWART, when confronted with the problem of applying the probable-cause standard in an unprecedented situation, observed that "[t]he standard of reasonableness embodied in the Fourth Amendment demands that the showing of justification match the degree of intrusion."3 Today, for the first time, the Court has an opportunity to consider the kind of showing that is necessary to justify the vastly expanded "degree of intrusion" upon privacy that is authorized by the opinion in Warden v. Hayden, supra.
62
In the pre-Hayden era warrants were used to search for contraband,4 weapons, and plunder, but not for "mere evidence."5 The practical effect of the rule prohibiting the issuance of warrants to search for mere evidence was to narrowly limit not only the category of objects, but also the category of persons and the character of the privacy interests that might be affected by an unannounced police search.
63
Just as the witnesses who participate in an investigation or a trial far outnumber the defendants, the persons who possess evidence that may help to identify an offender, or explain an aspect of a criminal transaction, far outnumber those who have custody of weapons or plunder. ountless law-abiding citizens doctors, lawyers, merchants, customers, bystanders—may have documents in their possession that relate to an ongoing criminal investigation. The consequences of subjecting this large category of persons to unannounced police searches are extremely serious. The ex parte warrant procedure enables the prosecutor to obtain access to privileged documents that could not be examined if advance notice gave the custodian an opportunity to object.6 The search for the documents described in a warrant may involve the inspection of files containing other private matter.7 The dramatic character of a sudden search may cause an entirely unjustified injury to the reputation of the persons searched.8
64
Of greatest importance, however, is the question whether the offensive intrusion on the privacy of the ordinary citizen is justified by the law enforcement interest it is intended to vindicate. Possession of contraband or the proceeds or tools of crime gives rise to two inferences: that the custodian is involved in the criminal activity, and that, if given notice of an intended search, he will conceal or destroy what is being sought. The probability of criminal culpability justifies the invasion of his privacy; the need to accomplish the law enforcement purpose of the search justifies acting without advance notice and by force, if necessary. By satisfying the probable-cause standard appropriate for weapons or plunder, the police effectively demonstrate that no less intrusive method of investigation will succeed.
65
Mere possession of documentary evidence, however, is much less likely to demonstrate that the custodian is guilty of any wrongdoing or that he will not honor a subpoena or informal request to produce it. In the pre-Hayden era, evidence of that kind was routinely obtained by procedures that presumed that the custodian would respect his obligation to obey subpoenas and to cooperate in the investigation of crime. These procedures had a constitutional dimension. For the innocent citizen's interest in the privacy of his papers and possessions is an aspect of liberty protected by the Due Process Clause of the Fourteenth Amendment. Notice and an opportunity to object to the deprivation of the citizen's liberty are, therefore, the constitutionally mandated general rule.9 An exception to that rule can only be justified by strict compliance with the Fourth Amendment. That Amendment flatly prohibits the issuance of any warrant unless justified by probable cause.
66
A showing of probable cause that was adequate to justify the issuance of a warrant to search for stolen goods in the 18th century does not automatically satisfy the new dimensions of the Fourth Amendment in the post-Hayden era.10 In Hayden itself, the Court recognized that the meaning of probable cause should be reconsidered in the light of the new authority it conferred on the police.11 The only conceivable justification for an unannounced search of an innocent citizen is the fear that, if notice were given, he would conceal or destroy the object of the search. Probable cause to believe that the custodian is a criminal, or that he holds a criminal's weapons, spoils, or the like, justifies that fear,12 and therefore such a showing complies with the Clause. But if nothing said under oath in the warrant application demonstrates the need for an unannounced search by force, the probable-cause requirement is not satisfied. In the absence of some other showing of reasonableness,13 the ensuing search violates the Fourth Amendment.
67
In this case, the warrant application set forth no facts suggesting that respondents were involved in any wrongdoing or would destroy the desired evidence if given notice of what the police desired. I would therefore hold that the warrant did not comply with the Warrant Clause and that the search was unreasonable within the meaning of the first Clause of the Fourth Amendment.
68
I respectfully dissent.
1
There was extensive damage to the administrative offices resulting from the occupation and the removal of the demonstrators.
2
The District Court did not find it necessary to resolve this dispute.
3
The Court of Appeals also approved the award of attorney's fees to respondents pursuant to the Civil Rights Attorney's Fees Awards Act of 1976, 42 U.S.C. § 1988 (1976 ed.). We do not consider the propriety of this award in light of our disposition on the merits reversing the judgment upon which the award was predicated.
4
Petitioners in No. 76-1484 are the chief of police and the officers under his command who conducted the search. Petitioners in No. 76-1600 are the district attorney and a deputy district attorney who participated in the obtaining of the search warrant. The action against the judge who issued the warrant was subsequently dismissed upon the motion of respondents.
5
Respondents rely on four state cases to support the holding that a warrant may not issue unless it is shown that a subpoena is impracticable: Owens v. Way, 141 Ga. 796, 82 S.E. 132 (1914); Newberry v. Carpenter, 107 Mich. 567, 65 N.W. 530 (1895); People v. Carver, 172 Misc. 820, 16 N.Y.S.2d 268 (County Ct.1939); and Commodity Mfg. Co. v. Moore, 198 N.Y.S. 45 (Sup.Ct.1923). None of these cases, however, stands for the proposition arrived at by the District Court and urged by respondents. The District Court also drew upon Bacon v. United tates, 449 F.2d 933 (CA9 1971), but that case dealt with arrest of a material witness and is unpersuasive with respect to the search for criminal evidence.
6
The same view has been expressed by those who have given close attention to the Fourth Amendment. "It does not follow, however, that probable cause for arrest would justify the issuance of a search warrant, or, on the other hand, that probable cause for a search warrant would necessarily justify an arrest. Each requires probabilities as to somewhat different facts and circumstances—a point which is seldom made explicit in the appellate cases. . . .
"This means, for one thing, that while probable cause for arrest requires information justifying a reasonable belief that a crime has been committed and that a particular person committed it, a search warrant may be issued on a complaint which does not identify any particular person as the likely offender. Because the complaint for a search warrant is not 'filed as the basis of a criminal prosecution,' it need not identify the person in charge of the premises or name the person in possession or any other person as the offender." LaFave, Search and Seizure: "The Course of True Law . . . Has Not . . . Run Smooth," U.Ill.Law Forum (1966) (footnotes omitted). 255, 260-261.
"Furthermore, a warrant may issue to search the premises of anyone, without any showing that the occupant is guilty of any offense whatever." T. Taylor, Two Studies in Constitutional Interpretation 48-49 (1969). "Search warrants may be issued only by a neutral and detached judicial officer, upon a showing of probable cause—that is, reasonable grounds to believe—that criminally related objects are in the place which the warrant authorizes to be searched, at the time when the search is authorized to be conducted." Amsterdam, Perspectives on the Fourth Amendment, 58 Minn.L.Rev. 349, 358 (1974) (footnotes omitted).
"Two conclusions necessary to the issuance of the warrant must be supported by substantial evidence: that the items sought are in fact seizable by virtue of being connected with criminal activity, and that the items will be found in the place to be searched. By comparison, the right of arrest arises only when a crime is committed or attempted in the presence of the arresting officer or when the officer has 'reasonable grounds to
believe'—sometimes stated 'probable cause to believe'—that a felony has been committed by the person to be arrested. Although it would appear that the conclusions which justify either arrest or the issuance of a search warrant must be supported by evidence of the same degree of probity, it is clear that the conclusions themselves are not identical.
"In the case of arrest, the conclusion concerns the guilt of the arrestee, whereas in the case of search warrants, the conclusions go to the connection of the items sought with crime and to their present location." Comment, 28 U.Chi.L.Rev. 664, 687 (1961) (footnotes omitted).
7
Petitioners assert that third-party searches have long been authorized under Cal. Penal Code Ann. § 1524 (West 1970), which provides that fruits, instrumentalities, and evidence of crime "may be taken on the warrant from any place, or from any person in whose possession [they] may be." The District Court did not advert to this provision.
8
It is also far from clear, even apart from the dangers of destruction and removal, whether the use of the subpoena duces tecum under circumstances where there is probable cause to believe that a crime has been committed and that the materials sought constitute evidence of its commission will result in the production of evidence with sufficient regularity to satisfy the public interest in law enforcement. Unlike the individual whose privacy is invaded by a search, the recipient of a subpoena may assert the Fifth Amendment privilege against self-incrimination in response to a summons to produce evidence or give testimony. See Maness v. Meyers, 419 U.S. 449, 95 S.Ct. 584, 42 L.Ed.2d 574 (1975). This privilege is not restricted to suspects. We have construed it broadly as covering any individual who might be incriminated by the evidence in connection with which the privilege is asserted. Hoffman v. United States, 341 U.S. 479, 71 S.Ct. 814, 95 L.Ed. 1118 (1951). The burden of overcoming an assertion of the Fifth Amendment privilege, even if prompted by a desire not to cooperate rather than any real fear of self-incrimination, is one which prosecutors would rarely be able to meet in the early stages of an investigation despite the fact they did not regard the witness as a suspect. Even time spent litigating such matters could seriously impede criminal investigations.
9
We reject totally the reasoning of the District Court that additional protections are required to assure that the Fourth Amendment rights of third parties are not violated because of the unavailability of the exclusionary rule as a deterrent to improper searches of premises in the control of nonsuspects. 353 F.Supp. 124, 131-132 (1972). In Alderman v. United States, 394 U.S. 165, 89 S.Ct. 961, 22 L.Ed.2d 176 (1969), we expressly ruled that suppression of the fruits of a Fourth Amendment violation may be urged only by those whose rights were infringed by the search itself and not by those aggrieved solely by the introduction of incriminating evidence. The predicate for this holding was that the additional deterrent effect of permitting defendants whose Fourth Amendment rights had not been violated to challenge infringements of the privacy interests of others did not "justify further encroachment upon the public interest in prosecuting those accused of crime and having them acquitted or convicted on the basis of all the evidence which exposes the truth." Id., at 175, 89 S.Ct., at 967. For similar reasons, we conclude that the interest in deterring illegal third-party searches does not justify a rule such as that adopted by the District Court. It is probably seldom that police during the investigatory stage when most searches occur will be so convinced that no potential defendant will have standing to exclude evidence on Fourth Amendment grounds that they will feel free to ignore constitutional restraints. In any event, it would be placing the cart before the horse to prohibit searches otherwise conforming to the Fourth Amendment because of a perception that the deterrence provided by the existing rules of standin is insufficient to discourage illegal searches. Cf. Warden v. Hayden, 387 U.S. 294, 309, 87 S.Ct. 1642, 1651, 18 L.Ed.2d 782 (1967). Finally, the District Court overlooked the fact that the California Supreme Court has ruled as a matter of state law that the legality of a search and seizure may be challenged by anyone against whom evidence thus obtained is used. Kaplan v. Superior Court, 6 Cal.3d 150, 98 Cal.Rptr. 649, 491 P.2d 1 (1971).
10
Petitioners assert that the District Court ignored the realities of California law and practice that are said to preclude or make very difficult the use of subpoenas as investigatory techniques. If true, the choice of procedures may not always be open to the diligent prosecutor in the State of California.
1
For example, respondents had announced a policy of destroying any photographs that might aid prosecution of protesters. App. 118, 152-153. While this policy probably reflected the deep feelings of the Vietnam era, and one may assume that under normal circumstances few, if any, press entities would adopt a policy so hostile to law enforcement, respondents' policy at least illustrates the possibility of such hostility. Use of a subpoena, as proposed by the dissent, would be of no utility in face of a policy of destroying evidence. And unless the policy were publicly announced, it probably would be difficult to show the impracticality of a subpoena as opposed to a search warrant.
At oral argument, counsel for respondents stated that the announced policy of the Stanford Daily conceivably could have extended to the destruction of evidence of any crime:
"QUESTION: Let us assume you had a picture of the commiss on of a crime. For example, in banks they take pictures regularly of, not only of robbery but of murder committed in a bank and there have been pictures taken of the actual pulling of the trigger or the pointing of the gun and pulling of the trigger. There is a very famous one related to the assassination of President Kennedy.
"What would the policy of the Stanford Daily be with respect to that? Would it feel free to destroy it at any time before a subpoena had been served?
"MR. FALK: The—literally read, the policy of the Daily requires me to give an affirmative answer. I find it hard to believe that in an example such as that, that the policy would have been carried out. It was not addressed to a picture of that kind or in that context.
"QUESTION: Well, I am sure you were right. I was just getting to the scope of your theory.
"MR. FALK: Our—
"QUESTION: What is the difference between the pictures Justice Powell just described and the pictures they were thought to have?
"MR. FALK: Well, it simply is a distinction that—
"QUESTION: Attacking police officers instead of the President. That is the only difference." Tr. of Oral Arg. 39-40.
While the existence of this policy was not before the magistrate at the time of the warrant's issuance, 353 F.Supp. 124, 135 n. 16 (ND Cal. 1972), it illustrates the possible dangers of creating separate standards for the press alone.
2
Similarly, the magnitude of a proposed search directed at any third party and the nature and significance of the material sought, are factors properly considered as bearing on the reasonableness and particularity requirements. Moreover, there is no reason why police officers executing a warrant should not seek the cooperation of the subject party, in order to prevent needless disruption.
3
The concurring opinion in Branzburg v. Hayes, 408 U.S. 665, 709-710, 92 S.Ct. 2646, 2671, 33 L.Ed.2d 626 (1972) (POWELL, J.), does not support the view that the Fourth Amendment contains an implied exception for the press, through the operation of the First Amendment. That op nion noted only that in considering a motion to quash a subpoena directed to a newsman, the court should balance the competing values of a free press and the societal interest in detecting and prosecuting crime. The concurrence expressed no doubt as to the applicability of the subpoena procedure to members of the press. Rather than advocating the creation of a special procedural exception for the press, it approved recognition of First Amendment concerns within the applicable procedure. The concurring opinion may, however, properly be read as supporting the view expressed in the text above, and in the Court's opinion, that under the warrant requirement of the Fourth Amendment, the magistrate should consider the values of a free press as well as the societal interest in enforcing the criminal laws.
1
I agree with the Court that the Fourth Amendment does not forbid the issuance of search warrants "simply because the owner or possessor of the place to be searched is not then reasonably suspected of criminal involvement." Ante, at 560. Thus, contrary to the understanding expressed in the concurring opinion, I do not "read" anything "into the Fourth Amendment." Ante, at 568. Instead, I would simply enforce the provisions of the First Amendment.
2
One search of a radio station in Los Angeles lasted over eight hours. Note, Search and Seizure of the Media: A Statutory, Fourth Amendment and First Amendment Analysis, 28 Stan.L.Rev. 957, 957-959 (1976).
3
See Mills v. Alabama, 384 U.S. 214, 219, 86 S.Ct. 1434, 1437, 16 L.Ed.2d 484; New York Times Co. v. Sullivan, 376 U.S. 254, 269, 84 S.Ct. 710, 720, 11 L.Ed.2d 686; Grosjean v. American Press Co., 297 U.S. 233, 250, 56 S.Ct. 444, 449, 80 L.Ed. 660.
4
Recognizing the importance of this confidential relationship, at least 26 States have enacted so-called "shield laws" protecting reporters. Note, The Newsman's Privilege After Branzburg : The Case for a Federal Shield Law, 24 UCLA L.Rev. 160, 167 n. 41 (1976).
5
In this case, the policemen executing the search warrant were concededly in a position to read confidential material unrelated to the object of their search; whether they in fact did so is disputed.
6
This prospect of losing access to confidential sources may cause reporters to engage in "self-censorship," in order to avoid publicizing the fact that they may have confidential information. See New York Times Co. v. Sullivan, supra, 376 U.S., at 279, 84 S.Ct., at 725; Smith v. California, 361 U.S. 147, 154, 80 S.Ct. 215, 219, 4 L.Ed.2d 205. Or journalists may destroy notes and photographs rather than save them for reference and use in future stories. Either of these indirect effects of police searches would further lessen the flow of news to the public.
7
The Court says that "if the requirements of specificity and reasonableness are properly applied, policed, and observed" there will be no opportunity for the police to "rummage at large in newspaper files." Ante, at 566. But in order to find a particular document, no matter how specifically it is identified in the warrant, the police will have to search every place where it might be—including, presumably, every file in the office—and to examine each document they find to see if it is the correct one. I thus fail to see how the Fourth Amendment would provide an effective limit to these searches.
8
According to these uncontradicted affidavits, when it becomes known that a newsman cannot guarantee confidentiality, potential sources of information often become unavailable. Moreover, efforts are sometimes made, occasionally by force, to prevent reporters and photographers from covering newsworthy events, because of fear that the police will seize the newsman's notes or photographs as evidence. The affidavits of the members of the staff of the Stanford Daily give examples of how this very search produced such an impact on the Daily's own journalistic functions.
9
The petitioners have argued here that in fact there was reason to believe that the Daily would not honor a subpoena. Regardless of the probative value of this information, it is irrelevant, since it was not before the magistrate when he issued the warrant. Whiteley v. Warden, 401 U.S. 560, 565 n. 8, 91 S.Ct. 1031, 1035, 28 L.Ed.2d 306; Spinelli v. United States, 393 U.S. 410, 413 n. 3, 89 S.Ct. 584, 587, 21 L.Ed.2d 637; Aguilar v. Texas, 378 U.S. 108, 109 n. 1, 84 S.Ct. 1509, 1511, 12 L.Ed.2d 723; see Johnson v. United States, 333 U.S. 10, 13-14, 68 S.Ct. 367, 368-369, 92 L.Ed. 436.
10
E. g., United States v. Thirty-seven Photographs, 402 U.S. 363, 91 S.Ct 1400, 28 L.Ed.2d 822; Carroll v. Princess Anne, 393 U.S. 175, 89 S.Ct. 347, 21 L.Ed.2d 325; Freedman v. Maryland, 380 U.S. 51, 85 S.Ct. 734, 13 L.Ed.2d 649. Cf. Roaden v. Kentucky, 413 U.S. 496, 93 S.Ct. 2796, 37 L.Ed.2d 757; A Quantity of Books v. Kansas, 378 U.S. 205, 84 S.Ct. 1723, 12 L.Ed.2d 809; Marcus v. Search Warrant, 367 U.S. 717, 81 S.Ct. 1708, 6 L.Ed.2d 1127.
1
"Papers are the owner's goods and chattels: they are his dearest property; and are so far from enduring a seizure, that they will hardly bear an inspection; and though the eye cannot by the laws of England be guilty of a trespass, yet where private papers are removed and carried away, the secret nature of those goods will be an aggra ation of the trespass, and demand more considerable damages in that respect. Where is the written law that gives any magistrate such a power? I can safely answer, there is none; and therefore it is too much for us without such authority to pronounce a practice legal, which would be subversive of all the comforts of society." Entick v. Carrington, 19 How.St.Tr. 1029, 1066 (1765).
2
"Obviously, those who wrote this Fourth Amendment knew from experience that searches and seizures were too valuable to law enforcement to prohibit them entirely, but also knew at the same time that while searches or seizures must not be stopped, they should be slowed down, and warrants should be issued only after studied caution. This accounts for use of the imprecise and flexible term, 'unreasonable,' the key word permeating this whole Amendment. Also it is noticeable that this Amendment contains no appropriate language, as does the Fifth, to forbid the use and introduction of search and seizure evidence even though secured 'unreasonably.' Nor does this Fourth Amendment attempt to describe with precision what was meant by its words, 'probable cause'; nor by whom the 'Oath or affirmation' should be taken; nor what it need contain." Berger v. New York, 388 U.S. 41, 75, 87 S.Ct. 1873, 1891, 18 L.Ed.2d 1040 (Black, J., dissenting).
3
Id., at 69, 87 S.Ct., at 1888 (STEWART, J., concurring in result).
4
It was stated in 1967 that about 95% of the search warrants obtained by the office of the District Attorney for New York County were for the purpose of seizing narcotics and arresting the possessors. See T. Taylor, Two Studies in Constitutional Interpretation 48, and n. 85 (1969).
5
Until 1967, when Warden v. Hayden was decided, our cases interpreting the Fourth Amendment had drawn a " 'distinction between merely evidentiary materials, on the one hand, which may not be seized either under the authority of a search warrant or during the course or a search incident to arrest, and on the other hand, those objects which may validly be seized including the instrumentalities and means by which a crime is committed, the fruits of crime such as stolen property, weapons by which escape of the person arrested might be effected, and property the possession of which is a crime.' " See Warden v. Hayden, 387 U.S., at 295-296, 87 S.Ct., at 1644, quoting from Harris v. United States, 331 U.S. 145, 154, 67 S.Ct. 1098, 1103, 91 L.Ed. 1399.
6
The suggestion that, instead of setting standards, we should rely on the good judgment of the magistrate to prevent abuse represents an abdication of the responsibilities this Court previously accepted in carefully supervising the performance of the magistrate's warrant-issuing function. See Aguilar v. Texas, 378 U.S. 108, 111.
7
"There are three considerations which support the conclusion that private papers are central to the concerns of the fourth amendment and which suggest that, in accord with the amendment's privacy rationale, private papers should occupy a type of preferred position. The first consideration is the very personal, private nature of such papers. This rationale has been cogently articulated on a number of occasions. Private papers have been said to be 'little more than an extension of [the owner's] person,' their seizure 'a particularly abrasive infringement of privacy,' and their protection 'impelled by the moral and symbolic need to recognize and defend the private aspect of personality.' In this sense, every governmental procurement of private papers regardless of how it is accomplished, is uniquely intrusive. In addition to the nature of the papers themselves, a second reason for according them strict protection concerns the nature of the search for private papers. The fundamental evil at which the fourth amendment was directed was the sweeping, exploratory search conducted pursuant to a general warrant. A search involving private papers, it has been noted, invariably partakes of a similar generality, for 'even a search for a specific, identified paper may involve the same rude intrusion [of an exploratory search] if the quest for it leads to an examination of all of a man's private papers.' Thus, both their contents and the inherently intrusive nature of a search for them militates toward the position that private papers are deserving of the fullest possible fourth amendment protection. Finally, not only is a search involving private papers highly intrusive in fourth amendment terms, but the nature of the papers themselves may implicate the policies of other constitutional protections. In addition to the 'intimate' relation with fifth amendment values, the obtaining of private papers by the government touches upon the first amendment and the generalized right of privacy." McKenna, The Constitutional Protection of Private Papers: The Role of a Hierarchical Fourth Amendment, 53 Ind.L.J. 55, 68-69 (1977-1978) (footnotes omitted).
8
Whether the search be for rubbish or narcotics, both innocent and guilty will suffer the loss of the proprietary right of privacy. The search for evidence of crime, however, threatens the innocent with an injury not recognized in the cases. That is the damage to reputation resulting from an overt manifestation of official suspicion of crime. Connected with loss of reputation, standing, or credit may be humiliation and other mental suffering. The interests here at stake are the same which are recognized in the common law actions for defamation and malicious prosecution. Indeed, the loss of reputation and the humiliation resulting from the search of one's home for evidence of a heinous crime may greatly exceed the injury caused by an ill-grounded prosecution for a minor offense." C mment, Search and Seizure in the Supreme Court: Shadows on the Fourth Amendment, 28 U.Chi.L.Rev. 664, 701 (footnotes omitted).
9
Only with great reluctance has this Court approved the seizure even of refrigerators or washing machines without notice and a prior adversary hearing; in doing so, the Court has relied on the distinction between loss of property, which can often be easily compensated, and loss of less tangible but more precious rights; " '[w]here only property rights are involved, mere postponement of the judicial enquiry is not a denial of due process.' " Mitchell v. W. T. Grant Co., 416 U.S. 600, 611, 94 S.Ct. 1895, 1902, 40 L.Ed.2d 406; quoting from Phillips v. Commissioner, 283 U.S. 589, 596-597, 51 S.Ct. 608, 611, 75 L.Ed.2d 1289. See also Michigan v. Tyler, 436 U.S. 499, 514, 98 S.Ct. 1942, 1953, 56 L.Ed.2d 486 (opinion of STEVENS, J.).
10
Even before Hayden had repudiated the mere-evidence rule, scholars had recognized that such a change in the scope of the prosecutor's search authority would require a fresh examination of the probable-cause requirement. It was noted that the personal char cter of some evidentiary documents would "justify stringent limitation, if not total prohibition, of their seizure by exercise of official authority." Taylor, supra, n. 4, at 66.
It is ironic that the Court today should adopt a rigid interpretation of the Warrant Clause to uphold this search when the Court was prepared only a few years ago to rely on the flexibility of the Clause to create an entirely new warrant in order to preserve the government's power to conduct unannounced inspections of citizens' homes and businesses. See Camara v. Municipal Court, 387 U.S. 523, 534-535, and 538, 87 S.Ct. 1727, 1733-1734, and 1735, 18 L.Ed.2d 930.
11
"There must, of course, be a nexus—automatically provided in the case of fruits, instrumentalities or contraband—between the item to be seized and criminal behavior. Thus in the case of 'mere evidence,' probable cause must be examined in terms of cause to believe that the evidence sought will aid in a particular apprehension or conviction. In so doing, consideration of police purposes will be required." 387 U.S., at 307, 87 S.Ct., at 1650.
12
"The danger is all too obvious that a criminal will destroy or hide evidence or fruits of his crime if given any prior notice." Fuentes v. Shevin, 407 U.S. 67, 93-94 n. 30, 92 S.Ct. 1983, 2001, 32 L.Ed.2d 556.
13
Cf. Marshall v. Barlow's Inc., 436 U.S. 307, 336-339, and nn. 9-11, 98 S.Ct. 1816, 1832-1834, and nn. 9-11, 56 L.Ed.2d 305 (STEVENS, J., dissenting).
| 01
|
436 U.S. 618
98 S.Ct. 2010
56 L.Ed.2d 581
MOBIL OIL CORPORATION, Petitioner,v.Frances Nell HIGGINBOTHAM, Administratrix of the Estate of Marshall K. Higginbotham, et al.
No. 76-1726.
Argued Jan. 10, 11, 1978.
Decided June 5, 1978.
Rehearing Denied Oct. 2, 1978.
See 439 U.S. 884, 99 S.Ct. 232.
Syllabus
In an action for wrongful death on the high seas, the measure of damages is governed by the Death on the High Seas Act, 46 U.S.C. § 762, which limits a decedent's survivors' recovery to their "pecuniary loss," and hence the survivors are not entitled to recover additional damages under general maritime law for "loss of society." Pp. 620-626.
545 F.2d 422, reversed and remanded.
Carl J. Schumacher, Jr., New Orleans, La., for petitioner.
Jack C. Benjamin, New Orleans, La., for respondents.
Mr. Justice STEVENS delivered the opinion of the Court.
1
This case involves death on the high seas. The question is whether, in addition to the damages authorized by federal statute, a decedent's survivors may also recover damages under general maritime law. The United States Court of Appeals for the Fifth Circuit, dis greeing with the First Circuit, held that survivors may recover for their "loss of society," as well as for their pecuniary loss.1 We reverse.
2
Petitioner used a helicopter in connection with its oil drilling operations in the Gulf of Mexico about 100 miles from the Louisiana shore. On August 15, 1967, the helicopter crashed outside Louisiana's territorial waters, killing the pilot and three passengers. In a suit brought by the passengers' widows, in their representative capacities, the District Court accepted admiralty jurisdiction2 and found that the deaths were caused by petitioner's negligence. The court awarded damages equal to the pecuniary losses suffered by the families of two passengers.3 Although the court valued the two families' loss of society at $100,000 and $155,000, it held that the law did not authorize recovery for this loss.4 The Court of Appeals reversed, holding that the plaintiffs were entitled to claim damages for loss of society. We granted certiorari limited to this issue. 434 U.S. 816, 98 S.Ct. 54, 54 L.Ed.2d 72.
3
* In 1877, the steamer Harrisburg collided with a schooner in Massachusetts coastal waters. The schooner sank, and its first officer drowned. Some five years later, his widow brought a wrongful-death action against the Harrisburg. This Court held that admiralty afforded no remedy for wrongful death in the absence of an applicable state or federal statute. The Harrisburg, 119 U.S. 199, 7 S.Ct. 140, 30 L.Ed. 358. Thereafter, suits arising out of maritime fatalities were founded by necessity on state wrongful-death statutes. See, e. g., The Hamilton, 207 U.S. 398, 28 S.Ct. 133, 52 L.Ed. 264.
4
In 1920, Congress repudiated the rule of The Harrisburg for maritime deaths occurring beyond the territorial waters of any State. It passed the Death on the High Seas Act (hereinafter sometimes DOHSA),5 creating a remedy in admiralty for wrongful deaths more than three miles from shore. This Act limits the class of beneficiaries to the decedent's "wife, husband, parent, child, or dependent relative,"6 establishes a two-year period of limitations,7 allows suits filed by the victim to continue as wrongful-death actions if the victim dies of his injuries while suit is pending,8 and provides that contributory negligence will not bar recovery.9 With respect to damages, the statute declares: "The recovery . . . shall be a fair and just compensation for the pecuniary loss sustained by the persons for whose benefit the suit is brought . . . ."10
5
In the half century between 1920 and 1970, deaths on the high seas gave rise to federal suits under DOHSA, while those in territorial waters were largely governed by state wrongful-death statutes.11 DOHSA brought a measure of uniformity and predictability to the law on the high seas, but in territorial waters, where The Harrisburg made state law the only source of a wrongful-death remedy, the continuing impact of that decision produced uncertainty12 and incongruity.13 The reasoning of The Harrisburg, which was dubious at best in 1886,14 became less and less satisfactory as the years passed.
6
In 1970, therefore, the Court overruled The Harrisburg. In Moragne v. States Marine Lines, Inc., 398 U.S. 375, 90 S.Ct. 1772, 26 L.Ed.2d 339, the Court held that a federal remedy for wrongful death does exist under general maritime law. The case concerned a death in Florida's territorial waters. The defendant argued that Congress, by limiting DOHSA to the high seas, had evidenced an intent to preclude federal judicial remedies in territorial waters. The Court concluded, however, that the reason Congress confined DOHSA to the high seas was to prevent the Act from abrogating, by its own force, the state remedies then available in state waters. Id., at 400, 90 S.Ct., at 1787.
7
In Moragne the Court left various subsidiary questions concerning the nonstatutory death remedy—such as the schedule of beneficiaries and the limitations period—for "further sifting through the lower courts in future litigation." Id., at 408, 90 S.Ct., at 1792. A few years later, in Sea-Land Services, Inc. v. Gaudet, 414 U.S. 573, 94 S.Ct. 806, 39 L.Ed.2d 9, the Court confronted some of these questions. Among the issues addressed in Gaudet was the measure of survivors' damages.15 The Court held that awards could include compensation for loss of support and services, for funeral expenses, and for loss of society, but not for mental anguish or grief. Id., at 583-591, 94 S.Ct., at 814-818. The Court recognized that DOHSA, which compensates only for pecuniary losses, did not allow awards for loss of society. But the accident in Gaudet, like that in Moragne, took place in territorial waters, where DOHSA does not apply. The Court chose not to adopt DOHSA's pecuniary-loss standard; instead it followed the "clear majority of States" and "the humanitarian policy of the maritime law," both of which favored recovery for loss of society. 414 U.S., at 587-588, 94 S.Ct., at 816. In sum, the Court made a policy determination in Gaudet which differed from the choice made by Congress when it enacted the Death on the High Seas Act.
II
8
The Gaudet opinion was broadly written. It did not state that the place where death occurred had an influence on its analysis. Gaudet may be read, as it has been, to replace entirely the Death on the High Seas Act.16 Its holding, however, applies only to coastal waters. We therefore must now decide which measure of damages to apply in a death action arising on the high seas—the rule chosen by Congress in 1920 or the rule chosen by this Court in Gaudet.
9
As the divergence of views among the States discloses, there are valid arguments both for and against allowing recovery for loss of society. Courts denying recovery cite two reasons: (1) that the loss is "not capable of measurement by any material or pecuniary standard," and (2) than an award for the loss "would obviously include elements of passion, sympathy and similar matters of improper character." 1 S. Speiser, Recovery for Wrongful Death, § 3:49 (2d ed. 1975).17 Courts allowing the award counter: (1) that the loss is real, however intangible it may be, and (2) that problems of measurement should not justify denying all relief. See generally Sea-Land Services, Inc. v. Gaudet, supra, at 588-590, 94 S.Ct., at 816-817.
10
In this case, however, we need not pause to evaluate the opposing policy arguments. Congress has struck the balance for us. It has limited survivors to recovery of their pecuniary losses. Respondents argue that Congress does not have the last word on this issue—that admiralty courts have traditionally undertaken to supplement maritime statutes and that such a step is necessary in this case to preserve the uniformity of maritime law. Neither argument is decisive.
11
We recognize today, as we did in Moragne, the value of uniformity, but a ruling that DOHSA governs wrongful-death recoveries on the high seas poses only a minor threat to the uniformity of maritime law.18 Damages aside, none of the issues on which DOHSA is explicit have been settled to the contrary by this Court in e ther Moragne or Gaudet. Nor are other disparities likely to develop. As Moragne itself implied,19 DOHSA should be the courts' primary guide as they refine the nonstatutory death remedy, both because of the interest in uniformity and because Congress' considered judgment has great force in its own right. It is true that the measure of damages in coastal waters will differ from that on the high seas, but even if this difference proves significant,20 a desire for uniformity cannot override the statute.
12
We realize that, because Congress has never enacted a comprehensive maritime code, admiralty courts have often been called upon to supplement maritime statutes. The Death on the High Seas Act, however, announces Congress' considered judgment on such issues as the beneficiaries, the limitations period, contributory negligence, survival, and damages. See nn. 6-10, supra. The Act does not address every issue of wrongful-death law, see e. g., n. 15, supra, but when it does speak directly to a question, the courts are not free to "supplement" Congress' answer so thoroughly that the Act becomes meaningless.
13
In Moragne, the Court recognized a wrongful-death remedy that supplements federal statutory remedies. But that holding depended on our conclusion that Congress withheld a statutory remedy in coastal waters in order to encourage and preserve supplemental remedies. 398 U.S., at 397-398, 90 S.Ct., at 1785-1786. Congress did not limit DOHSA beneficiaries to recovery of their pecuniary losses in order to encourage the creation of nonpecuniary supplements. See generally Barbe v. Drummond, 507 F.2d 794, 801 n. 10 (CA1 1974); Wilson v. Transocean Airlines, 121 F.Supp. 85 (ND Cal.1954). There is a basic difference between filling a gap left by Congress' silence and rewriting rules that Congress has affirmatively and specifically enacted. In the area covered by the statute, it would be no more appropriate to prescribe a different measure of damages than to prescribe a different statute of limitations, or a di ferent class of beneficiaries. Perhaps the wisdom we possess today would enable us to do a better job of repudiating The Harrisburg than Congress did in 1920, but even if that be true, we have no authority to substitute our views for those expressed by Congress in a duly enacted statute.
14
Accordingly, the judgment of the Court of Appeals is reversed, and the case is remanded for further proceedings consistent with this opinion.
15
It is so ordered.
16
Mr. Justice BRENNAN took no part in the consideration or decision of this case.
17
Mr. Justice MARSHALL, with whom Mr. Justice BLACKMUN joins, dissenting.
18
Just a few years ago, in Sea-Land Services, Inc. v. Gaudet, 414 U.S. 573, 94 S.Ct. 806, 39 L.Ed.2d 9 (1974), this Court held that, "under the maritime wrongful-death remedy, [a] decedent's dependents may recover damages for their LOSS OF . . . SOCIETY . . . ." id., at 584, 94 s.CT., at 814. thE fact that the injury there occurred within three miles of shore, in the territorial waters of a State, had no bearing on the decision at the time it was rendered, as the majority today recognizes, ante, at 622-623. Nor did we place any emphasis on the situs of injury when we first upheld the maritime wrongful-death remedy, as a matter of "general maritime law," in Moragne v. States Marine Lines, Inc., 398 U.S. 375, 409, 90 S.Ct. 1772, 1792, 26 L.Ed.2d 339 (1970). Today the Court takes a narrow and unwarranted view of these cases, limiting them to their facts and making the availability of recovery for loss of society turn solely on a ship's distance from shore at the time of the injury causing death.
19
A unanimous Court concluded in Moragne that the distance of a ship from shore is a fortuity unrelated to the reasons for allowing a seaman's family to recover damages upon his death. See id., at 395-396, 405, 90 S.Ct., at 1784-1785, 1790. These reasons are rooted in the traditions of maritime law, which has always shown "a special solicitude for the welfare of those men who undert[ake] to venture upon hazardous and unpredictable sea voyages." Id., at 387, 90 S.Ct., at 1780. See also Gaudet, supra, 414 U.S., at 588, 94 S.Ct., at 816 ("humanitarian policy of the maritime law"). In light of this "special solicitude," Mr. Justice Harlan examined in Moragne a number of "anomalies," 398 U.S., at 395-396, 90 S.Ct., at 1784-1785, that had resulted from the earlier rule of The Harrisburg, 119 U.S. 199, 7 S.Ct. 140, 30 L.Ed. 358 (1886), under which the availability of a cause of action for wrongful death at sea depended entirely on the existence of a statutory remedy.
20
The "anomaly" most relevant for present purposes was that "identical breaches of the duty to provide a seaworthy ship, resulting in death, produce[d] liability outside the three-mile limit—since a claim under the Death on the High Seas Act may be founded on unseaworthiness . . .—but not within the territorial waters of a State whose local statute exclude[d] unseaworthiness claims." 398 U.S., at 395, 90 S.Ct., at 1785. The Moragne Court found "much force" in the argument of the United States (appearing as amicus curiae ) that this difference in treatment based on location of the injury could not be supported by any "rational policy," especially since the underlying duty to furnish a seaworthy vessel is a federal one. Id., at 395-396, 90 S.Ct., at 1784-1785. Accordingly, because of this anomaly and others, the Court in Moragne declined to adhere any longer to "a rule unjustified in reason, which produces different results for breaches of duty in situations that cannot be differentiated in policy." Id., at 405, 90 S.Ct., at 1790.
21
The Court today establishes a rule that, like the pre-Moragne rule, "produces different results . . . in situations that cannot be differentiated in policy." When death arises from injuries occurring within a State's territorial waters, dependents will be able to recover for loss of society under the "humanitarian" rule of Gaudet, 414 U.S., at 588, 94 S.Ct., at 816. But once a vessel crosses the imaginary three-mile line, the seaman's dependents no longer have a remedy for an identical loss, occasioned by an identical breach of duty. Instead, they may recover only pecuniary losses, which are allowed them by the Death on the High Seas Act (DOHSA), 46 U.S.C. § 762.
22
The irony implicit in the Court's result is readily apparent. As in the pre- Moragne situation, the benefits available to a seaman's dependents will once again vary depending on whether the injury causing death occurs in state territorial waters or on the high seas. Now, however, more generous benefits will be available if the injury occurs in state waters. We have thus come full circle from Moragne, which was designed to eliminate reliance on an artificial three-mile line as the basis for disparate treatment of dependents of similarly situated seamen. There is undoubtedly a certain symmetry in the Court's return to the pre-Moragne anomalies, but it is a symmetry that is both patently unfair to a seaman's dependents and flatly inconsistent with the spirit of Moragne and Gaudet.
23
The dictates of fairness and the words of this Court would all be beside the point, of course, if Congress could be said to have made a determination to disallow any recovery except pecuniary loss with regard to deaths arising on the high seas. But Congress made no such determination when it passed DOHSA. Congress was writing in 1920 against the background of The Harrisburg, under which a remedy for death on the high seas depended entirely on the existence of a statute allowing recovery. This rule left many dependents without any remedy and was viewed as "a disgrace to civilized people." By enacting DOHSA, Congress sought to "bring our maritime law into line with the laws of those enlightened nations which confer a right of action for death at sea." S.Rep.No.216, 66th Cong., 1st Sess., 4 (1919); H.R.Rep.No.674, 66th Cong., 2d Sess., 4 (1920), quoted in Moragne, supra, 398 U.S., at 397, 90 S.Ct., at 1785.
24
The Court today uses this ameliorative, remedial statute as the foundation of a decision denying a remedy. It purports to find, in the section of DOHSA that provides for "fair and just compensation for the pecuniary loss sustained," 46 U.S.C. § 762, a "considered judgment" by Congress that recovery must be limited to pecuniary loss, ante, at 625. Nothing in this section, however, states that recovery must be so limited; certainly Congress was principally concerned, not with limiting recovery, but with ensuring that those suing under DOHSA were able to recover at least their pecuniary loss. As Representative Montague stated in the House debate, the Act was meant to provide a cause of action "in cases where there is now no remedy." 59 Cong.Rec. 4486 (1920). See generally S.Rep.No.216, supra, at 2-5; H.R.Rep.No.674, supra, at 2-4; 59 Cong.Rec. 4482-4486 (1920). See also Moragne, 398 U.S., at 393, 90 S.Ct., at 1783 (DOHSA was designed "to furnish [a] remedy denied by the courts").
25
Although recognizing that DOHSA was a response to The Harrisburg, ante, at 620, the majority opinion otherwise ignores the legislative history of the Act. The fundamental premise of the opinion—that Congress meant to "[limit] survivors to recovery of their pecuniary losses," ante, at 623—is simply assumed. Today's decision thus stands in sharp contrast to Moragne, where Mr. Justice Harlan carefully surveyed the legislative history and then concluded that "no intention appears that the Act have the effect of foreclosing any nonstatutory federal remedies that might be found appropriate to effectuate the policies of general maritime law." 398 U.S., at 400, 90 S.Ct., at 1787.
26
Because there is no congressional directive to foreclose nonstatutory remedies, I believe that maritime law principles requ re us to uphold the remedy for loss of society at issue here. The general approach that mandates this result was stated over 100 years ago by Mr. Chief Justice Chase, sitting on circuit, in a passage that has since been quoted in both Moragne and Gaudet:
27
"[C]ertainly it better becomes the humane and liberal character of proceedings in admiralty to give than to withhold the remedy, when not required to withhold it by established and inflexible rules." The Sea Gull, 21 F.
28
as. 909, 910 (No. 12,578) (CC Md.1865), quoted in 398 U.S., at 387, 90 S.Ct., at 1781; 414 U.S., at 583, 94 S.Ct., at 814.
29
In the instant case we have no "established and inflexible rule"; we have at most an expression of the minimum recovery that must be available to the dependents of a seaman who dies on the high seas. When DOHSA is read against the background out of which it arose—rather than as if it had been written after Moragne and Gaudet —it becomes apparent that Congress did not mean to exclude the possibility of recovery beyond pecuniary loss.
30
The only remaining issue is whether allowing recovery for loss of society would be "appropriate to effectuate the policies of general maritime law." Moragne, supra, at 400, 90 S.Ct., at 1787. This issue was resolved in Gaudet, where we stated, without any situs qualifications, that recovery for loss of society is not merely "appropriate to effectuate" maritime law policies but is "compelled" by them. 414 U.S., at 588, 94 S.Ct., at 816. I would follow Gaudet in this case and thereby avoid the creation of a new and unfair "anomaly" of the type that Moragne was intended to eliminate.
31
Accordingly, I dissent.
1
Compare Barbe v. Drummond, 507 F.2d 794, 800-802 (CA1 1974), with Higginbotham v. Mobil Corp., 545 F.2d 422 (CA5 1977). The members of the Higginbotham panel expressed their agreement with Barbe, supra, but considered the issue foreclosed in their Circuit by Law v. Sea Drilling Corp., 510 F.2d 242, on rehearing, 523 F.2d 793 (CA5 1975). In that case, another Fifth Circuit panel stated that the statutory remedy provided by the Death on the High Seas Act was no longer needed. Id., at 798. See also n. 16, infra.
2
357 F.Supp. 1164, 1167 (WD La.1973). The District Court bottomed admiralty jurisdiction on a finding that the helicopter was the functional equivalent of a crewboat. The ruling has not been challenged in this Court. Cf. Executive Jet Aviation, Inc. v. Cleveland, 409 U.S. 249, 271-272, 93 S.Ct. 493, 505-506, 34 L.Ed.2d 454.
3
360 F.Supp. 1140 (WD La.1973). One family received $362,297, the other $163,400. The District Court held that the third passenger's family could claim benefits only under the Longshoremen's and Harbor Workers' Compensation Act. 33 U.S.C. § 901 et seq. The Court of Appeals reversed this ruling. 545 F.2d, at 431-433.
4
The former figure included $50,000 for one widow and $50,000 for her only daughter. The latter figure included $25,000 for the second widow and for each of two minor children, as well as $20,000 for each of four older children. 360 F.Supp., at 1144-1148.
5
41 Stat. 537, 46 U.S.C. § 761 et seq.
6
§ 761.
7
§ 763.
8
§ 765.
9
§ 766. In addition, the statute preserved the applicability of local law on the Great Lakes, in the Panama Canal Zone, and within the States' territorial waters. § 767. Rights under foreign wrongful-death laws were also preserved. § 764.
10
§ 762.
11
The death of a seaman was an exception to this rule. The Jones Act gives a remedy to the dependents of a seaman killed in the course of employment by his employer's negligence, no matter where the wrong takes place. § 688.
12
In The Tungus v. Skovgaard, 358 U.S. 588, 79 S.Ct. 503, 3 L.Ed.2d 524, for example, the Court could not definitively determine whether New Jersey law allowed recovery for unseaworthiness or required proof of negligence.
13
Three anomalies were identified in Moragne v. States Marine Lines, Inc., 398 U.S. 375, 90 S.Ct. 1772, 26 L.Ed.2d 339. In States with limited wrongful-death remedies, shipowners were liable if their breach of a maritime duty caused injury but not if the breach caused death. Furthermore, deaths due to unseaworthiness had a remedy on the high seas, but often went unremedied inside the three-mile limit. Finally "true" seamen were denied the benefit of state wrongful-death laws while longshoremen doing seamen's work could assert claims under state law. Id., at 395-396, 90 S.Ct., at 1784-1785.
14
The Court in The Harrisburg arrived at its conclusion after rejecting arguments founded on nothing more than "good reason," "natural equity," and the experience of nations like France and Scotland. 119 U.S., at 212-213, 7 S.Ct., at 146.
15
The primary issue in Gaudet was whether a decedent's survivors could bring a Moragne action even though the decedent himself had sued and recovered damages before dying. DOHSA offered no guidance on this issue. 414 U.S., at 583 n. 10, 94 S.Ct., at 814 n. 10. In the course of providing its own answer, the Court addressed the contention that the survivors' recovery would simply duplicate the decedent's. The Court outlined the elements of damages under the new maritime-death remedy and noted that several were distinct from those available to the decedent himself.
16
As Chief Judge Brown put it in Law v. Sea Drilling Corp., 523 F.2d 793 (CA5 1975): "It is time that the dead hand of The Harrisburg —whether in the courts or on the elbow of the congressional draftsmen of DOHSA—follow the rest of the hulk to an honorable rest in the briney deep. . . . No longer does one need . . . DOHSA as a remedy. There is a federal maritime cause of action for death on navigable waters—any navigable waters—and it can be enforced in any court." Id., at 798.
17
The award contemplated by Gaudet is especially difficult to compute, for the jury must calculate the value of the lost love and affection without awarding damages for the survivors' grief and mental anguish, even though that grief is probably the most tangible expression of the survivors' emotional loss. See Sea-Land Services, Inc. v. Gaudet, 414 U.S., at 585-586 n. 17, 94 S.Ct., at 814-815 n. 17. See also G. Gilmore & C. Black, Law of Admiralty 372 (2d ed. 1975).
18
Moragne proclaimed the need for uniformity in a far more compelling context. When Moragne was decided, fatal accidents on the high seas had an adequate federal remedy, while the same accidents nearer shore might yield more generous awards, or none at all, depending on the law of the nearest State. The only disparity that concerns us today is the difference between applying one national rule to fatalities in territorial waters and a slightly narrower national rule to accidents farther from land.
19
Moragne recognized that the courts would need to devise a limitations period and a schedule of beneficiaries for the new death remedy. The Court considered several alternative solutions to these problems. Only DOHSA, however, figured prominently in the discussion of both issues. 398 U.S., at 405-408, 90 S.Ct., at 1790-1791.
20
It remains to be seen whether the difference between awarding loss-of-society damages under Gaudet and denying them under DOHSA has a great practical significance. It may be argued that the competing views on awards for loss of society, see supra, at 623, can best be reconciled by allowing an award that is primarily symbolic, rather than a substantial portion of the survivors' recovery. We have not been asked to rule on the propriety of the large sums that the District Court would have awarded for loss of society in this case. See n. 4, supra.
Similarly, there may be no great disparity between DOHSA and Gaudet on the issue of funeral expenses. Gaudet awards damages to dependents who have paid, or will pay, for the decedent's funeral, evidently on the theory that, but for the wrongful death, the decedent would have accumulated an estate large enough to pay for his own funeral. 414 U.S., at 591, 94 S.Ct., at 818. On that theory, the cost of the funeral could also be considered a pecuniary loss suffered by the dependent as a result of the death.
| 78
|
436 U.S. 725
98 S.Ct. 2068
56 L.Ed.2d 658
Arthur F. QUERN, etc., et al., Petitioners,v.Venus MANDLEY et al. Joseph A. CALIFANO, Jr., Secretary of Health, Education, and Welfare, Petitioner, v. Venus MANDLEY et al.
Nos. 76-1159, 76-1416.
Argued Nov. 30, 1977.
Decided June 6, 1978.
Syllabus
This litigation originated as a challenge to the validity of Illinois' Emergency Assistance to Needy Families with Children (EA) program under Title IV-A of the Social Security Act (SSA). The Court of Appeals, reversing the District Court, first held that the program was invalid because it limited eligibility for such assistance more narrowly than § 406(e)(1) of the SSA, which makes federal matching funds available under a state EA program for emergency aid to intact families with children if threatened with destitution, regardless of the cause of the need. In a later appeal involving the validity of a proposed alternative to the EA program, the Court of Appeals held that § 403(a)(5) of the SSA, which authorizes federal funding of a state EA program, is the exclusive source of federal funds for a state program of emergency assistance and that therefore a new "special needs" program that Illinois proposed to operate under its Title IV-A Aid to Families with Dependent Children (AFDC) program, funded under § 403(a)(1) of the SSA, in place of its withdrawn EA program, must, as a de facto EA program, extend aid to all persons eligible under § 406(e)(1). Held :
1. There is nothing in the policies or history of the EA statute to indicate that Illinois' proposed "special needs" program should not be judged solely under the requirements for an AFDC program funded under § 403(a)(1) without regard to the EA requirements of §§ 406(e) and 403(a)(5). Pp. 735-736.
2. The proposed "special needs" program is permissible as part of an AFDC program alone. A plan to meet certain emergency needs of AFDC recipients—specifically actual or threatened loss of shelter due to damage or eviction—is not necessarily improper as an AFDC "special needs" program simply because it addresses a nonrecurring need that could alternatively be provided for under an EA program. Pp. 737-739.
3. Neither § 402(a)(10) of the SSA, which makes AFDC, not EA, eligibility criteria mandatory, nor § 406(e), which defines the permis sible scope of an EA program for purpose of federal funding, imposes mandatory eligibility standards on States that elect to participate in the EA program, and therefore Illinois is not precluded from receiving matching federal funds for either an EA or a "special needs" program simply because it limits eligibility for aid under that program more narrowly than § 406(e). Pp. 739-747.
545 F.2d 1062, reversed and remanded.
George W. Lindberg, Chicago, Ill., for petitioners in No. 76-1159.
Keith A. Jones, Washington, D. C., for petitioner in No. 76-1416.
Michael R. Lefkow, Chicago, Ill., for respondents in both cases.
Mr. Justice STEWART delivered the opinion of the Court.
1
These cases require examination of the interplay between state option and federal mandate within the system of cooperative federalism created by the public assistance programs of Title IV-A of the Social Security Act, 42 U.S.C. § 601 et seq. The ultimate question to be decided is whether a State may ever receive federal matching funds for a program of emergency assistance to needy families, either under the general program of Aid to Families with Dependent Children (AFDC)1 or under the specific provisions for Emergency Assistance to Needy Families with Children (EA),2 if it limits eligibility for such aid more narrowly than the federal EA statute.
2
* Title IV-A of the Social Security Act establishes several different public aid programs under the general rubric of "Grants to States for Aid and Services to Needy Families with Children." In order to receive federal funds under any of the Title IV-A programs a State must adopt a "state plan for aid and services to needy families with children" that is approved by the United States Department of Health, Education, and Welfare (HEW) as meeting the requirements set forth in § 402 of the Act.
3
AFDC is the core of the Title IV-A system. As the Court observed in one of its earliest forays into Title IV, AFDC is a categorical aid program, and "the category singled out for welfare assistance . . . is the 'dependent child,' who is defined in § 406 of the Act . . . as an age-qualified 'needy child . . . who has been deprived of parental support or care by reason of the death, continued absence from the home, or physical or mental incapacity of a parent, and who is living with' any one of several listed relatives." King v. Smith, 392 U.S. 309, 313, 88 S.Ct. 2128, 2131, 20 L.Ed.2d 1118. A State's expenditures for AFDC, under an approved § 402 state plan, are reimbursed by the Federal Government according to the formula set forth in § 403(a)(1).
4
The federal EA program was added to Title IV as part of the omnibus Social Security Amendments of 1967. Pub.L. 90-248, § 206, 81 Stat. 893. It was described in the Senate Finance Committee report as "a new program optional with the States [to] authorize dollar-for-dollar Federal matching to provide temporary assistance to meet the great variety of situations faced by needy children in families with emergencies." S.Rep.No.744, 90th Cong., 1st Sess., 4 (1967); U.S.Code Cong. & Admin.News 1967, pp. 2834, 2838. To participate in the program a State must include a provision for EA in its § 402 state plan, and funding at a flat rate of 50% of program expenses is authorized by § 403(a)(5).
5
Unlike AFDC, eligibility for EA is not limited to "dependent children." Instead, the term "emergency assistance to needy families with children" is broadly defined in § 406(e) to include money payments and other kinds of aid provided on a temporary basis "to avoid destitution . . . or to provide living arrangements" for a "needy child under the age of 21 who is . . . without available resources." 42 U.S.C. § 606(e)(1). Thus under the EA statute, federal matching funds are available for emergency aid to intact families with children if threatened with destitution, regardless of the cause of their need.
6
The State of Illinois, however, elected to adopt an EA program of much narrower scope. It provided only for (1) aid to AFDC families who were without shelter as a result of either damage to their homes or court-ordered eviction for reasons other than nonpayment of rent; and (2) aid to applicants determined to be presumptively eligible for AFDC who were in immediate need of clothing or household furnishings.
7
In 1973 the respondents instituted a class action against state and federal officials on behalf of all "AFDC recipients, applicants for AFDC, and other families with needy children" in Illinois seeking a declaratory judgment that the Illinois EA program violated federal law by defining eligibility more narrowly than § 406(e)(1), and an injunction restraining the defendants from administering the allegedly unlawful program.3 The United States District Court for the Northern District of Illinois held in an unreported opinion that the State's program was not inconsistent with federal law. The Court of Appeals for the Seventh Circuit reversed this judgment, ruling that "Illinois may no longer conduct an emergency assistance program under [§ 406(e)] in which some of the families with needy children described in [§ 406(e)] are given aid and some are not." Mandley v. Trainor, 523 F.2d 415, 423 (Mandley I ).
8
After the Court of Appeals' mandate was returned to the District Court, the plaintiffs submitted a proposed final order requiring the State to conform its EA program to the provisions of § 406(e) and further requiring the federal defendants to promulgate regulations consistent with the Court of Appeals' interpretation of the statute. The state and federal defendants not only opposed the substantive terms of the proposed order, but also filed motions to dismiss the complaint altogether on the ground that the case had been rendered moot by the State's decision to withdraw entirely from the EA program. In support of its motion the State filed an affidavit from the Chief Fiscal Officer of its Department of Public Aid stating that "the Department would immediately cease all activities and requests for federal reimbursement pursuant to the 'Emergency Assistance' program of § 406(e) of the Social Security Act" and that "no additional § 406(e) federal funds [would] be drawn for the balance . . . of the current fiscal year."
9
In opposing the motions to dismiss, the plaintiffs argued that even though the State would no longer request federal reimbursement for emergency aid under §§ 406(e) and 403(a)(5), it intended nonetheless to operate virtually the identical program as an AFDC "special needs" program and to seek federal reimbursement under § 403(a)(1). They contended that such a course of conduct would be equally unlawful. The District Court took the position that the validity of any proposed program under the AFDC provisions presented a new question that had not been raised in the original lawsuit, and that the plaintiffs' challenge to the § 406(e) program had indeed been rendered moot by the State's decision to withdraw altogether from the EA program. When the plaintiffs declined to amend their complaint to allege that the new program would also be in violation of § 403(a)(1), the District Court entered an order dismissing the cause "for lack of case or controversy."
10
The Court of Appeals again reversed. Mandley v. Trainor, 7 Cir., 545 F.2d 1062 (Mandley II ). Noting that the defendants "admit[ted] that they [were] conducting the same program under the label 'special assistance' that they formerly conducted under the label of emergency assistance," Id., at 1068, the Court of Appeals held that the change in funding arrangements did not raise issues beyond the scope of the plaintiffs' pleadings, and did not render the case moot. As the appellate court viewed the situation, the plaintiffs were still claiming, as they always had, that any federally funded program for emergency assistance must conform with the eligibility standards of § 406(e)(1), and that the defendants were still violating the federal law by using federal funds to operate an emergency assistance program that defined eligibility more narrowly than § 406(e)(1). On the merits the Court of Appeals agreed with the plaintiffs that § 403(a)(5) is the exclusive source of federal funds for a program of emergency assistance, and therefore held that Illinois' proposed new program, as a de facto EA program, must extend aid to all persons eligible under § 406(e)(1).
11
Because of the lengthy and, in its view, wrongful delay in the implementation of its Mandley I mandate, the Court of Appeals then considered sua sponte the defendants' objections to the terms of the final order that had been proposed by the plaintiffs after the first remand, and directed the District Court on remand to enter the proposed order with minor modifications. As to the state defendants this order would provide:
12
"Defendants . . . are enjoined, so long as Illinois receives federal funding under Title IV-A of the Social Security Act, from claiming reimbursement for emergency assistance (however designated) under any other section of the Act than §§ 406(e) and 403(a)(5) and are enjoi ed from using any other means of limiting eligibility for emergency assistance more narrowly than the provisions of § 406(e), and are further enjoined from denying emergency assistance . . . to any member of the plaintiff class with a needy child [who is eligible under the definition in § 406(e)]."4
In addition the Secretary of HEW was to be
13
"enjoined from approving state plans for emergency assistance which limit eligibility more narrowly than § 406(e) of the Act or funding an emergency assistance program (however designated) under any provision of the Act other than §§ 406(e) and 403(a)(5)."5
14
The broad injunction ordered by the Court of Appeals raises two distinct statutory questions: whether a program of emergency aid to AFDC families may qualify for federal funding under a provision other than § 403(a)(5), and more particularly as an AFDC "special needs" program under § 403(a)(1);6 and whether a State that adopts an EA program under §§ 403(a)(5) and 406(e) must define eligibility no more narrowly than § 406(e).7 We granted certiorari, 431 U.S. 953, 97 S.Ct. 2672, 53 L.Ed.2d 269, to consider these important questions affecting the nationwide administration of a major federal welfare program.
II
15
As the Court of Appeals readily conceded, its holding in Mandley I that federal eligibility standards are mandatory upon States that adopt the optional EA program in no way obligates a State to continue that program. The federal definition of eligibility in § 406(e), like the other provisions of Title IV of the Social Security Act, simply governs the dispensation of federal funds. See Townsend v. Swank, 404 U.S. 282, 292, 92 S.Ct. 502, 30 L.Ed.2d 448 (BURGER, C. J., concurring in result). And while Congress may attach strings to its offer of federal funding, it does not require the States to accept any federal funds at all.
16
The Court of Appeals also acknowledged that § 406(e) does not by its own terms attach any eligibility "strings" to a program funded under the AFDC provisions. If Illinois' plan to meet the emergency needs of AFDC recipients by means of AFDC "special needs payments" was proper under § 403(a)(1), the broader EA eligibility definition would have no application. The Court of Appeals believed, however, that the requirements of § 406(e) would be "totally eviscerated" if States could evade them simply by resorting to the AFDC provisions. This effect, in its view, compels the conclusion that § 403(a)(5) is the exclusive source of federal funds for emergency needs, and therefore that emergency payments of the kind contemplated by the Illinois plan8 cannot be reimbursed under § 403(a)(1) as AFDC "special needs."
17
* Even assuming the Court of Appeals' premise that § 406(e) does impose mandatory standards of eligibility for EA, its conclusion simply does not follow. If a State adopts a program that is, for whatever reason, not a proper EA program, it is no "evasion" of the requirements of § 406(e) to seek alternative funding. It is merely an election not to operate an EA program, but to do something quite different instead. Since the statute clearly offers the States an option whether or not to adopt an EA program, it is in no sense "eviscerated" when a State chooses to forgo the offer.
18
The legislative history does not indicate a contrary intent. The Court of Appeals found highly significant the description of EA as an altogether "new" program that would provide federal matching for emergency assistance [f]or the first time," 113 Cong.Rec. 36319 (1967) (remarks of Sen. Curt s). But, as we have already observed, a critical distinction between EA and AFDC is that eligibility for the former does not depend on the absence of a parent from the home. Thus the enactment of EA extended aid to an entirely new class of families that had not previously been eligible for any form of federal assistance.9 In this context, the fact that EA was described as a "new" program hardly implies an understanding that the emergency needs of persons who were eligible for AFDC could not be met under the existing program.10 Indeed the contrary understanding is revealed in the observation that emergency assistance to AFDC applicants was "frequently . . . unavailable under State programs today." S.Rep.No.744, 90th Cong., 1st Sess., 165 (1967); U.S.Code Cong. & Admin.News 1967, p. 3002. (Emphasis supplied.)
19
There is nothing, therefore, in the policies or history of the EA statute to indicate that Illinois' proposed AFDC special-needs program should not be judged solely under the requirements for an AFDC program funded under § 403(a)(1), without regard to the EA requirements of §§ 406(e) and 403(a)(5). Accordingly, we must consider whether the special-needs program proposed by Illinois is permissible as part of an AFDC program alone.
B
20
Illinois' proposed program would recognize specified emergency needs as "special needs items" within its AFDC "standard of need." The standard of need is a dollar figure set by each State reflecting the amount deemed necessary to provide for essential needs, such as food, clothing, and shelter.11 See Rosado v. Wyman, 397 U.S. 397, 408, 90 S.Ct. 1207, 1215, 25 L.Ed.2d 442. It is the "yardstick" for measuring financial eligibility for assistance, but the level of benefits actually paid is not necessarily a function of the standard of need. Ibid. At least as early as 1966 federal regulations recognized that States could properly include special-needs items in their standards of need for AFDC.12 These "are usually defined as those needs that are recognized by the State as essential for some persons but not for all, and that must therefore be determined on an individual basis." U.S. Dept. of HEW, Social and Rehabilitation Service, Assistance Payments Administration, Characteristics of State Plans for Aid to Families with Dependent Children xiii (1974). (AFDC Survey). Whenever the special need is found to exist, it is budgeted in the total standard of need. Ibid.
21
Frequently the special need is a regular or recurrin expense, such as medication or a medically indicated diet, but this is not always the case. On the contrary, the 1974 AFDC Survey, supra, reveals that HEW has approved state plans that cover a wide variety of needs under the rubric of "special circumstance items," including one-time emergency needs like replacing major appliances,13 home repair,14 and catastrophic loss.15 Similarly, the loss of shelter because of damage or eviction is a particular, nonrecurring event that befalls some, but not all, AFDC recipients, which may be reflected in an adjustment in the standard of need whenever that event occurs.
22
By approving state plans that cover nonrecurring emergencies as special needs HEW has expressed its view that such items are properly included in the AFDC standard of need for reimbursement under § 403(a)(1). The interpretation of the agency charged with administration of the statute is, of course, entitled to substantial deference. New York Dept. of Social Services v. Dublino, 413 U.S. 405, 421, 93 S.Ct. 2507, 2516, 37 L.Ed.2d 688. Moreover, this view is entirely consistent with the well-established principle that the States have "undisputed power to set the level of benefits and the standard of need" for their AFDC programs. King v. Smith, 392 U.S., at 334, 88 S.Ct., at 2142; Dandridge v. Williams, 397 U.S. 471, 478, 90 S.Ct. 1153, 1158, 25 L.Ed.2d 491; Rosado v. Wyman, supra, 397 U.S., at 408, 90 S.Ct., at 1215; Jefferson v. Hackney, 406 U.S. 535, 541, 92 S.Ct. 1724, 1729, 32 L.Ed.2d 285. See n. 11, supra.
23
Since Illinois has not in fact submitted a proposed special-needs program for approval, see n. 8, supra, there is no way of knowing whether such a plan would comply in all other respects with the requirements for an AFDC program. But it is clear that a plan to meet certain emergency needs of AFDC recipients—specifically actual or threatened loss of shelter due to damage or eviction—is not necessarily improper as an AFDC special-needs program simply because it addresses a nonrecurring need that could alternatively be provided for under an EA program.
III
24
Although the Court of Appeals' opinion in Mandley II focused on the proposed special-needs program, the injunction it ordered to be entered on remand would prohibit not only the operation of such a program under AFDC, but any program of emergency assistance that defines eligibility more narrowly than § 406(e). In substance, therefore, the injunction would enforce Mandley I 's holding that § 406(e) imposes mandatory eligibility standards on States participating in the EA program. Since there is still a live controversy over this issue, see n. 7, supra, it is to that question that we now turn.
25
Section 406(e) defines EA in terms of four distinct considerations. First, unlike AFDC, it specifies a time limitation: EA may be provided only for a period not to exceed 30 days in any 12-month period. Second, it describes the persons on whose behalf aid may be furnished: needy children under the age of 21 who are living with specified relatives. Third, it defines the circumstances under which aid may be provided: where the child is without resources, and aid is necessary to "avoid destitution . . . or to provide living arrangements" for the child. Finally, it describes the method by which aid may be provided: not only cash payments and medical or remedial care, as under AFDC, but als payments in kind and "such services as may be specified by the Secretary." In summary, under EA any family with children that is for any reason threatened with destitution is eligible for emergency aid at least once in a 12-month period, and that aid may be provided by almost any means.
26
In declaring that Illinois is prohibited from narrowing these broad standards in any way,16 the Court of Appeals relied on a long line of this Court's cases mapping out the mandatory reach of the AFDC eligibility provisions. As to AFDC, the law is indeed clear. Each State is entirely free to set its own monetary standard of need and level of benefits. King v. Smith, supra, 392 U.S., at 334, 88 S.Ct., at 2141; Dandridge v. Williams, supra, 397 U.S., at 478, 90 S.Ct., at 1158; Rosado v. Wyman, 397 U.S., at 408, 90 S.Ct., at 1215; Jefferson v. Hackney, supra, 406 U.S., at 541, 92 S.Ct., at 1729.17 But the States are not free to narrow the federal standards that define the categories of people eligible for aid. Beginning with King v. Smith, supra, this Court has consistently held that States participating in the AFDC program must make assistance available to all persons who meet the criteria of § 406(a) of the Act. Carleson v. Remillard, 406 U.S. 598, 92 S.Ct. 1932, 32 L.Ed.2d 352; Townsend v. Swank, 404 U.S. 282, 92 S.Ct. 502, 30 L.Ed.2d 448. See also Lewis v. Martin, 397 U.S. 552, 90 S.Ct. 1282, 25 L.Ed.2d 561. The statutory foundation for this conclusion is § 402(a)(10), which requires that a State's "plan for aid and services to needy families with children" must provide that "aid to families with dependent children shall be furnished with reasonable promptness to all eligible individuals." 42 U.S.C. § 602(a)(10).
27
The question to be decided is whether these interpretive principles are to be applied to the EA program as well.
A.
28
The short answer is that, since § 402(a)(10) on its face applies only to "aid to families with dependent children" and not to the separately designated program of "emergency aid to needy families with children," it cannot be the basis for making the § 406(e) eligibility requirements mandatory on the States.
29
The Court of Appeals recognized that § 402(a)(10) was limited by its language to AFDC, but nevertheless concluded that Congress intended to treat EA "in the same way" because it is "part of the same statutory scheme," and rooted in the "same Congressional concern with the] deprivation of children that brought forth the AFDC program . . . ." Mandley I, 523 F.2d, at 422. But Congress' choice of precise language in this complex statute cannot be glossed over with such generalities.
30
The § 402 "state plan for aid and services to needy families with children" is the central, organizing element of the Title IV-A program. A State's plan establishes both its funding relationship with the Federal Government and the substantive terms of all Title IV-A programs in which it has elected to participate. Thus, the plan reflects not only the basic AFDC program of cash assistance defined in § 406(b), but also Title XX social services, see § 402(a)(15) and 42 U.S.C. § 1397 et seq., (1970 ed., Supp. V), and, if the State chooses to adopt them, the optional programs of EA, defined in § 406(e), and AFDC-Unemployed Fathers (AFDC-UF), established by § 407.
31
Section 402(a) lists some 20 specific requirements for which a state plan "must provide." Some clearly apply to the plan as a whole. These generally concern program administration. E. g., § 402(a)(1) ("provide that it shall be in effect in all political subdivisions of the State"); § 402(a)(5) ("provide SUCH . . . METHODS OF ADMINISTRATION . . . AS are found by the secretary to be necessary [and] proper . . . ."); § 402(a)(9) ("provide safeguards which restrict the use or disclosure of information concerning applicants or recipients . . ."). Others, like § 402(a)(10), refer specifically to "aid to families with dependent children." E. g., § 402(a)(7) ("provide that the State agency shall, in determining need, take into consideration any other income and resources of any child or relative claiming aid to families with dependent children"); § 402(a)(11) ("provide for prompt notice . . . to the State child support collection agency . . . of the furnishing of aid to families with dependent children with respect to a child who has been deserted or abandoned . . .").
32
The term "aid to families with dependent children" is given a very specific meaning in § 406(b)—and "emergency assistance to needy families with children" as defined in § 406(e) means, as we have observed, something quite different. It is true that both the EA and AFDC programs must be reflected in a State's § 402 plan, and both will be governed by those parts of § 402 that apply to the plan as a whole. But there is no basis for assuming that, when § 402 refers specifically to AFDC, those references are either meaningless or inadvertent. On the contrary, there is every reason to suppose that the exclusion of EA from specific substantive requirements of § 402, in particular § 402(a)(10)'s imposition of mandatory eligibility standards, was deliberate, since the absence of mandatory eligibility standards is wholly consistent with the nature and purpose of the EA program.
B
33
The EA program was adopted by means of an amendment to § 406 defining the new term "emergency assistance to needy families with children." Pub.L. 90-248, § 206(b), 81 Stat. 893. But nowhere in the EA statute is there a precise definition of eligibility comparable to the terms that have been held mandatory in AFDC. As to the latter, the term "aid to families with dependent children" is defined in § 406(b) as "money payments . . . in behalf of [a] dependent child . . . ." The term "dependent child" is separately defined in § 406(a) as a needy child who has been deprived of parental support, is living with specified relatives, and is either under the age of 18 or under the age of 21 and regularly attending school. It is this very specific definition of "dependent child" in § 406(a) that has been held to be mandatory upon the States in King v. Smith, 392 U.S. 309, 88 S.Ct. 2128, 20 L.Ed.2d 1118 ("deprived of parental support"), Carleson v. Remillard, 406 U.S. 598, 92 S.Ct. 1932, 32 L.Ed.2d 352 ("continued absence from the h me"), and Townsend v. Swank, 404 U.S. 282, 92 S.Ct. 502, 30 L.Ed.2d 448 ("regularly attending a school").
34
On the other hand, the term "emergency assistance to needy families with children" is defined in § 406(e) as payments and services furnished "in the case of a needy child" who meets certain requirements and is facing destitution. The structure of this statutory provision thus parallels § 406(b)—i. e.,, while it describes eligible persons, it is in terms a definition of the program for which federal funding is available. But in the EA program there is no separate provision, parallel to § 406(a), that defines the terms used to describe eligible persons.18 There is no statutory language, therefore, that can reasonably be understood as imposing uniform standards of eligibility on every state EA program.19
35
The conclusion that Congress in fact intended to treat EA and AFDC quite differently is fully consistent with its purposes in enacting the EA program. Unlike the basic AFDC program and the optional AFDC-UF extension, EA is not a comprehensive system of income maintenance, but rather a program designed to allow quick, ad hoc responses to immediate needs. Indeed one of the primary purposes of making EA available to persons not receiving or eligible for AFDC was to "encourag[e] the States to move quickly in family crises, supplying the family promptly with appropriate services," in the hope that this "would in many cases preclude the necessity for the family having to go on [AFDC] assistance on a more or less permanent basis." 113 Cong.Rec. 23054 (1967) (remarks of Cong. Mills). This purpose reflects not only an awareness of the distinct difference between AFDC and EA, but also an understanding that EA would not be surrounded with all of the trappings that § 402 requires of the ongoing AFDC cash-payments program. In short, EA was designed "to assure needed care for children, to focus maximum effort on self-support by families, and to provide more flexible and appropriate tools to accomplish these objectives." S.Rep.No.744, 90th Cong., 1st Sess., 165 (1967); U.S.Code Cong. & Admin.News 1967, p. 3002. (Emphasis supplied.) As a matter of historical fact, Congress has always left the States broad discretion in shaping the programs that, like EA, authorize assistance to persons not eligible for AFDC in the hope of preventing lasting welfare dependency. Und r the former § 406(d) family services program20 the States had "considerable latitude in providing services to nonwelfare recipients on the grounds that they [were] 'former or potential' recipients." S.Rep. No. 93-1356, p. 9 (1974), U.S.Code Cong. & Admin.News 1974, pp. 8133, 8141. And the declared purpose of the new Title XX social services program enacted in 1975, 42 U.S.C. § 1397 et seq. (1970 ed., Supp. V), was to "encourag[e] each State, as far as practicable under the conditions in that State, to furnish services directed at the goal of . . . achieving or maintaining economic self-support to prevent, reduce, or eliminate dependency . . . ." 42 U.S.C. § 1397 (1970 ed., Supp. V). (Emphasis supplied.) The legislative history of that statutory program reflects Congress' awareness that the very magnitude of its purpose would require that "the States . . . have the ultimate decision-making authority in fashioning their own social service programs within the limits of funding established by the Congress." S.Rep. No. 93-1356, supra, at 6, U.S.Code Cong. & Admin.News 1974, p. 8138.21
36
By the same token, the very breadth of the potential reach of EA—to virtually any family with needy children of a certain age that faces a risk of destitution—argues against the inference that Congress intended to require participating States to extend aid to all who were potentially eligible under § 406(e). A literal application of all of the § 406(e) standards, as required by the Court of Appeals' proposed order, would create an entirely open-ended program, not susceptible of meaningful fiscal or programmatic control by the States.
37
The Court of Appeals believed that under its interpretation of the Act Illinois would retain "substantial control" of its program through its ability to limit the amount of assistance actually paid:
38
"It will be able to choose the level of benefits that it will provide and to set the standard of need. It may reasonably limit the amounts paid out in emergency assistance, Dandridge v. Williams, 397 U.S. 471, 90 S.Ct. 1153, 25 L.Ed.2d 491, but it will not be able to declare ineligible those who come within the federal definition of eligibility in [§ 406(e)]. . . . This need not result in additional expense to the state but with existing appropriations should at least result in helping a broader number of persons, although more moderately than at present." Mandley I, 523 F.2d, at 422-423.
39
But this application of the distinction drawn in the AFDC cases between eligibility criteria and financial need standards, see supra, at 740, fundamentally misconceives the purpose of the EA program. A family that is facing destitution because its home has burned down is not helped at all by a "moderate" grant insufficient to see it through the crisis. As the Illinois Director of the Department of Public Aid stated in his report to the Legislative Advisory Committee on Public Aid, the decision in Mandley I created an untenable tension between fiscal and programmatic integrity in the EA system:
40
"But even if the Department could so limit [expenditures as suggested by the Court of Appeals] the results would be to divide a limited amount of Emergency Assistance money among a very expanded group of individuals, thus reducing the amount of assistance paid in each individual case to a meaninglessly small amount. The agency is thus faced with the prospect, if it continues the program, of potentially unlimited financial expenses, if it meets actual need in Emergency Assistance payments, or the payment of meaninglessly small amounts (and the possibility of legal challenge and subsequent mandatory order of additional financial payments)."
41
The intent of Congress in enacting EA thus would not be furthered by a statutory interpretation that requires a State to meet less than what it believes is the actual emergency need of an eligible family in order to retain financial control of its program. On the other hand, that intent will be effectuated by the natural reading we give to the relevant statutory provisions. Neither § 402(a)(10), which makes AFDC eligibility criteria mandatory, nor § 406(e), which defines the permissible scope of an EA program for purposes of federal funding, imposes mandatory eligibility standards on States that elect to participate in the EA program.
42
For the foregoing reasons the judgment of the Court of Appeals is reversed, and the case is remanded for further proceedings consistent with this opinion.22
43
It is so ordered.
44
Mr. Justice BLACKMUN took no part in the consideration or decision of these cases.
1
The AFDC program is established and defined in several related provisions of Title IV-A of the Social Security Act. Section 406(b) of the Act, as set forth in 42 U.S.C. § 606(b), provides in pertinent part: "The term 'aid to families with dependent children' means money payments with respect to, or . . . medical care in behalf of or any type of remedial care recognized under State law in behalf of a dependent child . . . ." The term "dependent child" is defined in § 406(a), 42 U.S.C. § 606(a), as
"a needy child (1) who has been deprived of parental support or care by reason of the death, continued absence from the home, or physical or mental incapacity of a parent, and who is living with [specified relatives] in a place of residence maintained by one or more of such relatives as his or their own home, and (2) who is (A) under the age of eighteen, or (B) under the age of twenty-one and (as determined by the State in accordance with standards prescribed by the Secretary) a student regularly attending a school . . . [or] course of vocational or technical training . . . ."
2
Section 406(e) of the Act, as set forth in 42 U.S.C. § 606(e), provides in pertinent part:
"(1) The term 'emergency assistance to needy families with children' means any of the following, furnished for a period not in excess of 30 days in any 12-month period, in the case of a needy child under the age of 21 who is . . . living with any of the relatives specified in subsection (a)(1) . . . but only where such child is without available resources, the payments, care, or services involved as necessary to avoid destitution of such child or to provide living arrangements in a home for such child, and such destitution . . . did not arise because such child or relative refused without good cause to accept employment or training for employment—
"(A) money payments, payments in kind, or such other payments as the State agency may specify . . . or medical care or any type of remedial care recognized under State law on behalf of, such child or any other member of the household in which he is living, and
"(B) such services as may be specified by the Secretary;
"but only with respect to a State whose State plan approved under section 602 of this title includes provision for such assistance.
"(2) Emergency assistance as authorized under paragraph (1) may be provided . . . to migrant workers with families in the State or in such part or parts thereof as the State shall designate."
3
The complaint also alleged that the Illinois program violated the Equal Protection Clause of the Fourteenth Amendment and the Illinois Public Aid Code.
While none of the defendants questioned the District Court's subject-matter jurisdiction, the Court of Appeals properly considered the question sua sponte. It held that the District Court had jurisdiction of claims against the state defendants under 28 U.S.C. § 1343 and 42 U.S.C. § 1983 since the plaintiffs' constitutional claims were not insubstantial. Mandley v. Trainor, 7 Cir., 523 F.2d 415, 419 n. 2 (Mandley I ).
It found the question of jurisdiction over the federal defendants more troublesome, ibid. We express no view as to the Court of Appeals' theory of jurisdiction in light of the intervening amendment of 28 U.S.C. § 1331, which, by eliminating the requirement of $10,000 in controversy in any action "against the United States, any agency thereof, or any officer or employee thereof in his official capacity," 28 U.S.C. § 1331(a) (1976 ed.), clearly confers jurisdiction over the federal defendants in these cases. Andrus v. Charlestone tone Products Co., 436 U.S. 604, 607-608, n. 6, 98 S.Ct. 2002, 2005, n. 6, 56 L.Ed.2d 570.
4
As stated in the order, any child:
"(i) who is under the age of 21,
"(ii) who is living with any of the relatives specified in § 406(a)(1) of the Act in a place of residence maintained by such relative as a home,
"(iii) where such child is without available resources,
"(iv) where emergency assistance is necessary to avoid destitution of or to provide living arrangements in a home for such child, and
"(v) such destitution did not arise because such child or relative refused without good cause to accept employment or training for employment."
5
The order would further require HEW to "file with the court proposed regulations governing emergency assistance, which proposed regulations shall be in accord with the opinion of the Court of Appeals, with this order and with 45 CFR § 233.10(a)(1)(ii)(A)."
The plaintiffs' originally proposed order would have specifically required that the regulations "include, inter alia, definitions of such terms as 'necessary to avoid destitution' and 'lack of available resources' which are compatible with providing emergency assistance when a needy child is approaching destitution." While the Court of Appeals thought "it would be salutary to include such definitions in the new regulation," it declined to "order HEW specifically to include any items in its new regulation." 545 F.2d at 1073.
6
The petitioners have not raised in this Court the claim that the validity of the proposed AFDC special-needs program was beyond the scope of the pleadings in this case.
7
We agree with the Court of Appeals that the cases were not rendered moot by Illinois' decision to withdraw from the § 406(e) program. For even if the proposed arrangement is entirely legal under §§ 402 and 403(a)(1), the State's decision to withdraw voluntarily from the § 406(e) program in no way mooted the Court of Appeals' prior determination that that program was being operated in violation of federal law. See United States v. W. T. Grant Co., 345 U.S. 629, 73 S.Ct. 894, 97 L.Ed. 1303.
By granting the defendants' motions to dismiss, as it was bound to do if the case was indeed moot, the District Court rendered the entire proceeding a nullity. There was no longer any judgment binding on the defendants to prevent them from returning to the old program. And, while the defendants' good-faith representation that they had no intention of doing so might properly have led the District Court to deny injunctive relief, see Hecht Co. v. Bowles, 321 U.S. 321, 64 S.Ct. 587, 88 L.Ed. 754, it could not operate to deprive the successful plaintiffs, and indeed the public, of a final and binding determination of the legality of the old practice. United States v. W. T. Grant Co., supra, 3 5 U.S., at 632, 73 S.Ct., at 897.
Since the Court of Appeals correctly concluded that the District Court had erred in dismissing the case as moot, the controversy was still alive as to the legality of both the old EA program and the proposed AFDC special-needs program. We note that, in a status report to the Illinois Advisory Committee on Public Aid, the State's Director of the Department of Public Aid stated that he intended to request that "HEW clarify its [§ 406(e)] Emergency Assistance Program [since] there are aspects of a [§ 406(e)] program that we
feel superior to a special need program and we would prefer, if so allowed, to maintain the [§ 406(e)] Emergency Assistance Program of the present scope." (This status report was filed in the District Court as Exhibit 1 to Plaintiffs' Answer to Defendants' Motions to Dismiss.) Thus while the Court of Appeals had already passed on the legality of the Illinois EA program in Mandley I, there was no jurisdictional bar to its directing entry of a judgment on remand from Mandley II resolving the entire dispute by enjoining the operation of both programs.
8
The record does not contain an actual proposal for the contemplated special-needs program, since Illinois had not at the time of the Court of Appeals' decision drafted or submitted such a plan to HEW for approval. The court assumed, and the parties agreed, that the program would parallel the old EA program: i. e., it would cover emergencies in AFDC families arising out of the actual or threatened loss of shelter due to damage or eviction and the immediate needs of presumptively eligible AFDC applicants.
9
"For the first time, the Federal Government will match money for emergency assistance. This has not been in the law before. For a period of 30 days, emergency assistance can be paid in cases where they cannot meet other qualifications." 113 Cong.Rec. 36319 (1967) (remarks of Sen. Curtis). (Emphasis supplied.) See also S.Rep.No.744, 90th Cong., 1st Sess., 166 (1967).
10
Even if their import were clearer, as an expression of Congress' understanding as to the scope of the pre-existing AFDC statute, such post hoc observations by a single member of Congress carry little if any weight. See Los Angeles Dept. of Water & Power v. Manhart, 435 U.S. 702, 714, 98 S.Ct. 1370, 1378, 55 L.Ed.2d 657.
11
The States have a "great deal of discretion" in setting the standard of need, and "some States include in their 'standard of need' items that others do not take into account." Rosado v. Wyman, 397 U.S. 397, 408, 90 S.Ct. 1207, 1215, 1216, 25 L.Ed.2d 442.
12
U.S. Dept. of HEW, Handbook of Public Assistance Administration, Part IV, § 3131(3) (1966). Current regulations provide that "[i]f the State agency includes special need items in its standard [the state plan must] (a ) describe those that will be recognized, and the circumstances under which they will be included, and (b ) provide that they will be considered in the need determination for all applicants and recipients requiring them." 45 CFR § 233.20(a)(2)(v) (1977).
13
Illinois and Minnesota. AFDC Survey 59, 100.
14
Arizona, Connecticut, Guam, Iowa, Kansas, Minnesota, New Hampshire, and South Dakota. Id., at 11, 27, 46, 69, 73, 100, 125, 179.
15
California's plan provided for "replacement of clothing and certain household items because of sudden or unusual circumstances beyond [the] control of [the] family." Id., at 19. Connecticut, North Dakota, and Rhode Island covered needs arising out of "catastrophic" events as special circumstance items. Id., at 27, 147, 171.
16
The original plan actually invalidated in Mandley I narrowed EA eligibility by limiting it to persons also eligible (or presumptively eligible) for AFDC, and by recognizing as circumstances of emergency need only an AFDC recipient's loss of shelter due to damage or eviction, and an AFDC applicant's immediate need for household effects. Other States, however, have imposed different kinds of restrictions on EA eligibility. Some, for example, exclude AFDC recipients if the emergency need is one theoretically covered by the basic assistance grant, reasoning that the State should not pay double benefits when recipients have failed to budget their resources properly. See generally Note, Meeting Short-Term Needs of Poor Families: Emergency Assistance for Needy Families with Children, 60 Cornell L.Rev. 879, 888-892 (1975).
The injunction ordered by the Court of Appeals in Mandley II apparently reaches all such limitations. It requires Illinois, so long as it receives any funds under Title IV-A and operates an emergency aid program, to provide assistance to all persons who fit the federal description of eligible individuals, and it prohibits HEW from "approving state plans for emergency assistance which limit eligibility more narrowly than § 406(e)."
17
By controlling these two elements, which determine actual payments under the program, every State retains the ability to control its total AFDC expenditures. Cf. Jefferson v. Hackney, 406 U.S., at 539-541, 92 S.Ct., at 1727-1729.
18
By contrast, the other optional Title IV-A program, AFDC-UF, is defined by reference to the key statutory term "dependent child." § 407(a), 42 U.S.C. § 607(a). This indicates that when Congress intended that a separate program should be treated "in the same way" as AFDC, it was able to express that intent clearly by actually incorporating the identical terms.
19
The Court of Appeals thought that "the problem of setting workable definitions for the somewhat amorphous eligibility criteria in [§ 406(e) could] be addressed by HEW rule-making," Mandley I, 523 F.2d, at 422-423, and indeed required such rulemaking in its Mandley II order. See n. 5, supra. The statute does not, however, require the Secretary to promulgate implementing regulations to clarify the scope of § 406(e). Compare § 406(e) with § 407(a) (AFDC-UF). Cf. Batterton v. Francis, 432 U.S. 416, 97 S.Ct. 2399, 53 L.Ed.2d 448. And the regulations in fact adopted by the Secretary interpret the statute as leaving the States with broad discretion as to EA eligibility requirements. 45 CFR § 233.120 (1977). The Secretary's contemporaneous interpretation of the statute is entitled to considerable deference. New York Dept. of Social Services v. Dublino, 413 U.S. 405, 421, 93 S.Ct. 2507, 2516, 37 L.Ed.2d 688. In the absence of an express delegation of authority to the Secretary, there is simply no basis for assuming that Congress intended that he, rather than the States, must make definite—and mandatory—the generalized standards of eligibility it wrote into the EA statute. Cf. n. 21, infra.
20
Section 406(d) of the Act, as set forth in 42 U.S.C. § 606(d), defined "family services" as "services to a family or any member thereof for the purpose of preserving, rehabilitating, reuniting, or strengthening the family, and such other services as will assist members of a family to attain or retain capability for the maximum self-support and personal independence." Section 406(d) has been repealed and replaced by the new Title XX Social Services program. Pub.L. 93-647, §§ 2, 3(a)(5), 88 Stat. 2337, 2348. See 42 U.S.C. § 1397 et seq. (1970 ed., Supp. V).
21
This conclusion was based on the "lengthy history of legislative and regulatory action in the social service area [which] made it clear . . . that the Department of Health, Education, and Welfare can neither mandate meaningful programs nor impose effective controls upon the States." S.Rep. No. 93-1356, at 6, U.S.Code Cong. & Admin.News 1974, p. 8138.
22
The Court of Appeals did not reach the respondents' constitutional and state-law claims, see n. 3, supra. They remain open for consideration on remand.
| 12
|
436 U.S. 658
98 S.Ct. 2018
56 L.Ed.2d 611
Jane MONELL et al., Petitioners,v.DEPARTMENT OF SOCIAL SERVICES OF the CITY OF NEW YORK et al.
No. 75-1914.
Argued Nov. 2, 1977.
Decided June 6, 1978.
Syllabus
Petitioners, female employees of the Department of Social Services and the Board of Education of the City of New York, brought this class action against the Department and its Commissioner, the Board and its Chancellor, and the city of New York and its Mayor under 42 U.S.C. § 1983, which provides that every "person" who, under color of any statute, ordinance, regulation, custom, or usage of any State subjects, or "causes to be subjected," any person to the deprivation of any federally protected rights, privileges, or immunities shall be civilly liable to the injured party. In each case, the individual defendants were sued solely in their official capacities. The gravamen of the complaint was that the Board and the Department had as a matter of official policy compelled pregnant employees to take unpaid leaves of absence before such leaves were required for medical reasons. The District Court found that petitioners' constitutional rights had been violated, but held that petitioners' claims for injunctive relief were mooted by a supervening change in the official maternity leave policy. That court further held that Monroe v. Pape, 365 U.S. 167, 81 S.Ct. 473, 5 L.Ed.2d 492, barred recovery of back pay from the Department, the Board, and the city. In addition, to avoid circumvention of the immunity conferred by Monroe, the District Court held that natural persons sued in their official capacities as officers of a local government also enjoy the immunity conferred on local governments by that decision. The Court of Appeals affirmed on a similar theory. Held :
1. In Monroe v. Pape, supra, after examining the legislative history of the Civil Rights Act of 1871, now codified as 42 U.S.C. § 1983, and particularly the rejection of the so-called Sherman amendmen , the Court held that Congress in 1871 doubted its constitutional authority to impose civil liability on municipalities and therefore could not have intended to include municipal bodies within the class of "persons" subject to the Act. Re-examination of this legislative history compels the conclusion that Congress in 1871 would not have thought § 1983 constitutionally infirm if it applied to local governments. In addition, that history confirms that local governments were intended to be included among the "persons" to which § 1983 applies. Accordingly, Monroe v. Pape is overruled insofar as it holds that local governments are wholly immune from suit under § 1983. Pp. 664-689.
2. Local governing bodies (and local officials sued in their official capacities) can, therefore, be sued directly under § 1983 for monetary, declaratory, and injunctive relief in those situations where, as here, the action that is alleged to be unconstitutional implements or executes a policy statement, ordinance, regulation, or decision officially adopted or promulgated by those whose edicts or acts may fairly be said to represent official policy. In addition, local governments, like every other § 1983 "person," may be sued for constitutional deprivations visited pursuant to governmental "custom" even though such custom has not received formal approval through the government's official decision-making channels. Pp. 690-691.
3. On the other hand, the language and legislative history of § 1983 compel the conclusion that Congress did not intend a local government to be held liable solely because it employs a tort-feasor—in other words, a local government cannot be held liable under § 1983 on a respondeat superior theory. Pp. 691-695.
4. Considerations of stare decisis do not counsel against overruling Monroe v. Pape insofar as it is inconsistent with this opinion. Pp. 695-701.
(a) Monroe v. Pape departed from prior practice insofar as it completely immunized municipalities from suit under § 1983. Moreover, since the reasoning of Monroe does not allow a distinction to be drawn between municipalities and school boards, this Court's many cases holding school boards liable in § 1983 actions are inconsistent with Monroe, especially as the principle of that case was extended to suits for injunctive relief in City of Kenosha v. Bruno, 412 U.S. 507, 93 S.Ct. 2222, 37 L.Ed.2d 109. Pp. 695-696.
(b) Similarly, extending absolute immunity to school boards would be inconsistent with several instances in which Congress has refused to immunize school boards from federal jurisdiction under § 1983. Pp. 696-699.
(c) In addition, municipalities cannot have arranged their affairs on an assumption that they can violate constitutional rights for an indefinite period; accordingly, municipalities have no reliance interest that would support an absolute immunity. Pp. 699-700.
(d) Finally, it appears beyond doubt from the legislative history of the Civil Rights Act of 1871 that Monroe misapprehended the meaning of the Act. Were § 1983 unconstitutional as to local governments, it would have been equally unconstitutional as to state or local officers, yet the 1871 Congress clearly intended § 1983 to apply to such officers and all agreed that such officers could constitutionally be subjected to liability under § 1983. The Act also unquestionably was intended to provide a remedy, to be broadly construed, against all forms of official violation of federally protected rights. Therefore, without a clear statement in the legislative history, which is not present, there is no justification for excluding municipalities from the "persons" covered by § 1983. Pp. 700-701.
5. Local governments sued under § 1983 cannot be entitled to an absolute immunity, lest today's decision "be drained of meaning," Scheuer v. Rhodes, 416 U.S. 232, 248, 94 S.Ct. 1683, 1692, 40 L.Ed.2d 90. P. 701.
532 F.2d 259, reversed.
scar G. Chase, Brooklyn, N. Y., for petitioners.
L. Kevin Sheridan, New York City, for respondents.
Mr. Justice BRENNAN delivered the opinion of the Court.
1
Petitioners, a class of female employees of the Department of Social Services and of the Board of Education of the city of New York, commenced this action under 42 U.S.C. § 1983 in July 1971.1 The gravamen of the complaint was that the Board and the Department had as a matter of official policy compelled pregnant employees to take unpaid leaves of absence before such leaves were required for medical reasons.2 Cf. Cleveland Board of Education v. LaFleur, 414 U.S. 632, 94 S.Ct. 791, 39 L.Ed.2d 52 (1974). The suit sought injunctive relief and backpay for periods of unlawful forced leave. Named as defendants in the action were the Department and its Commissioner, the Board and its Chancellor, and the city of New York and its Mayor. In each case, the individual defendants were sued solely in their official capacities.3
2
On cross-motions for summary judgment, the District Court for the Southern District of New York held moot petitioners' claims for injunctive and declaratory relief since the City of New York and the Board, after the filing of the complaint, had changed their policies relating to maternity leaves so that no pregnant employee would have to take leave unless she was medically unable to continue to perform her job. 394 F.Supp. 853, 855 (1975). No one now challenges this conclusion. The court did conclude, however, that the acts complained of were unconstitutional under LaFleur, supra. 394 F.Supp., at 855. Nonetheless plaintiffs' prayers for backpay were denied because any such damages would come ultimately from the City of New York and, therefore, to hold otherwise would be to "circumven[t]" the immunity conferred on municipalities by Monroe v. Pape, 365 U.S. 167, 81 S.Ct. 473, 5 L.Ed.2d 492 (1961). See 394 F.Supp., at 855.
3
On appeal, petitioners renewed their arguments that the Board of Education4 was not a "municipality" within the meaning of Monroe v. Pape, supra, and that, in any event, the District Court had erred in barring a damages award against the individual defendants. The Court of Appeals for the Second Circuit rejected both contentions. The court first held that the Board of Education was not a "person" under § 1983 because "it performs a vital gov rnmental function . . . , and, significantly, while it has the right to determine how the funds appropriated to it shall be spent . . . , it has no final say in deciding what its appropriations shall be." 532 F.2d 259, 263 (1976). The individual defendants, however, were "persons" under § 1983, even when sued solely in their official capacities. 532 F.2d, at 264. Yet, because a damages award would "have to be paid by a city that was held not to be amenable to such an action in Monroe v. Pape," a damages action against officials sued in their official capacities could not proceed. Id., at 265.
4
We granted certiorari in this case, 429 U.S. 1071, 97 S.Ct. 807, 50 L.Ed.2d 789, to consider
5
"Whether local governmental officials and/or local independent school boards are 'persons' within the meaning of 42 U.S.C. § 1983 when equitable relief in the nature of back pay is sought against them in their official capacities?" Pet. for Cert. 8.
6
Although, after plenary consideration, we have decided the merits of over a score of cases brought under § 1983 in which the principal defendant was a school board5—and, indeed, in some of which § 1983 and its jurisdictional counterpart, 28 U.S.C. § 1343, provided the only basis for jurisdiction6—we indicated in Mt. Healthy City Board of Education v. Doyle, 429 U.S. 274, 279, 97 S.Ct. 568, 573, 50 L.Ed.2d 471 (1977), last Term that the question presented here was open and would be decided "another day." That other day has come and we now overrule Monroe v. Pape, supra, insofar as it holds that local governments are wholly immune from suit under § 1983.7
7
* In Monroe v. Pape, we held that "Congress did not undertake to bring municipal corporations within the ambit of [§ 1983]." 365 U.S., at 187, 81 S.Ct. at 484. The sole basis for this conclusion was an inference drawn from Congress' rejection of the "Sherman amendment" to the bill which became the Civil Rights Act of 1871, 17 Stat. 13, the precursor of § 1983. The Amendment would have held a municipal corporation liable for damage done to the person or property of its inhabitants by private persons "riotously and tumultuously assembled."8 Cong. Globe, 42d Cong., 1st Sess., 749 (1871) (hereinafter Globe). Although the Sherman amendment did not seek to amend § 1 of the Act, which is now § 1983, and although the nature of the obligation created by that amendment was vastly different from that created by § 1, the Court nonetheless concluded in Monroe that Congress must have meant to exclude municipal corporations from the coverage of § 1 because " 'the House [in voting against the Sherman amendment] had solemnly decided that in their judgment Congress had no constitutional power to impose any obligation upon county and town organizations, the mere instrumentality for the administration of state law.' " 365 U.S., at 190, 81 S.Ct. at 485 (emphasis added), quoting Globe 804 (Rep. Poland). This statement, we thought, showed that Congress doubted its "constitutional power . . . to impose civil liability on municipalities," 365 U.S., at 190, 81 S.Ct. at 486 (emphasis added), and that such doubt would have extended to any type of civil liability.9
8
A fresh analysis of the debate on the Civil Rights Act of 1871, and particularly of the case law which each side mustered in its support, shows, however, that Monroe incorrectly equated the "obligation" of which Representative Poland spoke with "civil liability."
A. An Overview
9
There are three distinct stages in the legislative consideration of the bill which became the Civil Rights Act of 1871. On March 28, 1871, Representative Shellabarger, acting for a House select committee, reported H.R. 320, a bill "to enforce the provisions of the fourteenth amendment to the Constitution of the United States, and for other purposes." H.R. 320 contained four sections. Section 1, now codified as 42 U.S.C. § 1983, was the subject of only limited debate and was passed without amendment.10 Sections 2 through 4 dealt primarily with the "other purpose" of suppressing Ku Klux Klan violence in the Southern States.11 The wisdom and constitutionality of these sections—not § 1, now § 1983—were the subject of almost all congressional debate and each of these sections was amended. The House finished its initial debates on H.R. 320 on April 7, 1871, and one week later the Senate also voted out a bill.12 Again, debate on § 1 of the bill was limited and that section was passed as introduced.
10
Immediately prior to the vote on H.R. 320 in the Senate, Senator Sherman introduced his amendment.13 This was not an amendment to § 1 of the bill, but was to be added as § 7 at the end of the bill. Under the Senate rules, no discussion of the amendment was allowed and, although attempts were made to amend the amendment, it was passed as introduced. In this form, the amendment did not place liability on municipal corporations, but made any inhabitant of a municipality liable for damage inflicted by persons "riotously and tumultuously assembled."14
11
The House refused to acquiesce in a number of amendments made by the Senate, including the Sherman amendment, and the respective versions of H.R. 320 were therefore sent to a conference committee. Section 1 of the bill, however, was not a subject of this conference since, as noted, it was passed verbatim as introduced in both Houses of Congress.
12
On April 18, 1871, the first conference committee completed its work on H.R. 320. The main features of the conference committee draft of the Sherman amendment were these:15 First, a cause of action was given to persons injured by
13
"any persons riotously and tumultuously assembled together . . . with intent to deprive any person of any right conferred upon him by the Constitution and laws of the United States, or to deter him or punish him for exercising such right, or by reason of his race, color, or previous condition of servitude . . . ." Second, the bill provided that the action would be against the county, city, or parish in which the riot had occurred and that it could be maintained by either the person injured or his legal representative. Third, unlike the amendment as proposed, the conference substitute made the government defendant liable on the judgment if it was not satisfied against individual defendants who had committed the violence. If a municipality were liable, the judgment against it could be collected
14
"by execution, attachment, mandamus, garnishment, or any other proceeding in aid of execution or applicable to the enforcement of judgments against municipal corporations; and such judgment [would become] a lien as well upon all moneys in the treasury of such county, city, or parish, as upon the other property thereof."
15
In the ensuing debate on the first conference report, which was the first debate of any kind on the Sherman amendmen , Senator Sherman explained that the purpose of his amendment was to enlist the aid of persons of property in the enforcement of the civil rights laws by making their property "responsible" for Ku Klux Klan damage.16 Statutes drafted on a similar theory, he stated, had long been in force in England and were in force in 1871 in a number of States.17 Nonetheless there were critical differences between the conference substitute and extant state and English statutes: The conference substitute, unlike most state riot statutes, lacked a short statute of limitations and imposed liability on the government defendant whether or not it had notice of the impending riot, whether or not the municipality was authorized to exercise a police power, whether or not it exerted all reasonable efforts to stop the riot, and whether or not the rioters were caught and punished.18
16
The first conference substitute passed the Senate but was rejected by the House. House opponents, within whose ranks were some who had supported § 1, thought the Federal Government could not, consistent with the Constitution, obligate municipal corporations to keep the peace if those corporations were neither so obligated nor so authorized by their state charters. And, because of this constitutional objection, opponents of the Sherman amendment were unwilling to impose damages liability for nonperformance of a duty which Congress could not require municipalities to perform. This position is reflected in Representative Poland's statement that is quoted in Monroe.19
17
Because the House rejected the first conference report a second conference was called and it duly issued its report. The second conference substitute for the Sherman amendment abandoned municipal liability and, instead, made "any person or persons having knowledge [that a conspiracy to violate civil rights was afoot], and having power to prevent or aid in preventing the same," who did not attempt to stop the same, liable to any person injured by the conspiracy.20 The amendment in this form was adopted by both Houses of Congress and is not codified as 42 U.S.C. § 1986.
18
The meaning of the legislative history sketched above can most readily be developed by first considering the debate on the report of the first conference committee. This debate shows conclusively that the constitutional objections raised against the Sherman amendment—on which our holding in Monroe was based, see supra, at 664—would not have prohibited congressional creation of a civil remedy against state municipal corporations that infringed federal rights. Because § 1 of the Civil Rights Act does not state expressly that municipal corporations come within its ambit, it is finally necessary to interpret § 1 to confirm that such corporations were indeed intended to be included within the "persons" to whom that section applies.
B. Debate on the First Conference Report
19
The style of argument adopted by both proponents and opponents of the Sherman amendment in both Houses of Congress was largely legal, with frequent references to cases decided by this Court and the Supreme Courts of the several States. Proponents of the Sherman amendment did not, however, discuss in detail the argument in favor of its constitutionality. Nonetheless, it is possible to piece together such an argument from the debates on the first conference report and those on § 2 of the civil rights bill, which, because it allowed the Federal Government to prosecute crimes "in the States," had also raised questions of federal power. The account of Representative Shellabarger, the House sponsor of H.R. 320, is the most complete.
20
Shellabarger began his discussion of H.R. 320 by stating that "there is a domain of constitutional law involved in the right consideration of this measure which is wholly unexplored." Globe, App. 67. There were analogies, however. With respect to the meaning of § 1 of the Fourteenth Amendment, and particularly its Privileges or Immunities Clause, Shellabarger relied on the statement of Mr. Justice Washington in Corfield v. Coryell, 3 F.Cas. 230, 4 Wash.C.C. 371 (CC ED Pa.1825), which defined the privileges protected by Art. IV:
21
" 'What these fundamental privileges are[,] it would perhaps be more tedious than difficult to enumerate. They may, however, be all comprehended under the following general heads: protection by the Government;'—
22
"Mark that—
23
" 'protection by the Government; the enjoyment of life and liberty, with the right to acquire and possess property of every kind, and to pursue and obtain happiness and safety . . . .' " Globe App. 69 (emphasis added), quoting 4 Wash.C.C., at 380-381.
24
Building on his conclusion that citizens were owed protection a conclusion not disputed by opponents of the Sherman amendment21 Shellabarger then considered Congress' role in providing that protection. Here again there were precedents:
25
"[Congress has always] assumed to enforce, as against the States, and also persons, every one of the provisions f the Constitution. Most of the provisions of the Constitution which restrain and directly relate to the States, such as those in [Art. I, § 10,] relate to the divisions of the political powers of the State and General Governments. . . . These prohibitions upon political powers of the States are all of such nature that they can be, and even have been, . . . enforced by the courts of the United States declaring void all State acts of encroachment on Federal powers. Thus, and thus sufficiently, has the United States 'enforced' these provisions of the Constitution. But there are some that are not of this class. These are where the court secures the rights or the liabilities of persons within the States, as between such persons and the States.
26
"These three are: first, that as to fugitives from justice;[22] second, that as to fugitives from service, (or slaves;)[23] third, that declaring that the 'citizens of each State shall be entitled to all the privileges and immunities of citizens in the several States.'[24]
27
"And, sir, every one of these—the only provisions where it was deemed that legislation was required to enforce the constitutional provisions—the only three where the rights or liabilities of persons in the States, as between these persons and the States, are directly provided for, Congress has by legislation affirmatively interfered to protect . . . such persons." Globe App. 69-70.
28
Of legislation mentioned by Shellabarger, the closest analog of the Sherman amendment, ironically, was the statute implementing the fugitives from justice and fugitive slave provisions of Art. IV—the Act of Feb. 12, 1793, 1 Stat. 302—the constitutionality of which had been sustained in 1842, in Prigg v. Pennsylvania, 16 Pet. 539, 10 L.Ed. 1060. There, Mr. Justice Story, writing for the Court, held that Art. IV gave slaveowners a federal right to the unhindered possession of their slaves in whatever State such slaves might be found. 16 Pet., at 612. Because state process for recovering runaway slaves might be inadequate or even hostile to the rights of the slaveowner, the right intended to be conferred could be negated if left to state implementation. Id., at 614. Thus, since the Constitution guaranteed the right and this in turn required a remedy, Story held it to be a "natural inference" that Congress had the power itself to ensure an appropriate (in the Necessary and Proper Clause sense) remedy for the right. Id., at 615.
29
Building on Prigg, Shellabarger argued that a remedy against municipalities and counties was an appropriate—and hence constitutional—method for ensuring the protection which the Fourteenth Amendment made every citizen's federal right.25 This much was clear from the adoption of such statutes by the several States as devices for suppressing riot.26 Thus, said Shellabarger, the only serious question remaining was "whether, since a county is an integer or part of a State, the United States can impose upon it, as such, any obligations to keep the peace in obedience to United States laws."27 This he answered affirmatively, citing Board of Comm'rs v. Aspinwall, 24 How. 376, 16 L.Ed. 735 (1861), the first of many cases28 upholding the power of federal courts to e force the Contract Clause against municipalities.29
30
House opponents of the Sherman amendment—whose views are particularly important since only the House voted down the amendment—did not dispute Shellabarger's claim that the Fourteenth Amendment created a federal right to protection, see n. 21, supra, but they argued that the local units of government upon which the amendment fastened liability were not obligated to keep the peace at state law and further that the Federal Government could not constitutionally require local governments to create police forces, whether this requirement was levied directly, or indirectly by imposing damages for breach of the peace on municipalities. The most complete statement of this position is that of Representative Blair:30
31
"The proposition known as the Sherman amendment . . . is entirely new. It is altogether without a precedent in this country. . . . That amendment claims the power in the General Government to go into the States of this Union and lay such obligations as it may please upon the municipalities, which are the creations of the States alone. . . .
32
". . . [H]ere it is proposed, not to carry into effect an obligation which rests upon the municipality, but to create that obligation, and that is the provision I am unable to assent to. The parallel of the hundred does not in the least meet the case. The power that laid the obligation upon the hundred first put the duty upon the hundred that it should perform in that regard, and failing to meet the obligation which had been laid upon it, it was very proper that it should suffer damage for its neglect. . . .
33
". . . [T]here are certain rights and duties that belong to the States, . . . there are certain powers that inhere in the State governments. They create these municipalities, they say what their powers shall be and what their obligations shall be. If the Government of the United States can step in and add to those obligations, may it not utterly destroy the municipality? If it can say that it shall be liable for damages occurring from a riot, . . . where [will] its power . . . stop and what obligations . . . might [it] not lay upon a municipality. . . .
34
"Now, only the other day, the Supreme Court . . . decided [in Collector v. Day, 11 Wall. 113, 20 L.Ed. 122 (1871)] that there is no power in the Government of the United States, under its authority to tax, to tax the salary of a State officer. Why? Simply because the power to tax involves the power to destroy, and it was not the intent to give the Government of the United States power to destroy the government of the States in any respect. It was held also in the case of Prigg v. Pennsylvania, 16 Pet. 539, 10 L.Ed. 1060 (1842) that it is not within the power of the Congress of the United States to lay duties upon a State officer; that we cannot command a State officer to do any duty whatever, as such; and I ask . . . the difference between that and commanding a municipality, which is equally the creature of the State, to perform a duty." Globe 795.
35
Any attempt to impute a unitary constitutional theory to opponents of the Sherman amendment is, of course, fraught with difficulties, not the least of which is that most Members of Congress did not speak to the issue of the constitutionality of the amendment. Nonetheless, two considerations lead us to conclude that opponents of the Sherman amendment found it unconstitutional substantially because of the reasons stated by Representative Blair: First, Blair's analysis is precisely that of Poland, whose views were quoted as authoritative in Monroe, see supra, at 664, and that analysis was shared in large part by all House opponents who addressed the constitutionality of the Sherman amendment.31 Second, Blair's exegesis of the reigning constitutional theory of his day, as we shall explain, was clearly supported by precedent—albeit precedent that has not survived, see Ex parte Virginia, 100 U.S. 339, 347-348, 25 L.Ed. 676 (1880); Graves . New York ex rel. O'Keefe, 306 U.S. 466, 486, 59 S.Ct. 595, 83 L.Ed. 927 (1939)—and no other constitutional formula was advanced by participants in the House debates.
36
Collector v. Day, cited by Blair, was the clearest and, at the time of the debates, the most recent pronouncement of a doctrine of coordinate sovereignty that, as Blair stated, placed limits on even the enumerated powers of the National Government in favor of protecting state prerogatives. There, the Court held that the United States could not tax the income of Day, a Massachusetts state judge, because the independence of the States within their legitimate spheres would be imperiled if the instrumentalities through which States executed their powers were "subject to the control of another and distinct government." 11 Wall., at 127. Although the Court in Day apparently rested this holding in part on the proposition that the taxing "power acknowledges no limits but the will of the legislative body imposing the tax," id., at 125-126; cf. McCulloch v. Maryland, 17 U.S. 316, 4 Wheat. 316, 4 L.Ed. 579 (1819), the Court had in other cases limited other national powers in order to avoid interference with the States.32
37
In Prigg v. Pennsylvania, for example, Mr. Justice Story, in addition to confirming a broad national power to legislate under the Fugitive Slave Clause, see supra, at 672, held that Congress could not "insist that states . . . provide means to carry into effect the duties of the national government." 16 Pet., at 615-616.33 And Mr. Justice McLean agreed that, "[a]s a general principle," it was true "that Congress had no power to impose duties on state officers, as provided in the [Act of Feb. 12, 1793]." Nonetheless he wondered whether Congress might not impose "positive" duties on state officers where a clause of the Constitution, like the Fugitive Slave Clause, seemed to require affirmative government assistance, rather than restraint of government, to secure federal rights. See id., at 664-665.
38
Had Mr. Justice McLean been correct in his suggestion that, where the Constitution envisioned affirmative government assistance, the States or their officers or instrumentalities could be required to provide it, there would have been little doubt that Congress could have insisted that municipalities afford by "positive" action the protection34 owed individuals under § 1 of the Fourteenth Amendment whether or not municipalities were obligated by state law to keep the peace. However, any such argument, largely foreclosed by Prigg, was made impossible by the Court's holding in Kentucky v. Dennison, 24 How. 66, 16 L.Ed. 717 (1861). There, the Court was asked to require Dennison, the Governor of Ohio, to hand over Lago, a fugitive from justice wanted in Kentucky, as required by § 1 of the Act of Feb. 12, 1793,35 which implemented Art. IV, § 2, cl. 2, of the Constitution. Mr. Chief Justice Taney, writing for a unanimous Court, refused to enforce that section of the Act:
39
"[W]e think it clear, that the Federal Government, under the Constitution, has no power to impose on a State officer, as such, any duty whatever, and compel him to perform it; for if it possessed this power, it might overload the officer with duties which would fill up all his time, and disable him from performing his obligations to the State, and might impose on him duties of a character incompatible with the rank and dignity to which he was elevated by the State." 24 How., at 107-108.
40
The rationale of Dennison —that the Nation could not impose duties on state officers since that might impede States in their legitimate activities—is obviously identical to that which animated the decision in Collector v. Day. See supra, at 676. And, as Blair indicated, municipalities as instrumentalities through which States executed their policies could be equally disabled from carrying out state policies if they were also obligated to carry out federally imposed duties. Although no one cited Dennison by name, the principle for which it stands was well known to Members of Congress,36 many of whom discussed Day37 as well as a series of State Supreme Court cases38 in the mid-1860's which had invalidated a federal tax on the process of state courts on the ground that the tax threatened the independence of a vital state function.39 Thus, there was ample support for Blair's view that the Sherman amendment, by putting municipalities to the Hobson's choice of keeping the peace or paying civil damages, attempted to impose obligations on municipalities by indirection that could not be imposed directly, thereby threatening to "destroy the government of the States." Globe 795.
41
If municipal liability under § 1 of the Civil Rights Act of 1871 created a similar Hobson's choice, we might conclude, as Monroe did, that Congress could not have intended municipalities to be among the "persons" to which that section applied. But this is not the case.
42
First, opponents expressly distinguished between imposing an obligation to keep the peace and merely imposing civil liability for damages on a municipality that was obligated by state law to keep the peace, but which had not in violation of the Fourteenth Amendment. Representative Poland, for example, reasoning from Contract Clause precedents, indicated that Congress could constitutionally confer jurisdictio on the federal courts to entertain suits seeking to hold municipalities liable for using their authorized powers in violation of the Constitution—which is as far as § 1 of the Civil Rights Act went:
43
"I presume . . . that where a State had imposed a duty [to keep the peace] upon [a] municipality . . . an action would be allowed to be maintained against them in the courts of the United States under the ordinary restrictions as to jurisdiction. But the enforcing a liability, existing by their own contract, or by a State law, in the courts, is a very widely different thing from devolving a new duty or liability upon them by the national Government, which has no power either to create or destroy them, and no power or control over them whatever." Globe 794.
Representative Burchard agreed:
44
"[T]here is no duty imposed by the Constitution of the United States, or usually by State laws, upon a county to protect the people of that county against the commission of the offenses herein enumerated, such as the burning of buildings or any other injury to property or injury to person. Police powers are not conferred upon counties as corporations; they are conferred upon cities that have qualified legislative power. And so far as cities are concerned, where the equal protection required to be afforded by a State is imposed upon a city by State laws, perhaps the United States courts could enforce its performance. But counties . . . do not have any control of the police . . . ." Id., at 795.
45
See also the views of Rep. Willard, discussed at n.30, supra.
46
Second, the doctrine of dual sovereignty apparently put no limit on the power of federal courts to enforce the Constitution against municipalities that violated it. Under the theory of dual sovereignty set out in Prigg, this is quite understandable. So long as federal courts were vindicating the Federal Constitution, they were providing the "positive" government action required to protect federal constitutional rights and no question was raised of enlisting the States in "positive" action. The limits of the principles announced in Dennison and Day are not so well defined in logic, but are clear as a matter of history. It must be remembered that the same Court which rendered Day also vigorously enforced the Contract Clause against municipalities—an enforcement effort which included various forms of "positive" relief, such as ordering that taxes be levied and collected to discharge federal-court judgments, once a constitutional infraction was found.40 Thus, federal judicial enforcement of the Constitution's express limits on state power, since it was done so frequently, must, notwithstanding anything said in Dennison or Day, have been permissible, at least so long as the interpretation of the Constitution was left in the hands of the judiciary. Since § 1 of the Civil Rights Act simply conferred jurisdiction on the federal courts to enforce § 1 of the Fourteenth Amendment—a situation precisely analogous to the grant of diversity jurisdiction under which the Contract Clause was enforced against municipalitiess is no reason to suppose that opponents of the Sherman amendment would have found any constitutional barrier to § 1 suits against municipalities.
47
Finally, the very votes of those Members of Congress, who opposed the Sherman amendment but who had voted for § 1, confirm that the liability imposed by § 1 was something very different from that imposed by the amendment. Section 1 without question could be used to obtain a damages judgment against state or municipal officials who violated federal constitutional rights while acting under color of law.41 However, for Prigg-Dennison-Day purposes, as Blair and others recognized,42 there was no distinction of constitutional magnitude between officers and agents—including corporate agents—of the State: Both were state instrumentalities and the State could be impeded no matter over which sort of instrumentality the Federal Government sought to assert its power. Dennison and Day, after all, were not suits against municipalities but against officers, and Blair was quite conscious that he was extending these cases by applying them to municipal corporations.43 Nonetheless, Senator Thurman, who gave the most exhaustive critique of § 1—inter alia, complaining that it would be applied to state officers, see Globe App. 217—and who opposed both § 1 and the Sherman amendment, the latter onPrigg grounds, agreed unequivocally that § 1 was constitutional.44 Those who voted for § 1 must similarly have believed in its constitutionality despite Prigg, Dennison, and Day.
C. Debate on § 1 of the Civil Rights Bill
48
From the foregoing discussion, it is readily apparent that nothing said in debate on the Sherman amendment would have prevented holding a municipality liable under § 1 of the Civil Rights Act for its own violations of the Fourteenth Amendment. The question remains, however, whether the general language describing those to be liable under § 1—"any person"—covers more than natural persons. An examination of the debate on § 1 and application of appropriate rules of construction show unequivocally that § 1 was intended to cover legal as well as natural persons.
49
Representative Shellabarger was the first to explain the function of § 1:
50
"[Section 1] not only provides a civil remedy for persons whose former condition may have been that of slaves, but also to all people where, under color of State law, they or any of them may be deprived of rights to which they are entitled under the Constitution by reason and virtue of their national citizenship." Globe App. 68.
51
By extending a remedy to all people, including whites, § 1 went beyond the mischief to which the remaining sections of the 1871 Act were addressed. Representative Shellabarger also stated without reservation that the constitutionality of § 2 of the Civil Rights Act of 1866 controlled the constitutionality of § 1 of the 1871 Act, and that the former had been approved by "the supreme courts of at least three States of this Union" and by Mr. Justice Swayne, sitting on circuit, who had concluded: " 'We have no doubt of the constitutionality of every provision of this act.' " Globe App. 68. Representative Shellabarger then went on to describe how the courts would and should interpret § 1:
52
"This act is remedial, and in aid of the preservation of human liberty and human rights. All statutes and constitutional provisions authorizing such statutes are liberally and beneficently construed. It would be most strange and, in civilized law, monstrous were this not the rule of interpretation. As has been again and again decided by your own Supreme Court of the United States, and everywhere else where there is wise judicial interpretation, the largest latitude consistent with the words employed is uniformly given in construing such statutes and constitutional provisions as are meant to protect and defend and give remedies for their wrongs to all the people. . . . Chief Justice Jay and also Story say:
53
" 'Where a power is remedial in its nature there is much reason to contend that it ought to be construed liberally, and it is generally adopted in the interpretation of laws.'—1 Story on Constitution, sec. 429." Globe App., at 68.
54
The sentiments expressed in Representative Shellabarger's opening speech were echoed by Senator Edmunds, the manager of H.R. 320 in the Senate:
55
"The first section is one that I believe nobody objects to, as defining the rights secured by the Constitution of the United States when they are assailed by any State law or under color of any State law, and it is merely carrying out the principles of the civil rights bill [of 1866], which have since become a part of the Constitution." Globe 568.
56
"[Section 1 is] so very simple and really reenact[s] the Constitution." Id., at 569.
57
And he agreed that the bill "secure[d] the rights of white men as much as of colored men." Id., at 696.
58
In both Houses, statements of the supporters of § 1 corroborated that Congress, in enacting § 1, intended to give a broad remedy for violations of federally protected civil rights.45 Moreover, since municipalities through their official acts could, equally with natural persons, create the harms intended to be remedied by § 1, and, further, since Congress intended § 1 to be broadly construed, there is no reason to suppose that municipal corporations would have been excluded from the sweep of § 1. Cf., e. g., Ex parte Virginia, 100 U.S. 339, 346-347, 25 L.Ed. 676 (1880); Home Tel. & Tel. Co. v. Los Angeles, 227 U.S. 278, 286-287, 294-296, 33 S.Ct. 312, 57 L.Ed. 510 (1913). One need not rely on this inference alone, however, for the debates show that Members of Congress understood "persons" to include municipal corporations.
59
Representative Bingham, for example, in discussing § 1 of the bill, explained that he had drafted § 1 of the Fourteenth Amendment with the case of Barron v. Mayor of Baltimore, 7 Pet. 243, 8 L.Ed. 672 (1833), especially in mind. "In [that] case the city had taken private property for public use, without COMPENSATION . . . , AND THERE WAS NO REDRESS FOR THE wrong . . . ." globe App. 84 (emphasis added). Bingham's further remarks clearly indicate his view that such takings by cities, as had occurred in Barron, would be redressable under § 1 of the bill. See Globe App. 85. More generally, and as Bingham's remarks confirm, § 1 of the bill would logically be the vehicle by which Congress provided redress for takings, since that section provided the only civil remedy for Fourteenth Amendment viola ions and that Amendment unequivocally prohibited uncompensated takings.46 Given this purpose, it beggars reason to suppose that Congress would have exempted municipalities from suit, insisting instead that compensation for a taking come from an officer in his individual capacity rather than from the government unit that had the benefit of the property taken.47
60
In addition, by 1871, it was well understood that corporations should be treated as natural persons for virtually all purposes of constitutional and statutory analysis. This had not always been so. When this Court first considered the question of the status of corporations, Mr. Chief Justice Marshall, writing for the Court, denied that corporations "as such" were persons as that term was used in Art. III and the Judiciary Act of 1789. See Bank of the United States v. Deveaux, 5 Cranch 61, 86, 3 L.Ed. 38 (1809).48 By 1844, however, the Deveaux doctrine was unhesitatingly abandoned:
61
"[A] corporation created by and doing business in a particular state, is to be deemed to all intents and purposes as a person, although an artificial person, . . . capable of being treated as a citizen of that state, as much as a natural person." Louisville R. Co. v. Letson, 2 How. 497, 558, 11 L.Ed. 353 (1844) (emphasis added), discussed in Globe 752.
62
And only two years before the debates on the Civil Rights Act, in Cowles v. Mercer County, 7 Wall. 118, 121, 19 L.Ed. 86 (1869), the Letson principle was automatically and without discussion extended to municipal corporations. Under this doctrine, municipal corporations were routinely sued in the federal courts49 and this fact was well known to Members of Congress.50
63
That the "usual" meaning of the word "person" would extend to municipal corporations is also evidenced by an Act of Congress which had been passed only months before the Civil Rights Act was passed. This Act provided that
64
"in all acts hereafter passed . . . the word 'person' may extend and be applied to bodies politic and corporate . . . unless the context shows that such words were intended to be used in a more limited sense." Act of Feb. 25, 1871, § 2, 16 Stat. 431.
65
Municipal corporations in 1871 were included within the phrase "bodies politic and corporate"51 and, accordingly, the "plain meaning" of § 1 is that local government bodies were to be included within the ambit of the persons who could be sued under § 1 of the Civil Rights Act. Indeed, a Circuit Judge, writing in 1873 in what is apparently the first reported case under § 1, read the Dictionary Act in precisely this way in a case involving a corporate plaintiff and a municipal defendant.52 See Northwestern Fertilizing Co. v. Hyde Park, 18 F.Cas. 393, 394 (No. 10,336) (CC ND Ill.1873).53
II
66
Our analysis of the legislative history of the Civil Rights Act of 1871 compels the conclusion that Congress did intend municipalities and other local government units to be included among those persons to whom § 1983 applies.54 Local governing bodies,55 therefore, can be sued directly under § 1983 for monetary, declaratory, or injunctive relief where, as here, the action that is alleged to be unconstitutional implements or executes a policy statement, ordinance, regulation, or decision officially adopted and promulgated by that body's officers. Moreover, although the touchstone of the § 1983 action against a government body is an allegation that official policy is responsible for a deprivation of rights protected by the Constitution, local governments, like every other § 1983 "person," by the very terms of the statute, may be sued for constitutional deprivations visited pursuant to governmental "custom" even though such a custom has not received formal approval through the body's official decisionmaking channels. As Mr. Justice Harlan, writing for the Court, said in Adickes v. S. H. Kress & Co., 398 U.S. 144, 167-168, 90 S.Ct. 1598, 1613, 26 L.Ed.2d 142 (1970): "Congress included customs and usages [in § 1983] because of the persistent and widespread discriminatory practices of state officials . . . . Although not authorized by written law, such practices of state officials could well be so permanent and well settled as to constitute a 'custom or usage' with the force of law."56
67
On the other hand, the language of § 1983, read against the background of the same legislative history, compels the conclusion that Congress did not intend municipalities to be held liable unless action pursuant to official municipal policy of some nature caused a constitutional tort. In particular, we conclude that a municipality cannot be held liable solely because it employs a tortfeasor—or, in other words, a municipality cannot be held liable under § 1983 on a respondeat superior theory.
68
We begin with the language of § 1983 as originally passed:
69
"[A]ny person who, under color of any law, statute, ordinance, regulation, custom, or usage of any State, shall subject, or cause to be subjected, any person . . . to the deprivation of any rights, privileges, or immunities secured by the Constitution of the United States, shall, any such law, statute, ordinance, regulation, custom, or usage of the State to the contrary notwithstanding, be liable to the party injured in any action at law, suit in equity, or other proper proceeding for redress . . . ." 17 Stat. 13. (emphasis added).
70
The italicized language plainly imposes liability on a government that, under color of some official policy, "causes" an employee to violate another's constitutional rights. At the same time, that language cannot be easily read to impose liability vicariously on governing bodies solely on the basis of the existence of an employer-employee relationship with a tortfeasor. Indeed, the fact that Congress did specifically provide that A's tort became B's liability if B "caused" A to subject another to a tort suggests that Congr §§ did not intend § 1983 liability to attach where such causation was absent.57 See Rizzo v. Goode, 423 U.S. 362, 370-371, 96 S.Ct. 598, 602, 46 L.Ed.2d 561 (1976).
71
Equally important, creation of a federal law of respondeat superior would have raised all the constitutional problems associated with the obligation to keep the peace, an obligation Congress chose not to impose because it thought imposition of such an obligation unconstitutional. To this day, there is disagreement about the basis for imposing liability on an employer for the torts of an employee when the sole nexus between the employer and the tort is the fact of the employer-employee relationship. See W. Prosser, Law of Torts § 69, p. 459 (4th ed. 1971). Nonetheless, two justifications tend to stand out. First is the common-sense notion that no matter how blameless an employer appears to be in an individual case, accidents might nonetheless be reduced if employers had to bear the cost of accidents. See, e. g., ibid.; 2 F. Harper & F. James, Law of Torts, § 26.3, pp. 1368-1369 (1956). Second is the argument that the cost of accidents should be spread to the community as a whole on an insurance theory. See, e. g., id., § 26.5; Prosser, supra, at 459.58
72
The first justification is of the same sort that was offered for statutes like the Sherman amendment: "The obligation to make compensation for injury resulting from riot is, by arbitrary enactment of statutes, affirmatory law, and the reason of passing the statute is to secure a more perfect police regulation." Globe 777 (Sen. Frelinghuysen). This justification was obviously insufficient to sustain the amendment against perceived constitutional difficulties and there is no reason to suppose that a more general liability imposed for a similar reason would have been thought less constitutionally objectionable. The second justification was similarly put forward as a justification for the Sherman amendment: "we do not look upon [the Sherman amendment] as a punishment . . . . It is a mutual insurance." Id., at 792 (Rep. Butler). Again, this justification was insufficient to sustain the amendment.
73
We conclude, therefore, that a local government may not be sued under § 1983 for an injury inflicted solely by its employees or agents. Instead, it is when execution of a government's policy or custom, whether made by its lawmakers or by those whose edicts or acts may fairly be said to represent official policy, inflicts the injury that the government as an entity is responsible under § 1983. Since this case unquestionably involves official policy as the moving force of the constitutional violation found by the District Court, see supra, at 660-662, and n. 2, we must reverse the judgment below. In so doing, we have no occasion to address, and do not address, what the full contours of municipal liability under § 1983 may be. We have attempted only to sketch so much of the § 1983 cause of action against a local government as is apparent from the history of the 1871 Act and our prior cases, and we expressly leave further development of this action to another day.
III
74
Although we have stated that stare decisis has more force in statutory analysis than in constitutional adjudication because, in the former situation, Congress can correct our mistakes through legislation, see, e. g., Edelman v. Jordan, 415 U.S. 651, 671, and n. 14, 94 S.Ct. 1347, 1365, 39 L.Ed.2d 662 (1974), we have never applied stare decisis mechanically to prohibit overruling our earlier decisions determining the meaning of statutes. See, e. g., Continental T. V., Inc. v. GTE Sylvania, Inc., 433 U.S. 36, 47-49, 97 S.Ct. 2549, 2559, 53 L.Ed.2d 568 (1977); Burnet v. Coronado Oil & Gas Co., 285 U.S. 393, 406 n. 1, 52 S.Ct. 443, 454, 76 L.Ed. 815 (1932) (Brandeis, J., dissenting) (collecting cases). Nor is this a case where we should "place on the shoulders of Congress the burden of the Court's own error." Girouard v. United States, 328 U.S. 61, 70, 66 S.Ct. 826, 830, 90 L.Ed. 1084 (1946).
75
First, Monroe v. Pape, insofar as it completely immunizes municipalities from suit under § 1983, was a departure from prior practice. See, e. g., Northwestern Fertilizing Co. v. Hyde Park, 18 Fed.Cas. 393 (No. 10,336) (CC ND Ill.1873); City of Manchester v. Leiby, 117 F.2d 661 (CA1 1941); Hannan v. City of Haverhill, 120 F.2d 87 (CA1 1941); Douglas v. City of Jeannette, 319 U.S. 157, 63 S.Ct. 877, 87 L.Ed. 1324 ( 943); Holmes v. City of Atlanta, 350 U.S. 879, 76 S.Ct. 141, 100 L.Ed. 776 (1955), in each of which municipalities were defendants in § 1983 suits.59 Moreover, the constitutional defect that led to the rejection of the Sherman amendment would not have distinguished between municipalities and school boards, each of which is an instrumentality of state administration. See supra, at 673-682. For this reason, our cases—decided both before and after Monroe, see n. 5, supra —holding school boards liable in § 1983 actions are inconsistent with Monroe, especially as Monroe § immunizing principle was extended to suits for injunctive relief in City of Kenosha v. Bruno, 412 U.S. 507, 93 S.Ct. 2222, 37 L.Ed.2d 109 (1973).60 And although in many of these cases jurisdiction was not questioned, we ought not "disregard the implications of an exercise of judicial authority assumed to be proper for [100] years." Brown Shoe Co. v. United States, 370 U.S. 294, 307, 82 S.Ct. 1502, 1514, 8 L.Ed.2d 510 (1962); see Bank of the United States v. Deveaux, 5 Cranch, at 88 (Marshall, C. J.) ("Those decisions are not cited as authority . . . but they have much weight as they show that this point neither occurred to the bar or the bench"). Thus, while we have reaffirmed Monroe without further examination on three occasions,61 it can scarcely be said that Monroe is so consistent with the warp and woof of civil rights law as to be beyond question.
76
Second, the principle of blanket immunity established in Monroe cannot be cabined short of school boards. Yet such an extension would itself be inconsistent with recent expressions of congressional intent. In the wake of our decisions, Congress not only has shown no hostility to federal-court decisions against school boards, but it has indeed rejected efforts to strip the federal courts of jurisdiction over school boards.62 Moreover, recognizing that school boards are often defendants in school desegregation suits, which have almost without exception been § 1983 suits, Congress has twice passed legislation authorizing grants to school boards to assist them in complying with federal-court decrees.63 Finally, in regard to the Civil Rights Attorney's Fees Awards Act of 1976, 90 Stat. 2641, 42 U.S.C. § 1988 (1976 ed.), which allows prevailing parties (in the discretion of the court) in § 1983 suitsto obtain attorney's fees from the losing parties, the Senate stated:
77
"[D]efendants in these cases are often State or local bodies or State or local officials. In such cases it is intended that the attorneys' fees, like other items of costs, will be collected either directly from the official, in his official capacity, from funds of his agency or under his control, or from the State or local government (whether or not the agency or government is a named party)." S.Rep.No.94-1011, p. 5 (1976); U.S.Code Cong. & Admin.News 1976, pp. 5908, 5913 (emphasis added; footnotes omitted).
78
Far from showing that Congress has relied on Monroe, therefore, events since 1961 show that Congress has refused to extend the benefits of Monroe to school boards and has attempted to allow awards of attorney's fees against local governments even though Monroe, City of Kenosha v. Bruno, and Aldinger v. Howard, 427 U.S. 1, 96 S.Ct. 2413, 49 L.Ed.2d 276 (1976), have made the joinder of such governments impossible.64
79
Third, municipalities can assert no reliance claim which can support an absolute immunity. As Mr. Justice Frankfurter said in Monroe, "[t]his is not an area of commercial law in which, presumably, individuals may have arranged their affairs in reliance on the expected stability of decision." 365 U.S., at 221-222, 81 S.Ct., at 503 (dissenting in part). Indeed, municipalities simply cannot "arrange their affairs" on an assumption that they can violate constitutional rights indefinitely since injunctive suits against local officials under § 1983 would prohibit any such arrangement. And it scarcely need be mentioned that nothing in Monroe encourages municipalities to violate constitutional rights or even suggests that such violations are anything other than completely wrong.
80
Finally, even under the most stringent test for the propriety of overruling a statutory decision proposed by Mr. Justice Harlan in Monroe65—"that it appear beyond doubt from the legislative history of the 1871 statute that [Monroe ] misapprehended the meaning of the [section]," 365 U.S., at 192, 81 S.Ct., at 487 (concurring opinion)—the overruling of Monroe insofar as it holds that local governments are not "persons" who may be defendants in § 1983 suits is clearly proper. It is simply beyond doubt that, under the 1871 Congress' view of the law, were § 1983 iability unconstitutional as to local governments, it would have been equally unconstitutional as to state officers. Yet everyone proponents and opponents alike—knew § 1983 would be applied to state officers and nonetheless stated that § 1983 was constitutional. Seesupra, at 680-682. And, moreover, there can be no doubt that § 1 of the Civil Rights Act was intended to provide a remedy, to be broadly construed, against all forms of official violation of federally protected rights. Therefore, absent a clear statement in the legislative history supporting the conclusion that § 1 was not to apply to the official acts of a municipal corporation—which simply is not present—there is no justification for excluding municipalities from the "persons" covered by § 1.
81
For reasons stated above, therefore, we hold that stare decisis does not bar our overruling of Monroe insofar as it is inconsistent with Parts I and II of this opinion.66
IV
82
Since the question whether local government bodies should be afforded some form of official immunity was not presented as a question to be decided on this petition and was not briefed by the parties or addressed by the courts below, we express no views on the scope of any municipal immunity beyond holding that municipal bodies sued under § 1983 cannot be entitled to an absolute immunity, lest our decision that such bodies are subject to suit under § 1983 "be drained of meaning," Scheuer v. Rhodes, 416 U.S. 232, 248, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974). Cf. Bivens v. Six Unknown Federal Narcotics Agents, 403 U.S. 388, 397-398, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971).
V
83
For the reasons stated above, the judgment of the Court of Appeals is
84
Reversed.
APPENDIX TO OPINION OF THE COURT
85
As proposed, the Sherman amendment was as follows:
86
"That if any house, tenement, cabin, shop, building, barn, or granary shall be unlawfully or feloniously demolished, pulled down, burned, or destroyed, wholly or in part, by any persons riotously and tumultuously assembled together; or if any person shall unlawfully and with force and violence be whipped, scourged, wounded, or killed by any persons riotously and tumultuously assembled together; and if such offense was committed to deprive any person of any right conferred upon him by the Constitution and laws of the United States, or to deter him or punish him for exercising such right, or by reason of his race, color, or previ us condition of servitude, in every such case the inhabitants of the county, city, or parish in which any of the said offenses shall be committed shall be liable to pay full compensation to the person or persons damnified by such offense if living, or to his widow or legal representative if dead; and such compensation may be recovered by such person or his representative by a suit in any court of the United States of competent jurisdiction in the district in which the offense was committed, to be in the name of the person injured, or his legal representative, and against said county, city, or parish. And execution may be issued on a judgment rendered in such suit and may be levied upon any property, real or personal, of any person in said county, city, or parish, and the said county, city, or parish may recover the full amount of such judgment, costs and interest, from any person or persons engaged as principal or accessory in such riot in an action in any court of competent jurisdiction." Globe 663.
87
The complete text of the first conference substitute for the Sherman amendment is:
88
"That if any house, tenement, cabin, shop, building, barn, or granary shall be unlawfully or feloniously demolished, pulled down, burned, or destroyed, wholly or in part, by any persons riotously and tumultuously assembled together; or if any person shall unlawfully and with force and violence be whipped, scourged, wounded, or killed by any persons riotously and tumultuously assembled together, with intent to deprive any person of any right conferred upon him by the Constitution and laws of the United States, or to deter him or punish him for exercising such right, or by reason of his race, color, or previous condition of servitude, in every such case the county, city, or parish in which any of the said offenses shall be committed shall be liable to pay full compensation to the person or persons damnified by such offense, if living, or to his widow or legal representative if dead; and such compensation may be recovered in an action on the case by such person or his representative in any court of the United States of competent jurisdiction in the district in which the offense was committed, such action to be in the name of the person injured, or his legal representative, and against said county, city, or parish, and in which action any of the parties committing such acts may be joined as defendants. And any payment of any judgment, or part thereof unsatisfied, recovered by the plaintiff in such action, may, if not satisfied by the individual defendant therein within two months next after the recovery of such judgment upon execution duly issued against such individual defendant in such judgment, and returned unsatisfied, in whole or in part, be enforced against such county, city, or parish, by execution, attachment, mandamus, garnishment, or any other proceeding in aid of execution or applicable to the enforcement of judgments against municipal corporations; and such judgment shall be a lien as well upon all moneys in the treasury of such county, city, or parish, as upon the other property thereof. And the court in any such action may on motion cause additional parties to be made therein prior to issue joined, to the end that justice may be done. And the said county, city, or parish may recover the full amount of such judgment, by it paid, with costs and interest, from any person or persons engaged as principal or accessory in such riot, in an action in any court of competent jurisdiction. And such county, city, or parish, so paying, shall also be subrogated to all the plaintiff's rights under such judgment." Id., at 749, 755.
89
The relevant text of the second conference substitute for the Sherman amendment is as follows:
90
"[A]ny person or persons having knowledge that any of the wrongs conspired to be done and mentioned in the second section of this act are about to be committed, and having power to prevent or aid in preventing the same, shall negl ct or refuse so to do, and such wrongful act shall be committed, such person or persons shall be liable to the person injured, or his legal representatives." Id., at 804 (emphasis added).
91
Mr. Justice POWELL, concurring.
92
I join the opinion of the Court, and express these additional views.
93
Few cases in the history of the Court have been cited more frequently than Monroe v. Pape, 365 U.S. 167, 81 S.Ct. 473, 5 L.Ed.2d 492 (1961), decided less than two decades ago. Focusing new light on 42 U.S.C. § 1983, that decision widened access to the federal courts and permitted expansive interpretations of the reach of the 1871 measure. But Monroe exempted local governments from liability at the same time it opened wide the courthouse door to suits against officers and employees of those entities—even when they act pursuant to express authorization. The oddness of this result, and the weakness of the historical evidence relied on by the Monroe Court in support of it, are well demonstrated by the Court's opinion today. Yet the gravity of overruling a part of so important a decision prompts me to write.
94
* In addressing a complaint alleging unconstitutional police conduct that probably was unauthorized and actionable under state law,1 the Monroe Court treated the 42d Congress' rejection of the Sherman amendment as conclusive evidence of an intention to immunize local governments from all liability under the statute for constitutional injury. That reading, in light of today's thorough canvass of the legislative history, clearly "misapprehended the meaning of the controlling provision," Monroe, supra, at 192, 81 S.Ct. at 487 (Harlan, J., concurring). In this case, involving formal, written policies of the Department of Social Services and the Board of Education of the city of New York that are alleged to conflict with the command of the Due Process Clause, cf. Cleveland Board of Education v. LaFleur, 414 U.S. 632, 94 S.Ct. 791, 39 L.Ed.2d 52 (1974), the Court decides "not to reject [wisdom] merely because it comes late," Henslee v. Union Planters Bank, 335 U.S. 595, 600, 69 S.Ct. 290, 293, 93 L.Ed. 259 (1949) (Frankfurter, J., dissenting).
95
As the Court demonstrates, the Sherman amendment presented an extreme example of "riot act" legislation that sought to impose vicarious liability on government subdivisions for the consequences of private lawlessness. As such, it implicated concerns that are of marginal pertinence to the operative principle of § 1 of the 1871 legislation—now § 1983—that "any person" acting "under color of" state law may be held liable for affirmative conduct that "subjects, or causes to be subjected, any person . . . to the deprivation of any" federal constitutional or statutory right. Of the many reasons for the defeat of the Sherman proposal, none supports Monroe § observation that he 42d Congress was fundamentally "antagonistic," 365 U.S., at 191, 81 S.Ct. 473, to the proposition that government entities and natural persons alike should be held accountable for the consequences of conduct directly working a constitutional violation. Opponents in the Senate appear to have been troubled primarily by the proposal's unprecedented lien provision, which would have exposed even property held for public purposes to the demands of § 1983 judgment lienors. Ante, at 673-674, n. 30. The opposition in the House of Representatives focused largely on the Sherman amendment's attempt to impose a peacekeeping obligation on municipalities when the Constitution itself imposed no such affirmative duty and when many municipalities were not even empowered under state law to maintain police forces. Ante, at 673-675, 679-682.2
96
The Court correctly rejects a view of the legislative history that would produce the anomalous result of immunizing local government units from monetary liability for action directly causing a constitutional deprivation, even though such actions may be fully consistent with, and thus not remediable under, state law. No conduct of government comes more clearly within the "under color of" state law language of § 1983. It is most unlikely that Congress intended public officials acting under the command or the specific authorization of the government employer to be exclusively liable for resulting constitutional injury.3
97
As elaborated in Part II of today's opinion, the rejection of the Sherman amendment can best be understood not as evidence of Congress' acceptance of a rule of absolute municipal immunity but as a limitation of the statutory ambit to actual wrongdoers, i. e., a rejection of respondeat superior or any other principle of vicarious liability. Cf. Levin, The Section 1983 Municipal Immunity Doctrine, 65 Geo.L.J. 1483, 1531-1535 (1977). Thus, it has been clear that a public official may be held liable in damages when his actions are found to violate a constitutional right and there is no qualified immunity, see Wood v. Strickland, 420 U.S. 308, 95 S.Ct. 922, 43 L.Ed.2d 214 (1975); Procunier v. Navarette, 434 U.S. 555, 98 S.Ct. 855, 55 L.Ed.2d 24 (1978). Today the Court recognizes that this principle also applies to a local government when implementation of its official policies or established customs inflicts the constitutional injury.
II
98
This Court tradi ionally has been hesitant to overrule prior constructions of statutes or interpretations of common-law rules. "Stare decisis is usually the wise policy," Burnet v. Coronado Oil & Gas Co., 285 U.S. 393, 406, 52 S.Ct. 443, 447, 76 L.Ed. 815 (1932) (Brandeis, J., dissenting), but this cautionary principle must give way to countervailing considerations in appropriate circumstances.4 I concur in the Court's view that this is not a case where we should "place on the shoulders of Congress the burden of the Court's own error." Girouard v. United States, 328 U.S. 61, 70, 66 S.Ct. 826, 830, 90 L.Ed. 1084 (1946).
99
Nor is this the usual case in which the Court is asked to overrule a precedent. Here considerations of stare decisis cut in both directions. On the one hand, we have a series of rulings that municipalities and counties are not "persons" for purposes of § 1983. On the other hand, many decisions of this Court have been premised on the amenability of school boards and similar entities to § 1983 suits.
100
In Monroe and its progeny, we have answered a question that was never actually briefed or argued in this Court—whether a municipality is liable in damages for injuries that are the direct result of its official policies. "The theory of the complaint [in Monroe was] that under the circumstances [t]here alleged the City [was] liable for the acts of its police officers, by virtue of respondeat superior." Brief for Petitioners, O.T.1960, No. 39, p. 21.5 Respondents answered that adoption of petitioners' position would expose "Chicago and every other municipality in the United States . . . to Civil Rights Act liability through no action of its own and based on action contrary to its own ordinances and the laws of the state it is a part of." Brief for Respondents, O.T.1960, No. 39, p. 26. Thus the ground of decision in Monroe was not advanced by either party and was broader than necessary to resolve the contentions made in that case.6
101
Similarly, in Moor v. County of Alameda, 411 U.S. 693, 93 S.Ct. 1785, 36 L.Ed.2d 596 (1973), petitioners asserted that "the County was vicariously liable for the acts of its deputies and sheriff," id., at 696, 93 S.Ct. at 1789, under 42 U.S.C. § 1988. In rejecting this vicarious-liability claim, 411 U.S., at 710, and n. 27, 93 S.Ct., at 1796, and n. 27, we reaffirmed Monroe 's reading of the statute, but there was no challenge in that case to "the holding in Monroe concerning the status under § 1983 of public entities such as the County," 411 U.S., at 700, 93 S.Ct., at 1790; Brief for Petitioners, O.T.1972, No. 72-10, p. 9.
102
Only in City of Kenosha v. Bruno, 412 U.S. 507, 93 S.Ct. 2222, 37 L.Ed.2d 109 (1973), did the Court confront a § 1983 claim based on conduct that was both authorized under state law and the direct cause of the claimed constitutional injury. In Kenosha, however, we raised the issue of the city's amenability to suit under § 1983 on our own initiative.7
103
This line of cases—from Monroe to Kenosha —is difficult to reconcile on a principled basis with a parallel series of cases in which the Court has assumed sub silentio that some local government entities could be sued under § 1983. If now, after full consideration of the question, we continued to adhere to Monroe, grave doubt would be cast upon the Court's exercise of § 1983 jurisdiction over school boards. See ante, at 663 n. 5. Since "the principle of blanket immunity established in Monroe cannot be cabined short of school boards," ante, at 696, the conflict is squarely presented. Although there was an independent basis of jurisdiction in many of the school board cases because of the inclusion of individual public officials as nominal parties, the opinions of this Court make explici reference to the school board party, particularly in discussions of the relief to be awarded, see, e. g., Green v. County School Board, 391 U.S. 430, 437-439, 441-442, 88 S.Ct. 1689, 20 L.Ed.2d 716 (1968); Milliken v. Bradley, 433 U.S. 267, 292-293, 97 S.Ct. 2749, 53 L.Ed.2d 745 (1977) (Powell, J., concurring in judgment). And, as the Court points out, ante, at 696-697, and nn. 62, 63, Congress has focused specifically on this Court's school board decisions in several statutes. Thus the exercise of § 1983 jurisdiction over school boards, while perhaps not premised on considered holdings, has been longstanding. Indeed, it predated Monroe.
104
Even if one attempts to explain away the school board decisions as involving suits which "may be maintained against board members in their official capacities for injunctive relief under either § 1983 or Ex parte Young, 209 U.S. 123, 28 S.Ct. 441, 52 L.Ed. 714 (1908)," post, at 716-717, n. 2, some difficulty remains in rationalizing the relevant body of precedents. At least two of the school board cases involved claims for monetary relief. Cohen v. Chesterfield County School Board, 326 F.Supp. 1159, 1161 (ED Va.1971), rev'd, 474 F.2d 395 (CA4 1973), rev'd and remanded, 414 U.S. 632, 94 S.Ct. 791, 39 L.Ed.2d 52 (1974); Tinker v. Des Moines School Dist., 393 U.S. 503, 504, 89 S.Ct. 733, 21 L.Ed.2d 731 (1969). See also Vlandis v. Kline, 412 U.S. 441, 445, 93 S.Ct. 2230, 37 L.Ed.2d 63 (1973). Although the point was not squarely presented in this Court, these claimsfor damages could not have been maintained in official-capacity suits if the government entity were not itself suable. Cf. Edelman v. Jordan, 415 U.S. 651, 94 S.Ct. 1347, 39 L.Ed.2d 662 (1974).8 Moreover the rationale of Kenosha would have to be disturbed to avoid closing all avenues under § 1983 to injunctive relief against constitutional violations by local government. The Court of Appeals in this case suggested that we import, by analogy, the Eleventh Amendment fiction of Ex parte Young into § 1983, 532 F.2d 259, 264-266 (CA2 1976). That approach, however, would create tension with Kenosha because it would require "a bifurcated application" of "the generic word 'person' in § 1983" to public officials "depending on the nature of the relief sought against them." 412 U.S., at 513, 93 S.Ct. at 2226. A public official sued in his official capacity for carrying out official policy would be a "person" for purposes of injunctive relief, but a non-"person" in an action for damages. The Court's holding avoids this difficulty. See ante, at 690 n. 55.
105
Finally, if we continued to adhere to a rule of absolute municipal immunity under § 1983, we could not long avoid the question whether "we should, by analogy to our decision in Bivens v. Six Unknown Fed. Narcotics Agents, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971), imply a cause of action directly from the Fourteenth Amendment which would not be subject to the limitations contained in § 1983 . . . ." Mt. Healthy City Board of Ed. v. Doyle, 429 U.S. 274, 278, 97 S.Ct. 568, 571, 50 L.Ed.2d 471 (1977). One aspect of that inquiry would be whether there are any "special factors counselling hesitation in the absence of affirmative action by Congress," Bivens v. Six Unknown Fed. Narcotics Agents, 403 U.S. 388, 396, 91 S.Ct. 1999, 2005, 29 L.Ed.2d 619 (1971), such as an "explicit congressional declaration that persons injured by a [municipality] may not recover money damages . . . , but must instead be remitted to another remedy, equally effective in the vi w of Congress," id., at 397, 91 S.Ct. at 2005. In light of the Court's persuasive re-examination in today's decision of the 1871 debates, I would have difficulty inferring from § 1983 "an explicit congressional declaration" against municipal liability for the implementation of official policies in violation of the Constitution. Rather than constitutionalize a cause of action against local government that Congress intended to create in 1871, the better course is to confess error and set the record straight, as the Court does today.9
III
106
Difficult questions nevertheless remain for another day. There are substantial line-drawing problems in determining "when execution of a government's policy or custom" can be said to inflict constitutional injury such that "government as an entity is responsible under § 1983." Ante, at 694. This case, however, involves formal, written policies of a municipal department and school board; it is the clear case. The Court also reserves decision on the availability of a qualified municipal immunity. Ante, at 701. Initial resolution of the question whether the protection available at common law for municipal corporations, see post, at 720-721, or other principles support a qualified municipal immunity in the context of the § 1983 damages action, is left to the lower federal courts.
107
Mr. Justice STEVENS, concurring in part.
108
Since Parts II and IV of the opinion of the Court are merely advisory and are not necessary to explain the Court's decision, I join only Parts I, III, and V.
109
Mr. Justice REHNQUIST, with whom THE CHIEF JUSTICE joins, dissenting.
110
Seventeen years ago, in Monroe v. Pape, 365 U.S. 167, 81 S.Ct. 473, 5 L.Ed.2d 492 (1961), this Court held that the 42d Congress did not intend to subject a municipal corporation to liability as a "person" within the meaning of 42 U.S.C. § 1983. Since then, the Congress has remained silent, but this Court has reaffirmed that holding on at least three separate occasions. Aldinger v. Howard, 427 U.S. 1, 96 S.Ct. 2413, 49 L.Ed.2d 276 (1976); City of Kenosha v. Bruno, 412 U.S. 507, 93 S.Ct. 2222, 37 L.Ed.2d 109 (1973); Moor v. County of Alameda, 411 U.S. 693, 93 S.Ct. 1785, 36 L.Ed.2d 596 (1973). See also Mt. Healthy City Board of Ed. v. Doyle, 429 U.S. 274, 277-279, 97 S.Ct. 568, 50 L.Ed.2d 471 (1977). Today, the Court abandons this long and consistent line of precedents, offering in justification only an elaborate canvass of the same legislative history which was before the Court in 1961. Because I cannot agree that this Court is "free to disregard these precedents," which have been "considered maturely and recently" by this Court, Runyon v. McCrary, 427 U.S. 160, 186, 96 S.Ct. 2586, 49 L.Ed.2d 415 (1976) (Powell, J., concurring), I am compelled to dissent.
111
* As this Court has repeatedly recognized, id., at 175 n. 12, 96 S.Ct., at 2596; Edelman v. Jordan, 415 U.S. 651, 671 n. 14, 94 S.Ct. 1347, 39 L.Ed.2d 662 (1974), considerations of stare decisis are at their strongest when this Court confronts its previous constructions of legislation. In all cases, private parties shape their conduct according to this Court's settle construction of the law, but the Congress is at liberty to correct our mistakes of statutory construction, unlike our constitutional interpretations, whenever it sees fit. The controlling principles were best stated by Mr. Justice Brandeis:
112
"Stare decisis is usually the wise policy, because in most matters it is more important that the applicable rule of law be settled than that it be settled right. . . . This is commonly true even where the error is a matter of serious concern, provided correction can be had by legislation. But in cases involving the Federal Constitution, where correction through legislative action is practically impossible, this court has often overruled its earlier decisions." Burnet v. Coronado Oil & Gas Co., 285 U.S. 393, 406-407, 52 S.Ct. 443, 447, 76 L.Ed. 815 (1932) (dissenting opinion) (footnotes omitted).
113
Only the most compelling circumstances can justify this Court's abandonment of such firmly established statutory precedents. The best exposition of the proper burden of persuasion was delivered by Mr. Justice Harlan in Monroe itself:
114
"From my point of view, the policy of stare decisis, as it should be applied in matters of statutory construction, and, to a lesser extent, the indications of congressional acceptance of this Court's earlier interpretation, require that it appear beyond doubt from the legislative history of the 1871 statute that [United States v.] Classic, [313 U.S. 299, 61 S.Ct. 1031, 85 L.Ed. 1368 (1941)] and Screws [v. United States, 325 U.S. 91, 65 S.Ct. 1031, 89 L.Ed. 1495 (1945)] misapprehended the meaning of the controlling provision, before a departure from what was decided in those cases would be justified." 365 U.S., at 192, 81 S.Ct., at 487 (concurring opinion) (footnote omitted; emphasis added).
115
The Court does not demonstrate that any exception to this general rule is properly applicable here. The Court's first assertion, that Monroe "was a departure from prior practice," ante, at 695, is patently erroneous. Neither in Douglas v. City of Jeannette, 319 U.S. 157, 63 S.Ct. 877, 87 L.Ed. 1324 (1943), nor in Holmes v. Atlanta, 350 U.S. 879, 76 S.Ct. 141, 100 L.Ed. 776 (1955), nor in any of the school board cases cited by the Court, ante, at 663 n. 5, was the question now before us raised by any of the litigants or addressed by this Court. As recently as four Terms ago, we said in Hagans v. Lavine, 415 U.S. 528, 535 n. 5, 94 S.Ct. 1372, 1378 n. 5, 39 L.Ed.2d 577 (1974):
116
"Moreover, when questions of jurisdiction have been passed on in prior decisions sub silentio, this Court has never considered itself bound when a subsequent case finally brings the jurisdictional issue before us."
117
The source of this doctrine that jurisdictional issues decided sub silentio are not binding in other cases seems to be Mr. Chief Justice Marshall's remark in United States v. More, 3 Cranch 159, 172, 2 L.Ed. 397 (1805).1 While the Chief Justice also said that such decisions may "have much weight, as they show that this point neither occurred to the bar or the bench," Bank of the United States v. Deveaux, 5 Cranch 61, 88, 3 L.Ed. 38 (1809), unconsidered assumptions of jurisdiction simply cannot outweigh four consistent decisions of this Court, explicitly considering and rejecting that jurisdiction.
118
Nor is there any indication that any later Congress has ever approved suit against any municipal corporation under § 1983. Of a l its recent enactments, only the Civil Rights Attorney's Fees Awards Act of 1976, § 2, 90 Stat. 2641, 42 U.S.C. § 1988 (1976 ed.), explicitly deals with the Civil Rights Act of 1871.2 The 1976 Act provides that attorney's fees may be awardedto the prevailing party "[i]n any action or proceeding to enforce a provision of sections 1981, 1982, 1983, 1985, and 1986 of this title." There is plainly no language in the 1976 Act which would enlarge the parties suable under those substantive sections; it simply provides that parties who are already suable may be made liable for attorney's fees. As the Court admits, ante, at 699, the language in the Senate Report stating that liability may be imposed "whether or not the agency or government is a named party," S.Rep.No. 94-1011, p. 5 (1976); U.S.Code Cong. & Admin.News 1976, pp. 5908, 5912, suggests that Congress did not view its purpose as being in any way inconsistent with the well-known holding of Monroe.
119
The Court's assertion that municipalities have no right to act "on an assumption that they can violate constitutional rights indefinitely," ante, at 700, is simply beside the point. Since Monroe, municipalities have had the right to expect that they would not be held liable retroactively for their officers' failure to predict this Court's recognition of new constitutional rights. No doubt innumerable municipal insurance policies and indemnity ordinances have been founded on this assumption, which is wholly justifiable under established principles of stare decisis. To obliterate those legitimate expectations without more compelling justifications than those advanced by the Court is a significant departure from our prior practice.
120
I cannot agree with Mr. Justice POWELL's view that "[w]e owe somewhat less deference to a decision that was rendered without benefit of a full airing of all the relevant considerations." Ante, at 709 n. 6. Private parties must be able to rely upon explicitly stated holdings of this Court without being obliged to peruse the briefs of the litigants to predict the likelihood that this Court might change its mind. To cast such doubt upon each of our cases, from Marbury v. Madison, 1 Cranch 137, 2 L.Ed. 60 (1803), forward, in which the explicit ground of decision "was never actually briefed or argued," ante, at 708 (POWELL, J., concurring), would introduce intolerable uncertainty into the law. Indeed, in Marbury itself, the argument of Charles Lee on behalf of the applicants—which, unlike the arguments in Monroe, is reproduced in the Reports of this Court where anyone can see it—devotes not a word to the question of whether this Court has the power to invalidate a statute duly enacted by the Congress. Neither this ground of decision nor any other was advanced by Secretary of State Madison, who evidently made no appearance. 1 Cranch, at 153-154. More recent landmark decisions of this Court would appear to be likewise vulnerable under my Brother POWELL's analysis. In Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961), none of the parties requested the Court to overrule Wolf v. Colorado, 338 U.S. 25, 69 S.Ct. 1359, 93 L.Ed. 1782 (1949); it did so only at the request of an amicus curiae. 367 U.S., at 646 n. 3, 81 S.Ct. 1684. That Marbury, Mapp, and countless other decisions retain their vitality despite their obvious flaws is a necessary by-product of the adversary system, in which both judges and the general public rely upon litigants to present "all the relevant considerations." Ante, at 709 n. 6 (POWELL, J., concurring). While it undoubtedly has more latitude in the field of constitutional interpretation, this Court is surely not free to abandon settled statutory interpretation at any time a new thought seems appealing.3
121
Thus, our only task is to discern the intent of the 42d Congress. That intent was first expounded in Monroe, and it has been followed consistently ever since. This is not some esoteric branch of the law in which congressional silence might reasonably be equated with congressional indifference. Indeed, this very year, the Senate has been holding hearings on a bill, S. 35, 95th Cong., 1st Sess. (1977), which would remove the municipal immunity recognized by Monroe. 124 Cong.Rec. D117 (daily ed. Feb. 8, 1978). In these circumstances, it cannot be disputed that established principles of stare decisis require this Court to pay the highest degree of deference to its prior holdings. Monroe may not be overruled unless it has been demonstrated "beyond doubt from the legislative history of the 1871 statute that [Monroe ] misapprehended the meaning of the controlling provision." Monroe, 365 U.S., at 192, 81 S.Ct., at 487 (Harlan, J., concurring). The Court must show not only that Congress, in rejecting the Sherman amendment, concluded that municipal liability was not unconstitutional, but also that, in enacting § 1, it intended to impose that liability. I am satisfied that no such showing has been made.
II
122
Any analysis of the meaning of the word "person" in § 1983, which was originally enacted as § 1 of the Ku Klux Klan Act of April 20, 1871, 17 Stat. 13, must begin, not with the Sherman amendment, but with the Dictionary Act. The latter Act, which supplied rules of construction for all legislation, provided:
123
"That in all acts hereafter passed . . . the word 'person' may extend and be applied to bodies politic and corporate . . . unless the context shows that such words were intended to be used in a more limited sense . . . ." Act of Feb. 25, 1871, § 2, 16 Stat. 431.
124
The Act expressly provided that corporations need not be included within the scope of the word "person" where the context suggests a more limited reach. Not a word in the legislative history of the Act gives any indication of the contexts in which Congress felt it appropriate to include a corporation as a person. Indeed, the chief cause of concern was that the Act's provision that "words importing the masculine gender may be applied to females," might lead to an inadvertent extension of the suffrage to women. Cong. Globe, 41st Cong., 3d Sess., 777 (1871) (remarks of Sen. Sawyer).
125
There are other factors, however, which suggest that the Congress which enacted § 1983 may well have intended the word "person" "to be used in a more limited sense," as Monroe concluded. It is true that this Court had held that both commercial corporations, Louisville R. Co. v. Letson, 2 How. 497, 558, 11 L.Ed. 353 (1844), and municipal corporations, Cowles v. Mercer County, 7 Wall. 118, 121, 19 L.Ed. 86 (1869), were "citizens" of a State within the meaning of the jurisdictional provisions of Art. III. Congress, however, also knew that this label did not apply in all contexts, since this Court in Pa l v. Virginia, 8 Wall. 168, 19 L.Ed. 357 (1869), had held commercial corporations not to be "citizens" within the meaning of the Privileges and Immunities Clause, U.S.Const., Art. IV, § 2. Thus, the Congress surely knew that, for constitutional purposes, corporations generally enjoyed a different status in different contexts. Indeed, it may be presumed that Congress intended that a corporation should enjoy the same status under the Ku Klux Klan Act as it did under the Fourteenth Amendment, since it had been assured that § 1 "was so very simple and really reenact[ed] the Constitution." Cong. Globe, 42d Cong., 1st Sess., 569 (1871) (remarks of Sen. Edmunds). At the time § 1983 was enacted the only federal case to consider the status of corporations under the Fourteenth Amendment had concluded, with impeccable logic, that a corporation was neither a "citizen" nor a "person." Insurance Co. v. New Orleans, 13 Fed.Cas. 67 (No. 7,052) (CC La.1870).
126
Furthermore, the state courts did not speak with a single voice with regard to the tort liability of municipal corporations. Although many Members of Congress represented States which had retained absolute municipal tort immunity, see, e. g., Irvine v. Town of Greenwood, 89 S.C. 511, 72 S.E. 228 (1911) (collecting earlier cases), other States had adopted the currently predominant distinction imposing liability for proprietary acts, see generally 2 F. Harper & F. James, Law of Torts § 29.6 (1956), as early as 1842, Bailey v. Mayor of City of New York, 3 Hill 531 (N.Y.1842). Nevertheless, no state court had ever held that municipal corporations were always liable in tort in precisely the same manner as other persons.
127
The general remarks from the floor on the liberal purposes of § 1 offer no explicit guidance as to the parties against whom the remedy could be enforced. As the Court concedes, only Representative Bingham raised a concern which could be satisfied only by relief against governmental bodies. Yet he never directly related this concern to § 1 of the Act. Indeed, Bingham stated at the outset, "I do not propose now to discuss the provisions of the bill in detail," Cong. Globe, 42d Cong., 1st Sess., App. 82 (1871), and, true to his word, he launched into an extended discourse on the beneficent purposes of the Fourteenth Amendment. While Bingham clearly stated that Congress could "provide that no citizen in any State shall be deprived of his property by State law or the judgment of a State court without just compensation therefor," id., at 85, he never suggested that such a power was exercised in § 1.4 Finally, while Bingham has often been advanced as the chief expositor of the Fourteenth Amendment, Duncan v. Louisiana, 391 U.S. 145, 165, 88 S.Ct. 1444, 20 L.Ed.2d 491 (1968) (Black, J., concurring); Adamson v. California, 332 U.S. 46, 73-74, 67 S.Ct. 1672, 91 L.Ed. 1903 (1947) (Black, J., dissenting), there is nothing to indicate that his colleagues placed any greater credence in his theories than has this Court. See Duncan, supra, at 174-176, 88 S.Ct. 1444 (Harlan, J., dissenting); Adamson, supra, at 64, 67 S.Ct. 1672 (Frankfurter, J., concurring).
128
Thus, it ought not lightly to be presumed, as the Court does today, ante, at 690 n. 53 that § 1983 "should prima facie be construed to include 'bodies politic' among the entities that could be sued." Neither the Dictionary Act, the ambivalent state of judicial decisions, nor the floor debate on § 1 of the Act gives any indication that any Member of Congress had any inkling that § 1 could be used to impose liability on municipalities. Although Senator Thurman, as the Court emphasizes, ante, at 686 n. 45, expressed his belief that the terms of § 1 "are as comprehensive as can be used," Cong. Globe, 42d Cong., 1st Sess., App. 217 (1871), an examination of his lengthy remarks demonstrates that it never occurred to him that § 1 did impose or could have imposed any liability upon municipal corporations. In an extended parade of horribles, this "old Roman," who was one of the Act's most implacable opponents, suggested that state legislatures, Members of Congress, and state judges might be held liable under the Act. Ibid. If, at that point in the debate, he had any idea that § 1 was designed to impose tort liability upon cities and counties, he would surely have raised an additional outraged objection. Only once was that possibility placed squarely before the Congress—in its consideration of the Sherman amendment—and the Congress squarely rejected it.
129
The Court is probably correct that the rejection of the Sherman amendment does not lead ineluctably to the conclusion that Congress intended municipalities to be immune from liability under all circumstances. Nevertheless, it cannot be denied that the debate on that amendment, the only explicit consideration of municipal tort liability, sheds considerable light on the Congress' understanding of the status of municipal corporations in that context. Opponents of the amendment were well aware that municipalities had been subjected to the jurisdiction of the federal courts in the context of suits to enforce their contracts, Cong. Globe, 42d Cong., 1st Sess., 789 (1871) (remarks of Rep. Kerr), but they expressed their skepticism that such jurisdiction should be exercised in cases sounding in tort:
130
"Suppose a judgment obtained under this section, and no property can be found to levy upon except the courthouse, can we levy on the courthouse and sell it? So this section provides, and that too in an action of tort, in an action ex delicto, where the county has never entered into any contract, where the State has never authorized the county to assume any liability of the sort or imposed any liability upon it. It is in my opinion simply absurd." Id., at 799 (remarks of Rep. Farnsworth).
131
Whatever the merits of the constitutional arguments raised against it, the fact remains that Congress rejected the concept of municipal tort liability on the only occasion in which the question was explicitly presented. Admittedly this fact is not conclusive as to whether Congress intended § 1 to embrace a municipal corporation within the meaning of "person," and thus the reasoning of Monroe on this point is subject to challenge. The meaning of § 1 of the Act of 1871 has been subjected in this case to a more searching and careful analysis than it was in Monroe, and it may well be that on the basis of this closer analysis of the legislative debates a conclusion contrary to the Monroe holding could have been reached when that case was decided 17 years ago. But the rejection of the Sherman amendment remains instructive in that here alone did the legislative debates squarely focus on the liability of municipal corporations, and that liability was rejected. Any inference which might be drawn from the Dictionary Act or from general expressions of benevolence in the debate on § 1 that the word "person" was intended to include municipal corporations falls far short of showing "beyond doubt" tha this Court in Monroe "misapprehended the meaning of the controlling provision." Errors such as the Court may have fallen into in Monroe do not end the inquiry as to stare decisis ; they merely begin it. I would adhere to the holding ofMonroe as to the liability of a municipal corporation under § 1983.
III
132
The decision in Monroe v. Pape was the fountainhead of the torrent of civil rights litigation of the last 17 years. Using § 1983 as a vehicle, the courts have articulated new and previously unforeseeable interpretations of the Fourteenth Amendment. At the same time, the doctrine of municipal immunity enunciated in Monroe has protected municipalities and their limited treasuries from the consequences of their officials' failure to predict the course of this Court's constitutional jurisprudence. None of the Members of this Court can foresee the practical consequences of today's removal of that protection. Only the Congress, which has the benefit of the advice of every segment of this diverse Nation, is equipped to consider the results of such a drastic change in the law. It seems all but inevitable that it will find it necessary to do so after today's decision.
133
I would affirm the judgment of the Court of Appeals.
1
The complaint was amended on September 14, 1972, to allege a claim 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 District Court held that the 1972 amendments to Title VII did not apply retroactively to discrimination suffered prior to those amendments even when an action challenging such prior discrimination was pending on the date of the amendments. 394 F.Supp. 853, 856 (SDNY 1975). This holding was affirmed on appeal. 532 F.2d 259, 261-262 (CA2 1976). Although petitioners sought certiorari on the Title VII issue as well as the § 1983 claim, we restricted our grant of certiorari to the latter issue. 429 U.S. 1071, 97 S.Ct. 807, 50 L.Ed.2d 789.
2
The plaintiffs alleged that New York had a citywide policy of forcing women to take maternity leave after the fifth month of pregnancy unless a city physician and the head of an employee's agency allowed up to an additional two months of work. Amended Complaint ¶ 28, App. 13-14. The defendants did not deny this, but stated that this policy had been changed after suit was instituted. Answer ¶ 13, App. 32-33. The plaintiffs further alleged that the Board had a policy of requiring women to take maternity leave after the seventh month of pregnancy unless that month fell in the last month of the school year, in which case the teacher could remain through the end of the school term. Amended Complaint &Par; 39, 42, 45, App. 18-19, 21. This allegation was denied. Answer &Par; 18, 22, App. 35, 37.
3
Amended Complaint ¶ 24, App. 11-12.
4
Petitioners conceded that the Department of Social Services enjoys the same status as New York City for Monroe purposes. See 532 F.2d, at 263.
5
Milliken v. Bradley, 433 U.S. 267, 97 S.Ct. 2749, 53 L.Ed.2d 745 (1977); Dayton Board of Education v. Brinkman, 433 U.S. 406, 97 S.Ct. 2766, 53 L.Ed.2d 851 (1977); Vorchheimer v. School District of Philadelphia, 430 U.S. 703, 97 S.Ct. 1671, 51 L.Ed.2d 750 (1977); East Carroll Parish School Board v. Marshall, 424 U.S. 636, 96 S.Ct. 1083, 47 L.Ed.2d 296 (1976); Milliken v. Bradley, 418 U.S. 717, 94 S.Ct. 3112, 41 L.Ed.2d 1069 (1974); Bradley v. School Board of City of Richmond, 416 U.S. 696, 94 S.Ct. 2006, 40 L.Ed.2d 476 (1974); Cleveland Board of Education v. LaFleur, 414 U.S. 632, 94 S.Ct. 791, 39 L.Ed.2d 52 (1974); Keyes v. School District No. 1, Denver, Colo., 413 U.S. 189, 93 S.Ct. 2686, 37 L.Ed.2d 548 (1973); San Antonio School District v. Rodriguez, 411 U.S. 1, 93 S.Ct. 1278, 36 L.Ed.2d 16 (1973); Swann v. Charlotte-Mecklenburg Board of Education, 402 U.S. 1, 91 S.Ct. 1267, 28 L.Ed.2d 554 (1971); Northcross v. City of Memphis Board of Education, 397 U.S. 232, 90 S.Ct. 891, 25 L.Ed.2d 246 (1970); Carter v. West Feliciana Parish School Board, 396 U.S. 226, 90 S.Ct. 467, 24 L.Ed.2d 382 (1969); Alexander v. Holmes County Board of Education, 396 U.S. 19, 90 S.Ct. 29, 24 L.Ed.2d 19 (1969); Kramer v. Union Free School District, 395 U.S. 621, 89 S.Ct. 1886, 23 L.Ed.2d 583 (1969); Tinker v. Des Moines Independent School District, 393 U.S. 503, 89 S.Ct. 733, 21 L.Ed.2d 731 (1969); Monroe v. Board of Comm'rs, 391 U.S. 450, 88 S.Ct. 1700, 20 L.Ed.2d 733 (1968); Raney v. Board of Education, 391 U.S. 443, 88 S.Ct. 1697, 20 L.Ed.2d 727 (1968); Green v. County School Board of New Kent County, Va., 391 U.S. 430, 88 S.Ct. 1689, 20 L.Ed.2d 716 (1968); School District of Abington Township v. Schempp, 374 U.S. 203, 83 S.Ct. 1560, 10 L.Ed.2d 844 (1963); Goss v. Board of Education, 373 U.S. 683, 83 S.Ct. 1405, 10 L.Ed.2d 632 (1963); McNeese v. Board of Education, 373 U.S. 668, 83 S.Ct. 1433, 10 L.Ed.2d 622 (1963); Orleans Parish School Board v. Bush, 365 U.S. 569, 81 S.Ct. 754, 5 L.Ed.2d 806 (1961); Brown v. Board of Education, 347 U.S. 483, 74 S.Ct. 686, 98 L.Ed. 873 (1954).
6
Cleveland Board of Education v. LaFleur, supra, 414 U.S., at 636, 94 S.Ct., at 792; App., in Keyes v. School District No. 1, Denver Colo., 413 U.S. 189, 93 S.Ct. 2686, 37 L.Ed.2d 548; App., in Swann v. Charlotte-Mecklenburg Board of Education, 402 U.S. 1, 91 S.Ct. 1267, 28 L.Ed.2d 554; Pet. for Cert. in Northcross v. Memphis Board of Education, 397 U.S. 232, 90 S.Ct. 891, 25 L.Ed.2d 246; Tinker v. Des Moines Independent School District, supra, 393 U.S., at 504, 89 S.Ct., at 735; McNeese v. Board of Education, supra, 373 U.S., at 671, 83 S.Ct., at 1435.
7
However, we do uphold Monroe v. Pape, insofar as it holds that the doctrine of respondeat superior is not a basis for rendering municipalities liable under § 1983 for the constitutional torts of their employees. See Part II, infra.
8
We expressly declined to consider "policy considerations" for or against municipal liability. See 365 U.S., at 191, 81 S.Ct., at 495.
9
Mr. Justice Douglas, the author of Monroe, has suggested that the municipal exclusion might more properly rest on a theory that Congress sought to prevent the financial ruin that civil rights liability might impose on municipalities. See City of Kenosha v. Bruno, 412 U.S. 507, 517-520, 93 S.Ct. 2222, 37 L.Ed.2d 109 (1973). However, this view has never been shared by the Court, see Monroe v. Pape, 365 U.S., at 190, 81 S.Ct., at 494; Moor v. County of Alameda, 411 U.S. 693, 708, 93 S.Ct. 1785, 1795, 36 L.Ed.2d 596 (1973), and the debates do not support this position.
10
Globe 522.
11
Briefly, § 2 created certain federal crimes in addition to those defined in § 2 of the 1866 Civil Rights Act, 14 Stat. 27, each aimed primarily at the Ku Klux Klan. Section 3 provided that the President could send the militia into any State wracked with Klan violence. Finally, § 4 provided for suspension of the writ of habeas corpus in enumerated circumstances, again primarily those thought to obtain where Klan violence was rampant. See Cong. Globe, 42d Cong., 1st Sess., App. 335-336 (1871) (hereinafter Globe App.).
12
Globe 709.
13
See id., at 663, quoted in Appendix to this opinion, infra, at 702-703.
14
Ibid. An action for recovery of damages was to be in the federal courts and denominated as a suit against the county, city, or parish in which the damage had occurred. Ibid. Execution of the judgment was not to run against the property of the government unit, however, but against the private property of any inhabitant. Ibid.
15
See Globe 749 and 755, quoted in Appendix to this opinion, infra, at 703-704.
16
"Let the people of property in the southern States understand that if they will not make the hue and cry and take the necessary steps to put down lawless violence in those States their property will be holden responsible, and the effect will be most wholesome." Globe 761.
Senator Sherman was apparently unconcerned that the conference committee substitute, unlike the original amendment, did not place liability for riot damage directly on the property of the well-to-do, but instead placed it on the local government. Presumably he assumed that taxes would be levied against the property of the inhabitants to make the locality whole.
17
According to Senator Sherman, the law had originally been adopted in England immediately after the Norman Conquest and had most recently been promulgated as the law of 7 & 8 Geo. 4, ch. 31 (1827). See Globe 760. During the course of the debates, it appeared that Kentucky, Maryland, Massachusetts, and New York had similar laws. See id., at 751 (Rep. Shellabarger); id., at 762 (Sen. Stevenson); id., at 771 (Sen. Thurman); id., at 792 (Rep. Butler). Such a municipal liability was apparently common throughout New England. See id., at 761 (Sen. Sherman).
18
In the Senate, opponents, including a number of Senators who had voted for § 1 of the bill, criticized the Sherman amendment as an imperfect and impolitic rendering of the state statutes. Moreover, as drafted, the conference substitute could be construed to protect rights that were not protected by the Constitution. A complete critique was given by Senator Thurman. See Globe 770-772.
19
See 365 U.S., at 190, 81 S.Ct., at 494, quoted supra, at 664.
20
See Globe 804, quoted in Appendix to this opinion, infra, at 704.
21
See Globe 758 (Sen. Trumbull); id., at 772 (Sen. Thurman); id., at 791 (Rep. Willard). The Supreme Court of Indiana had so held in giving effect to the Civil Rights Act of 1866. See Smith v. Moody, 26 Ind. 299 (1866) (following Coryell ), one of three State Supreme Court cases referred to in Globe App. 68 (Rep. Shellabarger). Moreover, § 2 of the 1871 Act as passed, unlike § 1, prosecuted persons who violated federal rights whether or not that violation was under color of official authority, apparently on the theory that Ku Klux Klan violence was infringing the right of protection defined by Coryell. Nonetheless, opponents argued that municipalities were not generally charged by the States with keeping the peace and hence did not have police forces, so that the duty to afford protection ought not devolve on the municipality, but on whatever agency of state government was charged by the State with keeping the peace. See infra, at 673, and n. 30. In addition, they argued that Congress could not constitutionally add to the duties of municipalities. See infra, at 673-678.
22
U.S.Const., Art. IV, § 2, cl. 2:
"A person charged in any State with Treason, Felony, or other Crime, who shall flee from Justice, and be found in another State, shall on Demand of the executive Authority of the State from which he fled, be delivered up, to be removed to the State having Jurisdiction of the Crime."
23
Id., cl. 3:
"No Person held to Service or Labour in one State, under the Laws thereof, escaping into another, shall, in Consequence of any Law or Regulation therein, be discharged from such Service or Labour, but shall be delivered up on Claim of the Party to whom such Service or Labour may be due."
24
Id., cl. 1.
25
See Globe 751. See also id., at 760 (Sen. Sherman) ("If a State may . . . pass a law making a county . . . responsible for a riot in order to deter such crime, then we may pass the same remedies . . .").
26
Id., at 751; see n. 17, supra.
27
Globe 751 (emphasis added). Compare this statement with Representative Poland's remark upon which our holding in Monroe was based. See supra, at 664.
28
See, e. g., Gelpcke v. City of Dubuque, 68 U.S. 175, 1 Wall. 175, 17 L.Ed. 519 (1864); Von Hoffman v. City of Quincy, 71 U.S. 535, 4 W all. 535, 18 L.Ed. 403 (1867); Riggs v. Johnson County, 73 U.S. 166, 6 Wall. 166, 18 L.Ed. 768 (1868); Weber v. Lee County, 73 U.S. 210, 6 W all. 210, 18 L.Ed. 781 (1868); Supervisors v. Rogers, 74 U.S. 175, 7 W all. 175, 19 L.Ed. 162 (1869); Benbow v. Iowa City, 74 U.S. 313, 7 W all. 313, 19 L.Ed. 79 (1869); Supervisors v. Durant, 76 U.S. 415, 9 W all. 415, 19 L.Ed. 732 (1870). See generally 6 C. Fairman, History of the Supreme Court of the United States: Reconstruction and Reunion, 1864-1888, chs. 17-18 (1971).
29
See Globe 751-752.
30
Others taking a view similar to Representative Blair's included: Representative Willard, see id., at 791; Representative Poland, see id., at 794; Representative Burchard, see id., at 795; Representative Farnsworth, see id., at 799. Representative Willard also took a somewhat different position. He thought that the Constitution would not allow the Federal
Government to dictate the manner in which a State fulfilled its obligation of protection. That is, he thought it a matter of state discretion whether it delegated the peacekeeping power to a municipal or county corporation, to a sheriff, etc. He did not doubt, however, that the Federal Government could impose on the States the obligation imposed by the Sherman amendment, and presumably he would have enforced the amendment against a municipal corporation to which the peacekeeping obligation had been delegated. See id., at 791.
Opponents of the Sherman amendment in the Senate agreed with Blair that Congress had no power to pass the Sherman amendment because it fell outside limits on national power implicit in the federal structure of the Constitution and recognized in, e. g., Collector v. Day, 11 Wall. 113, 20 L.Ed. 122 (1871). However, the Senate opponents focused not on the amendment's attempt to obligate municipalities to keep the peace, but on the lien created by the amendment, which ran against all money and property of a defendant municipality, including property held for public purposes, such as jails or courthouses. Opponents argued that such a lien once entered would have the effect of making it impossible for the municipality to function, since no one would trade with it. See, e. g., Globe 762 (Sen. Stevenson); id., at 763 (Sen. Casserly). Moreover, everyone knew that sound policy prevented execution against public property since this, too, was needed if local government was to survive. See, e. g., ibid. See also Meriwether v. Garrett, 102 U.S. 472, 501, 513, 26 L.Ed. 197 (1880) (recognizing principle that public property of a municipality was not subject o execution); 2 J. Dillon, The Law of Municipal Corporations §§ 445-446 (1873 ed.) (same).
Although the arguments of the Senate opponents appear to be a correct analysis of then-controlling constitutional and common-law principles, their arguments are not relevant to an analysis of the constitutionality of § 1 of the Civil Rights Act since any judgment under that section, as in any civil suit in the federal courts in 1871, would have been enforced pursuant to state laws under the Process Acts of 1792 and 1828. See Act of May 8, 1792, ch. 36, 1 Stat. 275; Act of May 19, 1828, 4 Stat. 278.
31
See n. 30, supra.
32
In addition to the cases discussed in the text, see Lane County v. Oregon, 7 Wall. 71, 77, 81, 19 L.Ed. 101 (1869), in which the Court held that the federal Legal Tender Acts should not be construed to require the States to accept taxes tendered in United States notes since this might interfere with a legitimate state activity.
33
Mr. Chief Justice Taney agreed:
"The state officers mentioned in the law [of 1793] are not bound to execute the duties imposed upon them by Congress, unless they choose to do so, or are required to do so by a law of the state; and the state legislature has the power, if it thinks proper, to prohibit them. The act of 1793, therefore, must depend altogether for its execution upon the officers of the United States named in it." 16 Pet., at 630 (concurring in part).
34
See supra, at 670, and n. 21.
35
"Be it enacted . . . That whenever the executi e authority of any state in the Union . . . shall demand any person as a fugitive from justice . . . and shall moreover produce the copy of an indictment found . . . charging the person so demanded, with having committed treason, felony or other crime, certified as authentic by the governor or chief magistrate of the state . . . from whence the person so charged fled, it shall be the duty of the executive authority of the state or territory to which such person shall have fled, to cause him or her to be arrested and secured . . . and to cause the fugitive to be delivered to such agent [of the demanding State] when he shall appear . . . ." 1 Stat. 302.
36
"The Supreme Court of the United States has decided repeatedly that Congress can impose no duty on a State officer." Globe 799 (Rep. Farnsworth). See also id., at 788-789 (Rep. Kerr).
37
See, e. g., id., at 764 (Sen. Davis); ibid. (Sen. Casserly); id., at 772 (Sen. Thurman) (reciting logic of Day ); id., at 777 (Sen. Frelinghuysen); id., at 788-789 (Rep. Kerr) (reciting logic of Day ); id., at 793 (Rep. Poland); id., at 799 (Rep. Farnsworth) (also reciting logic of Day ).
38
Warren v. Paul, 22 Ind. 276 (1864); Jones v. Estate of Keep, 19 Wis. 369 (1865); Fifield v. Close, 15 Mich. 505 (1867); Union Bank v. Hill, 43 Tenn. 325 (1866); Smith v. Short, 40 Ala. 385 (1867).
39
See Globe 764 (Sen. Davis); ibid. (Sen. Casserly). See also T. Cooley, Constitutional Limitations *483-*484 (1871 ed.).
40
See cases cited in n. 28, supra. Since this Court granted unquestionably "positive" relief in Contract Clause cases, it appears that the distinction between the Sherman amendment and those cases was not that the former created a positive obligation whereas the latter imposed only a negative restraint. Instead, the distinction must have been that a violation of the Constitution was the predicate for "positive" relief in the Contract Clause cases, whereas the Sherman amendment imposed damages without regard to whether a local government was in any way at fault for the breach of the peace for which it was to be held for damages. See supra, at 668. While no one stated this distinction expressly during the debates, the inference is strong that Congressmen in 1871 would have drawn this distinction since it explains why Representatives Poland, Burchard, and Willard, see supra, at 680, could oppose the amendment while at the same time saying that the Federal Government might impose damages on a local government that had defaulted in a state-imposed duty to keep the peace, and it also explains why everyone agreed that a state or municipal officer could constitutionally be held liable under § 1 for violations of the Constitution. See infra, at 682-683.
41
See, e. g., Globe 334 (Rep. Hoar); id., at 365 (Rep. Arthur); id., at 367-368 (Rep. Sheldon); id., at 385 (Rep. Lewis); Globe App. 217 (Sen. Thurman). In addition, officers were included among those who could be sued under the second conference substitute for the Sherman amendment. See Globe 805 (exchange between Rep. Willard and Rep. Shellabarger). There were no constitutional objections to the second report.
42
See id., at 795 (Rep. Blair); id., at 788 (Rep. Kerr); id., at 795 (Rep. Burchard); id., at 799 (Rep. Farnsworth).
43
"[W]e cannot command a State officer to do any duty whatever, as such; and I ask . . . the difference between that and commanding a municipality . . . ." Id., at 795.
44
See Globe App. 216-217, quoted in n.45, infra. In 1880, moreover, when the question of the limits of the Prigg principle was squarely presented in Ex parte Virginia, 100 U.S. 339, 25 L.Ed. 676, this Court held that Dennison and Day and the principle of federalism for which they stand did not prohibit federal enforcement of § 5 of the Fourteenth Amendment through suits directed to state officers. See 100 U.S., at 345-348.
45
Representative Bingham, the author of § 1 of the Fourteenth Amendment, for example, declared the bill's purpose to be "the enforcement . . . of the Constitution on behalf of every individual citizen of the Republic . . . to the extent of the rights guarantied to him by the Constitution." Globe App. 81. He continued:
"The States never had the right, though they had the power, to inflict wrongs upon free citizens by a denial of the full prot ction of the laws . . . [And] the States did deny to citizens the equal protection of the laws, they did deny the rights of citizens under the Constitution, and except to the extent of the express limitations upon the States, as I have shown, the citizen had no remedy. . . . They took property without compensation, and he had no remedy. They restricted the freedom of the press, and he had no remedy. They restricted the freedom of speech, and he had no remedy. They restricted the rights of conscience, and he had no remedy. . . . Who dare say, now that the Constitution has been amended, that the nation cannot by law provide against all such abuses and denials of right as these in the States and by States, or combinations of persons?" Id., at 85.
Representative Perry, commenting on Congress' action in passing the civil rights bill also stated:
"Now, by our action on this bill we have asserted as fully as we can assert the mischief intended to be remedied. We have asserted as clearly as we can assert our belief that it is the duty of Congress to redress that mischief. We have also asserted as fully as we can assert the constitutional right of Congress to legislate." Globe 800.
See also id., at 376 (Rep. Lowe); id., at 428-429 (Rep. Beatty); id., at 448 (Rep. Butler); id., at 475-477 (Rep. Dawes); id., at 578-579 (Sen. Trumbull); id., at 609 (Sen. Pool); Globe App. 182 (Rep. Mercur).
Other supporters were quite clear that § 1 of the Act extended a remedy not only where a State had passed an unconstitutional statute, but also
where officers of the State were deliberately indifferent to the rights of black citizens:
"But the chief complaint is . . . [that] by a systematic maladministration of [state law], or a neglect or refusal to enforce their provisions, a portion of the people are denied equal protection under them. Whenever such a state of facts is clearly made out, I believe [§ 5 of the Fourteenth Amendment] empowers Congress to step in and provide for doing justice to those persons who are thus denied equal protection." Id., at 153 (Rep. Garfield). See also Monroe v. Pape, 365 U.S., at 171-187, 81 S.Ct., at 475-484.
Importantly for our inquiry, even the opponents of § 1 agreed that it was constitutional and, further, that it swept very broadly. Thus, Senator Thurman, who gave the most exhaustive critique of § 1, said:
"This section relates wholly to civil suits. . . . Its whole effect is to give to the Federal Judiciary that which now does not belong to it—a jurisdiction that may be constitutionally conferred upon it, I grant, but that has never yet been conferred upon it. It authorizes any person who is deprived of any right, privilege, or immunity secured to him by the Constitution of the United States, to bring an action against the wrong-doer in the Federal courts, and that without any limit whatsoever as to the amount in controversy. . . .
* * * * *
"[T]here is no limitation whatsoever upon the terms that are employed [in the bill], and they are as comprehensive as can be used." Globe App. 216-217 (emphasis added).
46
See 2 J. Story, Commentaries on the Constitution of the United States § 1956 (T. Cooley ed. 1873).
47
Indeed the federal courts found no obstacle to awards of damages against municipalities for common-law takings. See Sumner v. Philadelphia, 23 F.Cas. 392 (No. 13,611) (CC ED Pa.1873) (awarding damages of $2,273.36 and costs of $346.35 against the city of Philadelphia).
48
Nonetheless, suits could be brought in federal court if the natural persons who were members of the corporation were of diverse citizenship from the other parties to the litigation. See 5 Cranch, at 91.
49
See n. 28, supra.
50
See, e. g., Globe 777 (Sen. Sherman); id., at 752 (Rep. Shellabarger) ("[C]ounties, cities, and corporations of all sorts, after years of judicial conflict, have become thoroughly established to be an individual or person or entity of the personal existence, of which, as a citizen, individual, or inhabitant, the United States Constitution does take note and endow with faculty to sue and be sued in the courts of the United States").
51
See Northwestern Fertilizing Co. v. Hyde Park, 18 Fed.Cas. pp. 393, 94 (No. 10,336) (CC ND Ill.1873); 2 J. Kent, Commentaries on American Law 2 *278-*279 (12th O. W. Holmes ed. 1873). See also United States v. Maurice, 26 Fed.Cas.No. 15,747, 2 Brock. 96, 109 (CC Va.1823) (Marshall, C. J.) ("The United States is a government, and, consequently, a body politic and corporate"); Apps. D and E to Brief for Petitioners in Monroe v. Pape, O.T. 1960, No. 39 (collecting state statutes which, in 1871, defined municipal corporations as bodies politic and corporate).
52
The court also noted that there was no discernible reason why persons injured by municipal corporations should not be able to recover. See 18 F., at 394.
53
In considering the effect of the Act of Feb. 25, 1871, in Monroe, however, Mr. Justice Douglas, apparently focusing on the word "may," stated: "[T]his definition [of person] is merely an allowable, not a mandatory, one." 365 U.S., at 191, 81 S.Ct., at 486. A review of the legislative history of the Dictionary Act shows this conclusion to be incorrect.
There is no express reference in the legislative history to the definition of "person," but Senator Trumbull, the Act's sponsor, discussed the phrase "words importing the masculine gender may be applied to females," (emphasis added), which immediately precedes the definition of "person," and stated:
"The only object [of the Act] is to get rid of a great deal of verbosity in our statutes by providing that when the word 'he' is used it shall include females as well as males." Cong. Globe, 41st Cong., 3d Sess., 775 (1871) (emphasis added).
Thus, in Trumbull's view the word "may" meant "shall." Such a mandatory use of the extended meanings of the words defined by the Act is also required for it to perform its intended function to be a guide to "rules of construction" of Acts of Congress. See ibid. (remarks of Sen. Trumbull). Were the defined words "allowable, [but] not mandatory" constructions, as Monroe suggests, there would be no "rules" at all. Instead, Congress must have intended the definitions of the Act to apply across-the-board except where the Act by its terms called for a deviation from this practice—"[where] the context shows that [defined] words were to be used in a more limited sense." Certainly this is how the Northwestern Fertilizing court viewed the matter. Since there is nothing in the "context" of § 1 of the Civil Rights Act calling for a restricted interpretation of the word "person," the language of that section should prima facie be construed to include "bodies politic" among the entities that could be sued.
54
There is certainly no constitutional impediment to municipal liability. "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." Milliken v. Bradley, 433 U.S. 267, 291, 97 S.Ct. 2749, 2762, 53 L.Ed.2d 745 (1977); see Ex parte Virginia, 100 U.S., at 347-348, 25 L.Ed. 676. For this reason, National League of Cities v. Usery, 426 U.S. 833, 96 S.Ct. 2465, 49 L.Ed.2d 245 (1976), is irrelevant to our consideration of this case. Nor is there any basis for concluding that the Eleventh Amendment is a bar to municipal liability. See, e. g., Fitzpatrick v. Bitzer, 427 U.S. 445, 456, 96 S.Ct. 2666, 49 L.Ed.2d 614 (1976); Lincoln County v. Luning, 133 U.S. 529, 530, 10 S.Ct. 363, 33 L.Ed. 766 (1890). Our holding today is, of course, limited to local government units which are not considered part of the State for Eleventh Amendment purposes.
55
Since official-capacity suits generally represent only another way of pleading an action against an entity of which an officer is an agent—at least where Eleventh Amendment considerations do not control analysis—our holding today that local governments can be sued under § 1983 necessarily decides that local government officials sued in their official capacities are "persons" under § 1983 in those cases in which, as here, a local government would be suable in its own name.
56
See also Mr. Justice Frankfurter's statement for the Court in Nashville, C. & St. L. R. Co. v. Browning, 310 U.S. 362, 369, 60 S.Ct. 968, 972, 84 L.Ed. 1254 (1940):
"It would be a narrow conception of jurisprudence to confine the notion of 'laws' to what is found written on the statute books, and to disregard the gloss which life has written upon it. Settled state practice . . . can establish what is state law. The Equal Protection Clause did not writ an empty formalism into the Constitution. Deeply embedded traditional ways of carrying out state policy, such as those of which petitioner complains, are often tougher and truer law than the dead words of the written text."
57
Support for such a conclusion can be found in the legislative history. As we have indicated, there is virtually no discussion of § 1 of the Civil Rights Act. Again, however, Congress' treatment of the Sherman amendment gives a clue to whether it would have desired to impose respondeat superior liability.
The primary constitutional justification for the Sherman amendment was that it was a necessary and proper remedy for the failure of localities to protect citizens as the Privileges or Immunities Clause of the Fourteenth Amendment required. See supra, at 670-673. And according to Sherman, Shellabarger, and Edmunds, the amendment came into play only when a locality was at fault or had knowingly neglected its duty to provide protection. See Globe 761 (Sen. Sherman); id., at 756 (Sen. Edmunds); id., at 751-752 (Rep. Shellabarger). But other proponents of the amendment apparently viewed it as a form of vicarious liability for the unlawful acts of the citizens of the locality. See id., at 792 (Rep. Butler). And whether intended or not, the amendment as drafted did impose a species of vicarious liability on municipalities since it could be construed to impose liability even if a municipality did not know of an impending or ensuing riot or did not have the wherewithal to do anything about it. Indeed, the amendment held a municipality liable even if it had done everything in its power to curb the riot. See supra, at 668; Globe 761 (Sen. Stevenson); id., at 771 (Sen. Thurman); id., at 788 (Rep. Kerr); id., at 791 (Rep. Willard). While the first conference substitute was rejected principally on constitutional grounds see id., at 804 (Rep. Poland), it is plain from the text of the second conference substitute—which limited liability to those who, having the power to intervene against Ku Klux Klan violence, "neglect[ed] or refuse[d] so to do," see Appendix to this opinion, infra, at 704, and which was enacted as § 6 of the 1871 Act and is now codified as 42 U.S.C. § 1986—that Congress also rejected those elements of vicarious liability contained in the first conference substitute even while accepting the basic principle that the inhabitants of a community were bound to provide protection against the Ku Klux Klan. Strictly speaking, of course, the fact that Congress refused to impose vicarious liability for the wrongs of a few private citizens does not conclusively establish that it would similarly have refused to impose vicarious liability for the torts of a municipality's employees. Nonetheless, when Congress' rejection of the only form of vicarious liability presented to it is combined with the absence of any language in § 1983 which can easily be construed to create respondeat superior liability, the inference that Congress did not intend to impose such liability is quite strong.
58
A third justification, often cited but which on examination is apparently insufficient to justify the doctrine of respondeat superior, see, e. g., 2 F. Harper & F. James, § 26.3, is that liability follows the right to control the actions of a tortfeasor. By our decision in Rizzo v. Goode, 423 U.S. 362, 96 S.Ct. 598, 46 L.Ed.2d 561 (1976), we would appear to have decided that the mere right to control without any control or direction having been exercised and without any failure to supervise is not enough to support § 1983 liability. See 423 U.S., at 370-371, 96 S.Ct., at 602.
59
Each case cited by Monroe, see 365 U.S., at 191 n. 50, 81 S.Ct. 495 as consistent with the position that local governments were not § 1983 "persons" reached its conclusion by assuming that state-law immunities overrode the § 1983 cause of action. This has never been the law.
60
Although many suits against school boards also include private individuals as parties, the "principal defendant is usually the local board of education or school board." Milliken v. Bradley, 433 U.S., at 292-293, 97 S.Ct. at 2763 (Powell, J., concurring in judgment).
61
Moor v. County of Alameda, 411 U.S. 693, 93 S.Ct. 1785, 36 L.Ed.2d 596 (1973); City of Kenosha v. Bruno, 412 U.S. 507, 93 S.Ct. 2222, 37 L.Ed.2d 109 (1973); Aldinger v. Howard, 427 U.S. 1, 96 S.Ct. 2413, 49 L.Ed.2d 276 (1976).
62
During the heyday of the furor over busing, both the House and the
Senate refused to adopt bills that would have removed from the federal courts jurisdiction
"to make any decision, enter any judgment, or issue any order requiring any school board to make any change in the racial composition of the student body at any public school or in any class at any public school to which students are assigned in conformity with a freedom of choice system, or requiring any school board to transport any students from one public school to another public school or from one place to another place or from one school district to another school district in order to effect a change in the racial composition of the student body at any school or place or in any school district, or denying to any student the right or privilege of attending any public school or class at any public school chosen by the parent of such student in conformity with a freedom of choice system, or requiring any school board to close any school and transfer the students from the closed school to any other school for the purpose of altering the racial composition of the student body at any public school, or precluding any school board from carrying into effect any provision of any contract between it and any member of the faculty of any public school it operates specifying the public school where the member of the faculty is to perform his or her duties under the contract." S. 1737, 93d Cong., 1st Sess., § 1207 (1973) (emphasis added).
Other bills designed either completely to remove the federal courts from the school desegregation controversy, S. 287, 93d Cong., 1st Sess. (1973), or to limit the ability of federal courts to subject school boards to remedial orders in desegregation cases, S. 619, 93d Cong., 1st Sess. (1973); S. 179, 93d Cong., 1st Sess., § 2(a) (1973); H.R. 13534, 92d Cong., 2d Sess., § 1 (1972), have similarly failed.
63
In 1972, spurred by a finding "that the process of eliminating or preventing minority group isolation and improving the quality of education for all children often involves the expenditure of additional funds to which local educational agencies do not have access," 86 Stat. 354, 20 U.S.C. § 1601(a) (1976 ed.), Congress passed the Emergency School Aid Act. Section 706(a)(1)(A)(i) of that Act, 20 U.S.C. § 1605(a)(1)(A)(i) (1976 ed.), authorizes the Assistant Secretary
"to make a grant to, or a contract with, a local educational agency [w]hich is implementing a plan . . . which has been undertaken pursuant to a final
order issued by a court of the United States . . . which requires the desegregation of minority group segregated children or faculty in the elementary and secondary schools of such agency, or otherwise requires the elimination or reduction of minority group isolation in such schools." (Emphasis added.)
A "local educational agency" is defined by 20 U.S.C. § 1619(8) (1976 ed.) as "a public board of education or other public authority legally constituted within a State for either administrative control or direction of, public elementary or secondary schools in a city, county, township, school district, or other political subdivision of a State, or a federally recognized Indian reservation, or such combination of school districts, or counties as are recognized in a State as an administrative agency for its public elementary or secondary schools, or a combination of local educational agencies . . . ." Congress thus clearly recognized that school boards were often parties to federal school desegregation suits. In § 718 of the Act, 86 Stat. 369, 20 U.S.C. § 1617 (1976 ed.), Congress gave its explicit approval to the institution of federal desegregation suits against school boards presumably under § 1983. Section 718 provides:
"Upon the entry of a final order by a court of the United States against a local educational agency . . . for discrimination on the basis of race, color, or national origin in violation of . . . the fourteenth amendment to the Constitution of the United States . . . the court . . . may allow the prevailing party, other than the United States, a reasonable attorney's fee as part of the costs." (Emphasis added.)
Two years later in the Equal Educational Opportunities Act of 1974, Congress found that "the implementation of desegregation plans that require extensive student transportation has, in many cases, required local educational agencies to expend large amounts of funds, thereby depleting their financial resources . . . ." 20 U.S.C. § 1702(a)(3) (1976 ed.). (Emphasis added.) Congress did not respond by declaring that sc ool boards were not subject to suit under § 1983 or any other federal statute, "but simply [legislated] revised evidentiary standards and remedial priorities to be employed by the courts in deciding such cases." Brief for National Education Assn., et al. as Amici Curiae 15-16. Indeed, Congress expressly reiterated that a cause of action, cognizable in the federal courts, exists for discrimination in the public school context. 20 U.S.C. §§ 1703,
1706, 1708, 1710, 1718 (1976 ed.). The Act assumes that school boards will usually be the defendants in such suits. For example, § 211 of the Act, 88 Stat. 516, as set forth in 20 U.S.C. § 1710 (1976 ed.), provides:
"The Attorney General shall not institute a civil action under section 1706 of this title [which allows for suit by both private parties and the Attorney General to redress discrimination in public education] before he—
"(a) gives to the appropriate educational agency notice of the condition or conditions which, in his judgment, constitute a violation of part 2 [the prohibitions against discrimination in public education]." Section 219 of the Act, 20 U.S.C. § 1718 (1976 ed.), provides for the termination of court-ordered busing "if the court finds the defendant educational agency has satisfied the requirements of the fifth or fourteenth amendments to the Constitution, whichever is applicable, and will continue to be in compliance with the requirements thereof."
64
Whether Congress' attempt is in fact effective is the subject of Hutto v. Finney, O.T.1977, No. 76-1660, cert. granted, 434 U.S. 901, 98 S.Ct. 295, 54 L.Ed.2d 187, and therefore we express no view on it here.
65
We note, however, that Mr. Justice Harlan's test has not been expressly adopted by this Court. Moreover, that test is based on two factors: stare decisis and "indications of congressional acceptance of this Court's earlier interpretation [of the statute in question]." 365 U.S., at 192, 81 S.Ct., at 487. As we have explained, the second consideration is not present in this case.
66
No useful purpose would be served by an attempt at this late date to determine whether Monroe was correct on its facts. Similarly, since this case clearly involves official policy and does not involve respondeat superior, we do not assay a view on how our cases which have relied on that aspect of Monroe that is overruled today—Moor v. County of Alameda, 411 U.S. 693, 93 S.Ct. 1785, 36 L.Ed.2d 596 (1973); City of Kenosha v. Bruno, 412 U.S. 507, 93 S.Ct. 2222, 37 L.Ed.2d 109 (1973); and Aldinger v. Howard, 427 U.S. 1, 96 S.Ct. 2413, 49 L.Ed.2d 276 (1976)—should have been decided on a correct view of § 1983. Nothing we say today affects the conclusion reached in Moor, see 411 U.S., at 703-704, 93 S.Ct. 1785, that 42 U.S.C. § 1988 cannot be used to create a federal cause of action where § 1983 does not otherwise provide one, or the conclusion reached in City of Kenosha, see 412 U.S., at 513, 93 S.Ct., at 2226 that "nothing . . . suggest[s] that the generic word 'person' in § 1983 was intended to have a bifurcated application to municipal corporations depending on the nature of the relief sought against them."
1
The gravamen of the complaint in Monroe was that Chicago police officers acting "under color of" state law had conducted a warrantless, early morning raid and ransacking of a private home. Although at least one of the allegations in the complaint could have been construed to charge a custom or usage of the Police Department of the city of Chicago that did not violate state law, see 365 U.S., at 258-259, 81 S.Ct. 473 (Frankfurter, J., dissenting in part), and there is a hint of such a theory in Brief for Petitioners, O.T.1960, No. 39, pp. 41-42, that feature of the case was not highlighted in this Court. The dispute that divided the Court was over whether a complaint alleging police misconduct in violation of state law, for which state judicial remedies were available, stated a § 1983 claim in light of the statutory requirement that the conduct working injury be "under color of" state law. Compare 365 U.S., at 172-183, 81 S.Ct. 473 (opinion of the Court), and id., at 193-202, 81 S.Ct. 473 (Harlan, J., concurring), with id., at 202-259, 81 S.Ct. 473 (Frankfurter, J., dissenting in part).
2
If in the view of House opponents, such as Representatives Poland, Burchard, and Willard, see ante, at 679-680, a municipality obligated by state law to keep the peace could be held liable for a failure to provide equal protection against private violence, it seems improbable that they would have opposed imposition of liability on a municipality for the affirmative implementation of policies promulgated within its proper sphere of operation under state law. Such liability is promised not on a failure to take affirmative action in an area outside the contemplation of the state-law charter—the sort of liability that would have been imposed by the Sherman amendment—but on the consequences of activities actually undertaken within the scope of the powers conferred by state law.
3
The view taken today is consistent with the understanding of the 42d Congress that unless the context revealed a more limited definition, "the word 'person' may extend and be applied to bodies politic and corporate . . . ." Act of Feb. 25, 1871, § 2, 16 Stat. 431. It also accords with the interpretation given the same word when it was used by Senator Sherman in the antitrust legislation of 1890 bearing his name. See Lafayette v. Louisiana Power & Light Co., 435 U.S. 389, 98 S.Ct. 1123, 55 L.Ed.2d 364 (1978) (plurality opinion); Chattanooga Foundry v. Atlanta, 203 U.S. 390, 396, 27 S.Ct. 65, 51 L.Ed. 241 (1906); cf. Pfizer, Inc. v. Government of India, 434 U.S. 308, 98 S.Ct. 585, 54 L.Ed.2d 563 (1978).
4
See, e. g., Continental T.V., Inc. v. GTE Sylvania Inc., 433 U.S. 36, 97 S.Ct. 2549, 53 L.Ed.2d 568 (1977); Machinists v. Wisconsin Emp. Rel. Comm'n, 427 U.S. 132, 96 S.Ct. 2548, 49 L.Ed.2d 396 (1976); Braden v. 30th Judicial Circuit Court of Ky., 410 U.S. 484, 93 S.Ct. 1123, 35 L.Ed.2d 443 (1973); Griffin v. Breckenridge, 91 S.Ct. 1790, 29 L.Ed.2d 338, 403 U.S. 88 (1971); Boys Markets, Inc. v. Retail Clerks Union, 398 U.S. 235, 90 S.Ct. 1583, 26 L.Ed.2d 199 (1970); Burnet v. Coronado Oil & Gas Co., 285 U.S. 393, 406-407, n. 1, 52 S.Ct. 443, 76 L.Ed. 815 (1932) (Brandeis, J., dissenting).
5
The District Court in Monroe ruled in the municipality's favor, stating: "[S]ince the liability of the City of Chicago is based on the doctrine of respondeat superior, and since I have already held that the complaint fails to state a claim for relief against the agents of the city, there is no claim for relief against the city itself." Record, O.T.1960, No. 39, p. 30. The Court of Appeals affirmed for the same reason. 272 F.2d 365-366 (CA7 1959).
Petitioners in this Court also offered an alternative argument that the city of Chicago was a "person" for purposes of § 1983, Brief for Petitioners, O.T.1960, No. 39, p. 25, but the underlying theory of municipal liability remained one of respondeat superior.
6
The doctrine of stare decisis advances two important values of a rational system of law: (i) the certainty of legal principles and (ii) the wisdom of the conservative vision that existing rules should be presumed rational and not subject to modification "at any time a new thought seems appealing," dissenting opinion of Mr. Justice Rehnquist, post, at 718; cf. O. Holmes, The Common Law 36 (1881). But, at the same time, the law has recognized the necessity of change, lest rules "simply persis[t] from blind imitation of the past." Holmes, The Path of the Law, 10 Harv. L. Rev. 457, 469 (1897). Any overruling of prior precedent, whether of a constitutional decision or otherwise, disserves to some extent the value of certainty. But I think we owe somewhat less deference to a decision that was rendered without benefit of a full airing of all the relevant considerations. That is the premise of the canon of interpretation that language in a decision not necessary to the holding may be accorded less weight in subsequent cases. I also would recognize the fact that until this case the Court has not had to confront squarely the consequences of holding § 1983 inapplicable to official municipal policies.
Of course, the mere fact that an issue was not argued or briefed does not undermine the precedential force of a considered holding. Marbury v. Madison, 1 Cranch 137 (1803), cited by the dissent, post, at 718, is a case in point. But the Court's recognition of its power to invalidate legislation not in conformity with constitutional command was essential to its judgment in Marbury. And on numerous subsequent occasions, the Court has been required to apply the full breadth of the Marbury holding. In Monroe, on the other hand, the Court's rationale was broader than necessary to meet the contentions of the parties and to decide the case in a principled manner. The language in Monroe cannot be dismissed as dicta, but we may take account of the fact that the Court simply was not confronted with the implications of holding § 1983 inapplicable to official municipal policies. It is an appreciation of those implications that has prompted today's re-examination of the legislative history of the 1871 measure.
7
In Aldinger v. Howard, 427 U.S. 1, 16, 96 S.Ct. 2413, 2421, 49 L.Ed.2d 276 (1976), we reaffirmed Monroe, but petitioner did not contest the proposition that counties were excluded from the reach of § 1983 under Monroe, and the question before us concerned the scope of pendent-party jurisdiction with respect to a state-law claim. Similarly, the parties in Mt. Healthy City Board of Ed. v. Doyle, 429 U.S. 274, 97 S.Ct. 568, 50 L.Ed.2d 471 (1977), did not seek a re-examination of our ruling in Monroe.
8
To the extent that the complaints in those cases asserted claims against the individual defendants in their personal capacity, as well as official capacity, the court would have had authority to award the relief requested. There is no suggestion in the opinions, however, that the practices at issue were anything other than official, duly authorized policies.
9
Mr. Justice REHNQUIST's dissent makes a strong argument that "[s]ince Monroe, municipalities have had the right to expect that they would not be held liable retroactively for their officers' failure to predict this Court's recognition of new constitutional rights." Post, at 717. But it reasonably may be assumed that most municipalities already indemnify officials sued for conduct within the scope of their authority, a policy that furthers the important interest of attracting and retaining competent officers, board members, and employees. In any event, the possibility of a qualified immunity, as to which the Court reserves decision, may remove some of the harshness of liability for good-faith failure to predict the often uncertain course of constitutional adjudication.
1
As we pointed out in Mt. Healthy City Board of Ed. v. Doyle, 429 U.S. 274, 278-279, 97 S.Ct. 568, 571-572, 50 L.Ed.2d 471 (1977), the existence of a claim for relief under § 1983 is "jurisdictional" for purposes of invoking 28 U.S.C. § 1343, even though the existence of a meritorious constitutional claim is not similarly required in order to invoke jurisdiction under 28 U.S.C. § 1331. See Bell v. Hood, 327 U.S. 678, 682, 66 S.Ct. 773, 90 L.Ed. 939 (1946).
2
The other statutes cited by the Court, ante, at 697-699, n. 63, make no mention of § 1983, but refer generally to suits against "a local educational agency." As noted by the Court of Appeals, 532 F.2d 259, 264-266, such suits may be maintained against board members in their official capacities for injunctive relief under either § 1983 or Ex parte Young, 209 U.S. 123, 28 S.Ct. 441, 52 L.Ed. 714 (1908). Congress did not stop to consider the technically proper avenue of relief, but merely responded to the fact that relief was being granted. The practical result of choosing the avenue suggested by petitioners would be the subjection of school corporations to liability in damages. Nothing in recent congressional history even remotely supports such a result.
3
I find it somewhat ironic that, in abandoning the supposedly ill-considered holding of Monroe, my Brother Powell relies heavily upon cases involving school boards, although he admits that "the exercise of § 1983 jurisdiction . . . [was] perhaps not premised on considered holdings." Ante, at 711.
4
It has not been generally thought, before today, that § 1983 provided an avenue of relief from unconstitutional takings. Those federal courts which have granted compensation against state and local governments have resorted to an implied right of action under the Fifth and Fourteenth Amendments. Richmond Elks Hall Assn. v. Richmond Redevelopment Agency, 561 F.2d 1327 (CA9 1977), aff'g 389 F.Supp. 486 (N.D.Cal.1975); Foster v. City of Detroit, 405 F.2d 138, 140 (CA6 1968). Since the Court today abandons the holding of Monroe chiefly on the strength of Bingham's arguments, it is indeed anomalous that § 1983 will provide relief only when a local government, not the State itself, seizes private property. See ante, at 690 n. 54; Fitzpatrick v. Bitzer, 427 U.S. 445, 452, 96 S.Ct. 2666, 4 L.Ed.2d 614 (1976); Edelman v. Jordan, 415 U.S. 651, 674-677, 94 S.Ct. 1347, 1361-1363, 39 L.Ed.2d 662 (1974).
| 12
|
436 U.S. 631
98 S.Ct. 2053
56 L.Ed.2d 591
In re TRANS ALASKA PIPELINE RATE CASES.
Nos. 77-452, 77-457, 77-551 and 77-602.
Argued March 28, 1978.
Decided June 6, 1978.
Syllabus
Anticipating completion of the Trans Alaska Pipeline System (TAPS) in mid-1977, seven of its eight owners filed tariffs for the transportation of oil over TAPS with the Interstate Commerce Commission, which at that time had jurisdiction over oil pipelines. Four protestants, respondents here, immediately asked the ICC to suspend the proposed rates, which were claimed to be prima facie unlawful for a number of reasons. Rejecting the carriers' argument that it had no authority under § 15(7) of the Interstate Commerce Act (Act) (which provides that "[w]henever there shall be filed . . . any schedule stating a new individual or joint rate, . . . the Commission . . . may . . . suspend the operation of such schedule") to suspend TAPS's initial rates, the ICC concluded that the rates should be suspended. It then went on to hold that the TAPS carriers could submit interim tariffs, to be effective on one day's notice, which would be allowed to go into effect during the suspension period if the rates proposed in such tariffs were lower than levels summarily fixed by the ICC and if the TAPS carriers would agree to refund any amounts collected under either the interim or initially proposed tariffs which might subsequently (after full hearing) be held to be unlawful. The TAPS carriers petitioned for review of the ICC's order in the Court of Appeals, which affirmed all aspects of the order. Held:
1. Pursuant to § 15(7), the ICC is authorized to suspend initial tariff schedules of an interstate carrier subject to Part I of the Act, as it did here. As against the contention that the word "new" as used in § 15(7) was intended to refer only to increased or changed rates (i. e., rates which replace other rates previously in effect), such word must be given its literal interpretation as applying to services which have never before been offered to the public, thus embracing the initial rates in question in these cases. Pp. 642-652.
2. The ICC has power ancillary to its suspension authority under § 15(7) to establish, without an adjudicatory hearing, maximum interim rates which it would allow to go into effect during the suspension period. By so establishing such interim rates h re, the ICC did not exceed its suspension power but, to the contrary, performed an intelligent and practical exercise of its suspension power in accord with Congress' goal in § 15(7) to strike a fair balance between the needs of the public and the needs of regulated carriers. Pp. 651-654.
3. The ICC, as part of such ancillary power to establish maximum interim rates, has authority, which it properly exercised here, to condition its decision not to suspend tariffs on a requirement that the carriers refund any amounts collected under either interim or initially proposed rates that might later be determined to exceed lawful rates, notwithstanding the absence of express authority in the statute for such refunds. United States v. Chesapeake & Ohio R. Co., 426 U.S. 500, 96 S.Ct. 2318, 49 L.Ed.2d 14. If the ICC's approximations of what would be lawful rates are to be used to meet the carriers' needs, such refund provisions are a necessary and "directly related," id., at 514, 96 S.Ct., at 2325, means of discharging the ICC's mandate to protect the public pending a more complete determination of the reasonableness of the rates, and thus are a "legitimate, reasonable, and direct adjunct to the Commission's explicit statutory power to suspend rates pending investigation," ibid., in that they allow the ICC, in exercising its suspension power, to pursue "a more measured course" and to "offe[r] an alternative tailored far more precisely to the particular circumstances" of these cases. Ibid. Pp. 654-657.
557 F.2d 775, affirmed.
Andrew J. Kilcarr and Richard J. Flynn, Washington, D. C., for petitioners.
Frank H. Easterbrook, Washington, D. C., and Avrum M. Gross, Atty. Gen., Juneau, Alaska, for respondents.
Mr. Justice BRENNAN delivered the opinion of the Court.
1
The primary question presented in these cases is whether the Interstate Commerce Commission is authorized by § 15(7) of the Interstate Commerce Act, as added, 36 Stat. 552, and amended, 49 U.S.C. § 15(7),1 to suspend initial tariff schedules of an interstate carrier subject to Part I of the Act, 24 Stat. 379, as amended, 49 U.S.C. §§ 1-27 (1970 ed. and Supp. V). In addition, we are asked to decide whether, if the Commission is so authorized, it has additional authority summarily to fix maximum interim tariff rates which will be allowed to go into effect during the suspension period and to require carriers filing tariffs containing such rates, as a further condition of nonsuspension, to refund any amounts collected which are ultimately found to be unlawful. We hold that the Commission has statutory authority to suspend initial tariff schedules and that it has power ancillary to that authority to establish maximum interim rates and associated regulations—including refund provisions—as it has done in these cases.
2
* In 1968, massive reservoirs of oil were discovered at Prudhoe Bay in the Alaskan Arctic. Two years later plans crystallized to build a pipeline from Prudhoe Bay to the all-weather port of Valdez on Alaska's Pacific coast. After protracted environmental litigation was ended by special Act of Congress,2 construction of the Trans Alaska Pipeline System (TAPS) began in 1974. In May and Jun 1977, seven of the eight owners of TAPS,3 anticipating completion of TAPS in mid-1977, filed tariffs with the Interstate Commerce Commission4 setting out the rules and rates governing transportation of oil over TAPS. These rates were met immediately by formal protests5 from the State of Alaska,6 the Arctic Slope Regional Corporation,7 the United States Department of Justice,8 and the Commission's Bureau of Investigations and Enforcement.9
3
Acting pursuant to § 15(7) of the Interstate Commerce Act, the Commission10 found that the protests lodged aga nst the TAPS tariffs gave it "reason to believe the proposed rates are not just and reasonable." Trans Alaska Pipeline System, 355 I.C.C. 80, 81 (1977) (TAPS ). In support of this conclusion, it cited the protestants' arguments that the filed rates allowed excessive returns on capital11 and that the cost data provided by the carriers were overstated.12 Dismissing the TAPS carriers' argument that § 15(7) gave the Commission no power to suspend initial rates, the Commission suspended the TAPS rates for the full seven months allowed by law, see 355 I.C.C., at 81-82, citing protestants' showing of "probable unlawfulness," id., at 81, and the Commission's concern that "maintenance of excessively high rates could act as a deterrent or an obstacle to the use of the pipeline by nonaffiliated oil producers, and would also delay the Alaskan interests in obtaining revenues that depend upon the well-head price of the oil." Id., at 82.
4
On the other hand, the Commission found that it would not be in the public interest if TAPS had to close for a seven-month period. Id., at 83. Accordingly, "accept[ing] the basic data supplied by the carriers" as true, ibid., the Commission applied what it stated to be its traditional rate-of-return calculation13 to compute new rates that approximated what full investigation would likely reveal to be lawful rates14 and it stated that it would not suspend interim tariffs which specified rates no higher than those estimated. See id., at 83-86. However, since the estimated rates might still "exceed reasonable levels," the Commission stated that any interim tariffs must provide for refunds of any amounts later determined to be in excess of lawful rates. Id., at 86.15
5
Four pipeline owners, petitioners here,16 filed a petition for review of the Commission's suspension order in the Court of Appeals for the Fifth Circuit. That court determined: (1) that the Commission had the statutory authority to suspend an initial tariff as well as changes in tariffs; (2) that it had authority ancillary to the suspension power to set out, without an adjudicatory hearing, maximum interim rates which it would allow to go into effect during the suspension period; and (3) that it had authority to condition a decision not to suspend tariffs on a requirement that carriers whose tariffs were allowed to go into effect be prepared to make refunds of any amounts collected whether under initially proposed or interim tariffs—which were later determined (after full hearing) to be unlawful. Mobil Alaska Pipeline Co. v. United States, 557 F.2d 775 (1977).
6
Petitioners sought review in this Court and filed applications for a stay of the Commission's suspension order, all relief having been denied by the Fifth Circuit. On October 20, 1977, we granted the applications for a stay, 434 U.S. 913, 98 S.Ct. 383, 54 L.Ed.2d 271, and we issued a supplemental stay order on November 14, 1977. 434 U.S. 949, 98 S.Ct. 475, 54 L.Ed.2d 309. Thereafter we granted certiorari to consider the three issues decided by the Court of Appeals. 434 U.S. 964, 98 S.Ct. 501, 54 L.Ed.2d 449. We affirm.17
II
7
By the Act of Sept. 18, 1940, ch. 722, Tit. I, § 1, 54 Stat. 899, note preceding 49 U.S.C. § 1, Congress declared the National Transportation Policy of the United States to be "to encourage the establishment and maintenance of reasonable charges for transportation services." Part I of the Interstate Commerce Act, 24 Stat. 379, as amended, 49 U.S.C. §§ 1-27 (1970 ed. and Supp. V), which applies to common carriers by rail and pipeline, is one vehicle by which the National Transportation Policy is carried into effect. Under the Act as passed in 1887, however, the role of the Commission in establishing "reasonable charges" was circumscribed. Although § 1 of the Act provided that "[a]ll charges made for any service rendered or to be rendered in the transportation of passengers or property . . . shall be reasonable and just; and every unjust and unreasonable charge for such service is prohibited and declared to be unlawful," 24 Stat. 379, this Court earlier held that the Commission had no authority to set charges, but could only determine if charges set by the carriers were unreasonable or unjust in the context of granting reparations to injured shippers. See ICC v. Cincinnati, N. O. & T. P. R. Co., 167 U.S. 479, 17 S.Ct. 896, 42 L.Ed. 243 (1897); 1 I. Sharfman, The Interstate Commerce Commission 25-27 (1931) (hereinafter Sharfman).
8
In 1906, Congress passed the Hepburn Act, 34 Stat. 584, which, inter alia, augmented the Commission's authority to condemn existing rates as unjust or unreasonable by adding express authority to set maximum rates to be observed by carriers in the future. See 49 U.S.C. § 15. Under the Hepburn Act, however, the Commission could not issue an order affecting a rate until it had become effective. This feature of the Hepburn Act was immediately recognized by the Commission as a major defect. See Sharfman 51 n. 50. It meant that the only relief against unreasonable rates lay in the reparations remedy and this could not provide a satisfactory solution:
9
"In many cases the damage suffered through loss of competitive advantage far exceeds the difference between the rate actually charged and that found to be reasonable by the Commission; and in most instances the burden of the unreasonable rate is borne by a prior producer or is shifted to the ultimate consumer, for whom no redress whatever is available as against the carrier." Id., at 51.
10
See H.R.Rep.No.923, 61st Cong., 2d Sess., 4 (1910), quoting President Taft's special message to Congress on the Interstate Commerce Act;18 S.Rep.No.355, 61st Cong., 2d Sess., 8 (1910);19 United States v. Chesapeake & Ohio R. Co., 426 U.S. 500, 513, and n. 10, 96 S.Ct. 2318, 2325, 49 L.Ed.2d 14 (1976) (Chessie ); Dixon, The Mann-Elkins Act, 24 Q.J.Econ. 593, 602-603 (1910) (hereinafter Dixon). The Commission's Annual Reports also tell us that, as early as 1907, private litigants were able to convince some federal courts to enjoin rate advances after their effective dates but before the Commission was able to complete an investigation as required by the Hepburn Act. See Arrow Transportation Co. v. Southern R. Co., 372 U.S. 658, 663-664, and n. 6, 83 S.Ct. 984, 986-987, and 986 n. 6, 10 L.Ed.2d 52 (1963); Sharfman 50 n. 49. Thus, not only did the Hepburn Act fail to protect the public against unreasonable carrier charges, but the equity litigation spawned by the Act led to discrimination in rates—much like that prohibited by § 1 of the Act—in the situation in which shippers successful in court would be paying one charge while those who were unsucces ful, or who did not have the wherewithal to go to court or to post an injunction bond, were paying higher charges. See Arrow, supra, at 663-664, 83 S.Ct., at 986-987; Sharfman 50 n. 49; Dixon 603.
11
To "provid[e] a 'means . . . for checking at the threshold new adjustments that might subsequently prove to be unreasonable or discriminatory, safeguarding the community against irreparable losses and recognizing more fully that the Commission's essential task is to establish and maintain reasonable charges and proper rate relationships,' " Chessie, supra, 426 U.S., at 513, 96 S.Ct., at 2325, quoting Sharfman 59, Congress passed the Mann-Elkins Act of 1910, 36 Stat. 539. Section 12 of that Act, 36 Stat. 552, amended § 15 of the Interstate Commerce Act to allow the Commission to suspend "any schedule stating a new individual or joint rate, fare, or charge" for a period not to exceed 10 months. The suspension power conferred was intended to be a "particularly potent tool," giving the Commission " 'tremendous power.' " Chessie, supra, at 513, 96 S.Ct., at 2325, quoting 45 Cong.Rec. 3471 (1910) statement of Sen. Elkins speaking on behalf of majority report).
12
Section 15 of the Act, as augmented by the Hepburn and Mann-Elkins Acts, thus works with §§ 1 and 6 of the Act, 49 U.S.C. §§ 1 and 6 (1970 ed. and Supp. V), to give the Commission a complete ratemaking charter. Section 1, as we have indicated above, sets the standard that rates and charges must meet, and § 6—which prohibits a carrier covered by Part I from engaging in interstate transportation unless its rates, fares, and charges have been filed and published and which, in addition, allows changes in any rate, fare, or charge to be made only after notice to the Commission and public through advance filing of schedules showing the proposed changes, see 49 U.S.C. §§ 6(1), 6(3), and 6(7)—insures both that the Commission will have sufficient notice to exercise its suspension power and that no carrier can operate on suspended or disapproved schedules.
III
13
With this background in mind, we turn to the question whether the Commission is authorized by § 15(7) to suspend the initial rates of a common carrier subject to Part I of the Interstate Commerce Act.
14
Section 15(7) states that "[w]henever there shall be filed . . . any schedule stating a new individual or joint rate, fare, or charge, . . . the Commission . . . may from time to time suspend the operation of such schedule . . . ." (Emphasis added.) It is hard to imagine rates any more "new" than those filed for TAPS, a service which has never before been offered. And, since § 15(7) applies to any new rate, there is little room to argue that Congress meant the suspension power not to apply to these cases, although we recognize that the Court of Appeals found that § 15(7) had no plain meaning. See 557 F.2d, at 781.
15
Nonetheless, petitioners argue that "new" does not really mean "new," but refers only to increased or changed rates, i.e., rates which replace other rates previously in effect. As we understand the argument, it draws on three sources. First, it is said that Congress in 1910 was directing its attention solely to the problem of increased railroad rates and, therefore, that the statute should be limited to this a plication. Second, petitioners argue that the only rate schedules the Interstate Commerce Act requires to be filed prior to their effective date are schedules of changed rates. See 49 U.S.C. § 6(3). Since in their view § 15(7) is intended to work in tandem with § 6(3), petitioners conclude that new schedules include only changed schedules. Finally, petitioners point to language added to § 15(7) by § 418 of the Transportation Act of 1920, 41 Stat. 484-487, which they say authoritatively glosses the word "new," limiting it to the increased rate situation. We find these arguments unpersuasive.
A.
16
This Court, in interpreting the words of a statute, has "some 'scope for adopting a restricted rather than a literal or usual meaning of its words where acceptance of that meaning would lead to absurd results . . . or would thwart the obvious purpose of the statute' . . . [b]ut it is otherwise 'where no such consequences would follow and where . . . it appears to be consonant with the purposes of the Act . . . .' " Commissioner v. Brown, 380 U.S. 563, 571, 85 S.Ct. 1162, 1166, 14 L.Ed.2d 75 (1965) (citations omitted). Under this test, a restriction on the "literal or usual meaning" of the word "new" is not warranted by the legislative history of the Mann-Elkins Act.
17
First, petitioners' claim that the Commission is without authority to suspend initial rates is not limited to situations in which proposed initial rates are in some sense reasonable; it is a claim that a carrier can impose any rate it chooses.20 Nor have petitioners pointed to any mechanism which would tend to make initial rates reasonable, and Congress in 1910 concluded that the reparations provisions of the Commerce Act are an insufficient check. Moreover, in these cases, the reparations remedy is particularly ineffective since those who will ship oil over TAPS are almost exclusively parents or cosubsidiaries of TAPS owners.21 Thus, to an indeterminate, but possibly large extent, excess transportation charges to shippers will be offset by excess profits to TAPS owners, creating a wash transaction from the standpoint of parent oil companies. Indeed, it is tellin' limiting it to the increased rate situation. We find tg that no shipper of oil protested the TAPS rates. Instead, as one might predict from experience under the Hepburn Act, see supra, at 640-641, only the public perceives that it will be injured by the proposed TAPS rates and has objected to them. See nn. 6-8, supra. Therefore, in the absence of suspension authority, unreasonable initial rates—both generally and in these cases—like unreasonable increases in existing rates, will almost certainly be passed along to "a prior producer or . . . to the ultimate consumer." Sharfman 51.
18
Second, if the Commission has no authority to suspend initial rates, it follows that Congress cannot have meant to foreclose whatever equity power there is in the courts to enjoin carrier rates. Thus, with respect to initial rates, courts might again reach "diverse conclusions," jeopardizing "the regulatory goal of uniformity," and "causing in turn 'discrimination and hardship to the general public.' " Arrow, 372 U.S., at 664, 83 S.Ct., at 987, quoting ICC Annual Report 10 (1907).22
19
Accordingly, far from reaching an " 'absurd resul[t]' " which would " 'thwart the obvious purpose of the statute,' " Brown, supra, 380 U.S., at 571, 85 S.Ct., at 1166, a literal reading of the word "new" in § 15(7) is necessary to curb mischief flowing from unchecked initial rates, which is in every way identical to that flowing from unchecked changes in rates to which the Mann-Elkins Act is concededly addressed. Given the equivalence of the harms resulting from unchecked initial and changed rates, only unequivocal statements in the legislative history of the Act would support any limitation on the scope of the suspension power. Petitioners, however, have been able to offer only isolated remarks made in floor debates in favor of their position.23 These show at most that the primary area of congressional concern was the situation in which railroads increased their pre-existing rates. There is nothing to show that Congress intended to limit the suspension power to this situation, however, and, indeed, other isolated remarks show quite clearly that Representative Mann, at least, thought both initial and changed rates could be suspended.24 Therefore, we conclude that the word "new" must be given its literal interpretation, which embraces the rates that are the subject of this litigation.25
B
20
Nor do we think much can be made of the fact that Congress, in Part I of the Interstate Commerce Act, sometimes refers to "new" rates and sometimes to "changed" rates.
21
While it is true that § 6(3) of the Act provides that "[n]o change shall be made in . . . rates . . . which have been filed and published by any common carrier . . . except after thirty days' notice to the Commission and to the public" (emphasis added), we do not read this section to restrict § 15(7), as petitioners do. Central to petitioners' argument is the premise that § 6(3) provides the exclusive procedure through which tariffs can be filed with the Commission. But this is not so.
22
We can agree that § 6(3) simply cannot describe the procedure to be followed for filing initial rates since that section, by its terms, applies only to changes in tariffs which have previously been filed with the Commission and initial tariffs by definition have not been so filed. However, the conclusion that § 6(3) cannot govern the filing of initial tariffs only begins the analysis, for § 6(1) of the Act—which states that "[e]very common carrier . . . shall file with the Commission . . . schedules showing all the rates, fares, and charges for transportation [over its routes,]" 49 U.S.C. § 6(1) (emphasis added)—plainly requires initial rates as well as rates resulting from tariff changes to be filed with the Commission. Since initial tariffs cannot be filed under § 6(3), the question therefore arises how initial tariffs are to be filed.
23
The Interstate Commerce Act gives no answer to this question; § 6 is silent on the issue. However, the Commission provided an answer by regulation in 1906 in order to clarify carrier obligations under the then recently enacted Hepburn Act.26 In that year, the Commission issued Tariff Circular No. 2-A, which provided:
24
"NEW ROADS.—On new lines of road, including branches and extensions of existing roads, individual rates may be established in the first instance, and also joint rates to and from points on such new line, without notice, on posting a tariff of such rates and filing the same with the Commission."
25
The immediately preceding paragraph of the same Circular provided that "Changes in Rates" had to be filed on 30 days' notice, which suggests that the Commission was aware that the 30-day requirement of § 6(3), and indeed that § 6(3) itself, was inapplicable to initial rates for "new roads." The rule announced in Circular 2-A became Rule 44 of Tariff Circular 14-A in 1907 and Rule 57 of Tariff Circular 15-A in 1908, a numerical designation which has been retained to this day. See 49 C.F.R. § 1300.57 (1977).27
26
Thus, in 1910 when the Mann-Elkins Act was passed, Commission practice was quite clear. Initial tariffs were filed under Rule 57 on 1 day's notice (later changed to 10 days' notice) and tariff changes were filed under the provisions of § 6(3). Since both the Rule and the Act provided that tariffs should be filed with delayed effective dates, it was clearly possible for the Commission to suspend either initial or changed rates. Consequently, we find no basis for concluding either that § 6(3) in fact provides the exclusive procedural avenue for filing tariffs or that Congress in 1910 would have thought that it did.
27
Similarly, although § 418 of the Transportation Act of 1920, 41 Stat. 484-487, added a sentence to § 15(7)—"if the proceeding has not been concluded [within the suspension period], the proposed change . . . shall go into effect at the end of such period"—nothing in the legislative history of that Act suggests that "change" is to be read to restrict the scope of the suspension power. Moreover, the amending language of § 418 itself refers to both changed rates and rate increases, which would suggest that changed rates include more than rate increases.28
28
Finally, as we have indicated, the tariff provisions in Part I of the Act did not spring full grown into the statute books. Section 6(3), part of the 1887 Act, was drafted at a time when the Commission had no ratemaking authority. Section 15(7) traces to three Acts—the 1887 Act, the Hepburn Act, and the Mann-Elkins Act and was then further amended by the Transportation Act of 1920. Since, therefore the tariff provisions grew more like Topsy than Athena, it is inappropriate to insist that each phrase in those provisions fit meticulously with every other. Instead, the Act must be construed not only by its language but by its purposes if sense is to be made of the verbal accretions of many years. Under this proper standard of construction, there is little to commend the argument that the word "change" was meant to narrow "new." To the contrary, the opposite construction—that "new" was intended to clarify the meaning of "change"—is more justified given the purposes of the Hepburn and Mann-Elkins Acts. Indeed, when Congress did enact comprehensive tariff schemes in Parts II,29 III,30 and IV31 of the Interstate Commerce Act, which cover (respectively) motor carriers, common car iers by water, and freight forwarders, it indicated unequivocally in the language of the suspension provisions that initial rates were "new" rates capable of being suspended and yet references to "changed" rates appear in those Parts in each place they appear in Part I.32
C
29
For the reasons stated above, we conclude that the Commission is authorized by § 15(7) to suspend rates which are "new" in the sense that they apply to services which have never before been offered to the public.
IV
30
Our conclusion that the Commission can suspend TAPS's initial rates does not end our inquiry, for petitioners also argue that the Commission has here exceeded whatever power it has to suspend tariffs. Pointing to the Commission's calculation of rates which it would allow to go into effect during the suspension period, they state that the Commission has set rates without the hearing required by 49 U.S.C. § 15(1).33 We disagree.
31
The reason the Commission has been given power to suspend is to prevent irreparable harm to the public during the time when it has under consideration the lawfulness of a proposed rate. See Part II, supra. The foundation for a suspension is the Commission's conclusion that a proposed rate is probably unreasonable or unjust. See, e. g., TAPS, 355 I.C.C., at 81-82. To make such a determination, the Commission is obviously required to form a tentative opinion about the location of the line between the just and the unjust, the reasonable and the unreasonable. Moreover, the Commission is required by § 15(7) to set out its reasons in writing for suspending a tariff. The usual and sufficient reason will be that the Commission has found a proposed tariff to fall on the unjust or unreasonable side of the line it has drawn, and it is a reason of precisely this sort that the Commission has given here. See, 355 I.C.C., at 81-83.
32
Petitioners do not apparently disagree that the Commission can suspend a tariff because it falls on the wrong side of the line of reasonableness, but they would prevent the Commission in suspending a tariff from stating, as it did here, where the tentative dividing line lies. Such a statement, they say, is ratemaking. But this is untenable: No principle of la requires the Commission to engage in a pointless charade in which carriers desiring to exercise their § 6(3) rights are required to submit and resubmit tariffs until one finally goes below an undisclosed maximum point of reasonableness and is allowed to take effect. The administrative process, after all, is not modeled on "The Price is Right." What the Commission did here, therefore, far from being condemnable, is an intelligent and practical exercise of its suspension power which is thoroughly in accord with Congress' goal, recognized in Arrow, 372 U.S., at 664-666, 83 S.Ct., at 987-988; see United States v. SCRAP, 412 U.S. 669, 697, 93 S.Ct. 2405, 2421, 37 L.Ed.2d 254 (1973), to strike a fair balance between the needs of the public and the needs of regulated carriers. Indeed, the Commission might well have been derelict in its duty had it insisted on charade once it had determined that there was a way TAPS could operate without harm to the public. Cf. Arrow, supra ; SCRAP, supra ; 43 U.S.C. § 1651(a) (1970 ed., Supp. V) (congressional policy favors "[t]he early development and delivery of oil . . . from Alaska's North Slope to domestic markets").
V
33
Finally, petitioners contend that the Commission has no power to subject them to an obligation to account for and refund amounts collected under the interim rates in effect during the suspension period and the initial rates which would become effective at the end of such period. They point to the absence of any express authority for such refund provisions and also to the fact that § 15(7) does provide expressly for refunds in a limited category of circumstances, namely, where there is an "increased rate or charge for or in respect to the transportation of property," which has become effective at the end of a suspension period. This statutory pattern, they suggest, indicates that Congress considered and rejected any broader refund scheme, thereby curtailing any ancillary power to order refund provisions that the Commission might otherwise have.
34
In response, we note first that we have already recognized in Chessie that the Commission does have powers "ancillary" to its suspension power which do not depend on an express statutory grant of authority. We had no occasion in Chessie to consider what the full range of such powers might be, but we did indicate that the touchstone of ancillary power was a "direc[t] relat[ionship]" between the power asserted and the Commission's "mandate to assess the reasonableness of . . . rates and to suspend them pending investigation if there is a question as to their legality." 426 U.S., at 514, 96 S.Ct., at 2325. Applying this test, we found in Chessie a direct relationship which justified the Commission in insisting that the proceeds of proposed general railroad rate increases be used to pay for deferred maintenance. If such a use was made of the proceeds, the rates were reasonable; but they might not be reasonable if put to other purposes. Ibid. We also noted that "[d]elay through suspension would only have aggravated the already poor condition of some of the railroads." Ibid. Thus, we approved the deferred maintenance condition essentially because it was necessary to strike a proper balance between the interests of the carriers and the interests of the public.
35
The situation here is very similar. Even a cursory glance at the pleadings before the Commission shows that extended adjudicatory proceedings will be required to resolve the question of precisely what are fair rates. Accordingly, it is not apparent how the Commission could discharge its mandate under § 15(7) summarily "to assess the reasonableness of [TAPS] rates," 426 U.S., at 514, 96 S.Ct., at 2325, while considering the interest of the TAPS carriers in beginning operations, unless it could make gross approximations of the sort it made in this proceeding, in which it essentially accepted carrier-supplied data as true and properly incl ded in the TAPS rate base notwithstanding protests to the contrary. See TAPS, supra, at 83; supra, at 636, and n. 12. But if such approximations are to be used to meet the needs of carriers, it is plain that refund provisions are a necessary and "directly related," Chessie, 426 U.S., at 514, 96 S.Ct., at 2325, means of discharging the Commission's other mandate to protect the public pending a more complete determination of the reasonableness of the TAPS rates.
36
Thus, here as in Chessie, the Commission's refund conditions are a "legitimate, reasonable, and direct adjunct to the Commission's explicit statutory power to suspend rates pending investigation," in that they allow the Commission, in exercising its suspension power to pursue "a more measured course" and to "offe[r] an alternative tailored far more precisely to the particular circumstances" of these cases. Ibid. Since, again as in Chessie, the measured course adopted here is necessary to strike a proper balance between the interests of carriers and the public we think the Interstate Commerce Act should be construed to confer on the Commission the authority to enter on this course unless language in the Act plainly requires a contrary result.
37
We turn, therefore, to the language in § 15(7) on which petitioners rely. This language was not part of the Mann-Elkins Act, but was added by the Transportation Act of 1920. See § 418 of the latter Act, 41 Stat. 484, 487. Section 418 rearranged the paragraphs of § 15 of the Interstate Commerce Act and made numerous modifications to the text of that section. Among other things, § 418 reduced the suspension period created by the Mann-Elkins Act from 10 months to 120 days. According to Commissioner Clark, this change was intended to alleviate complaints by the railroads that the 10-month period too long deprived them of needed revenue in the situation in which proposed rates were ultimately determined to be reasonable. See 1 Hearings on H.R. 4378 before the House Committee on Interstate and Foreign Commerce, 66th Cong., 1st Sess., 30-31 (1919). To protect shippers, the reduction in the suspension period was counterbalanced with a provision authorizing the Commission to require carriers to keep account of and refund amounts collected under tariffs which became effective after a 120-day suspension. See ibid. The provisions were summarized in the Report of the Conference Committee which described the provisions of the House bill which provided the text of § 418:
38
"[The House bill provided that] as to freight rates the carrier should keep a record in all cases where the commission had not concluded such hearing, and, if the commission finally found the rates too high, the carrier was required to make refunds to the shippers affected." H.R.Conf.Rep.No.650, 66th Cong., 2d Sess., 66 (1920).
39
This passage, which declares that Congress sought to protect the public in "all cases " in which a hearing had not been concluded by the termination of the suspension period, certainly cannot be read to indicate that Congress placed any emphasis on the word "increased" or intended to limit the Commission's ancillary powers. Indeed, the House Report on the same bill, H.R.Rep.No.456, 66th Cong., 1st Sess., 20-21 (1919), appears to refer to "increased" rates only to distinguish them from "decreased" rates, over which the 1920 Act for the first time gave the Commission some authority by conferring power to set minimum rates, see id., at 19, and as to which there is no need to create a refund procedure to protect shippers. From this very sketchy history, therefore, it seems that Congress' purpose was to create a remedy less cumbersome than the reparations procedure to protect shippers whenever they could be harmed due to the shortened suspension period created by the 1920 Act. See Arrow, 372 U.S., at 665-666, 83 S.Ct., at 987-988. Accordingly, we conclude that nothing in the Transportation Act precludes what the Commission has done here and, moreover, that the Commission's actions are completely consistent with what Congress intended when it drafted the 1920 Act.
VI
40
For the reasons stated above, the judgment below is in all respects
41
Affirmed.
42
Mr. Justice POWELL took no part in the consideration or decision of these cases.
1
"Whenever there shall be filed with the Commission any schedule stating a new individual or joint rate, fare, or charge, . . . the Commission shall have . . . authority . . . to enter upon a hearing concerning the lawfulness of such rate, fare, [or] charge . . . ; and pending such hearing and the decision thereon the Commission, upon filing with such schedule and delivering to the carrier or carriers affected thereby a statement in writing of its reasons for such suspension, may from time to time suspend the operation of such schedule and defer the use of such rate, fare, [or] charge . . . , but not a longer period than seven months beyond the time when it would otherwise go into effect . . . ."
2
Trans-Alaska Pipeline Authorization Act, 87 Stat. 584, 43 U.S.C. § 1651 et seq. (1970 ed., Supp. V).
3
Each of eight companies holds an undivided interest in TAPS and each has the "right and obligation to utilize its share of TAPS capacity as an independent common carrier." Joint Brief for Petitioners 5. The interests held by each owner are as follows:
Sohio Pipe Line Co. 33.34%
ARCO Pipe Line Co. 21.00
Exxon Pipeline Co. 20.00
BP Pipelines, Inc. 15.84
Mobil Alaska Pipeline Co. 5.00
Phillips Alaska Pipeline Corp. 1.66
Union Alaska Pipeline Co. 1.66
Amerada Hess Pipeline Corp. 1.50
Trans Alaska Pipeline System, 355 I.C.C. 80, 91-93 (1977) (TAPS ). Phillips Alaska Pipeline Corp. filed its tariffs later than the other seven carriers and has filed a petition for review of the suspension of its tariffs in the Court of Appeals for the District of Columbia Circuit, where decision has been deferred pending decision by this Court in these cases. See Joint Brief for Petitioners 4 n. 2.
4
Oil pipelines were until October 1, 1977, subject to the jurisdiction of the Interstate Commerce Commission. See 49 U.S.C. § 1(1)(b). On that date, jurisdiction over the transportation of oil in interstate commerce by pipeline was transferred from the Interstate Commerce Commission to the Federal Energy Regulatory Commission (FERC). Department of Energy Organization Act of 1977, 91 Stat. 565, 42 U.S.C. § 7101 et seq. (1976 ed., Supp. I); Exec. Order No. 12009, 42 Fed.Reg. 46267 (1977). Further proceedings on the TAPS tariffs are pending before FERC.
5
See 49 CFR § 1100.42 (1976).
6
The State of Alaska owns a one-eighth royalty interest in Prudhoe Bay oil, which is calculated to be equal to 12.5% of the "wellhead value" of that oil. The parties tell us (although recent reports of falling oil prices on the west coast tend to cast doubt on this) that the market price of oil is essentially fixed. Accordingly, wellhead value is approximately determined by subtracting transportation costs from the fixed market price. See 1 App. 554a. For this reason, the State claims to lose 23 cents in royalties for every dollar by which the TAPS rate exceeds a just and reasonable level. Brief for Respondent State of Alaska 7.
7
The Corporation, one of 13 established pursuant to the Alaska Native Claims Settlement Act, 85 Stat. 688, 43 U.S.C. §§ 1601-1627 (1970 ed., Supp. V), represents the interests of the Inupiat Eskimos, who have a claim to be paid 2% of the wellhead value, see n. 6, supra, of Alaskan crude oil up to a total of $500 million as consideration for their surrender of aboriginal land claims in the Prudhoe Bay area. The rate at which the Corporation collects revenue is inversely proportional to the TAPS rate. See ibid. Accordingly, if the TAPS rate is too high, the Corporation, which has a great immediate need for oil royalties, is harmed.
8
The Department of Justice argued that the proposed TAPS rates were unreasonably high and would accordingly "discourage exploration and development of new fields by reducing the wellhead value of crude [oil]." 1 App. 95a. Such discouragement was said to be "inconsistent with national energy policy." Ibid.
9
The Bureau argued that the proposed rates were "prima facie unreasonable," id., at 143a, and should be suspended pending a full investigation.
10
Rather than referring the TAPS protest to its staff suspension board and its appellate division of three Commissioners, as is routinely done in suspension cases, see 49 CFR § 1100.200 (1976), the Commission itself heard oral argument on the protests and determined that the TAPS rates should be suspended.
11
According to carrier data, the aggregate debt-equity ratio in TAPS financing was approximately 85%-15%. 1 App. 23a-24a, 159a; TAPS, supra at 91. In calculating their rates, the carriers deducted interest expense in the computation of net income and then added a return element to calculated net income sufficient to provide them a 7% return on total investment, i. e., both debt and equity. 3 App. 177-178. The protestants characterized this as "double-dipping." Brief for Respondent State of Alaska 13. The carriers defended the practice as being consistent with Commission practice and a consent decree entered in United States v. Atlantic Refining Co., C.A. No. 14060 (D.C., Dec. 23, 1941). See, e. g., 1 App. 349a-355a; 3 App. 178.
12
TAPS was originally estimated to cost less than $1 billion. 1 App. 10a. However, the estimated cost on which tariffs were calculated by the TAPS carriers was over $9 billion. Id., at 102a, 117a. Protestants argued that much of the $9 billion represented waste and mismanagement on the part of the TAPS owners and could not, therefore, be included in the TAPS rate base. E. g., id., at 10a-11a.
13
Usually, the Commission uses an 8% return on valuation in setting pipeline rates, but in recognition of the extreme risk of the TAPS venture, the Commission used 10% in setting the interim rates. See TAPS, 355 I.C.C., at 85.
14
The rates initially filed and the maximum interim rates allowed by the ICC are as follows:
Proposed Interim
Carrier Rate Rate Reduction
Amerada Hess $6.44 $4.85 $1.59
BP 6.35 4.68 1.67
Mobil Alaska 6.31 4.84 1.47
Exxon 6.27 5.10 1.17
Phillips Alaska 6.22 4.83 1.39
Sohio 6.16 4.70 1.46
Union Alaska 6.09 4.89 1.20
ARCO 6.04 4.91 1.13
See id., at 80, 87, 94.
15
I addition, the Commission authorized the carriers to file new tariffs which could become effective on as little as one-day's notice, and it instituted a formal adjudicatory investigation into the lawfulness of the suspended rates pursuant to 49 U.S.C. § 15(1). TAPS, supra, at 87-88.
16
Sohio Pipeline Co., Union Alaska Pipeline Co., and Amerada Hess Pipeline Corp. were intervenors in the proceedings below and are parties here. See this Court's Rule 21(4).
17
In the Court of Appeals, the United States argued that Arrow Transportation Co. v. Southern R. Co., 372 U.S. 658, 83 S.Ct. 984, 10 L.Ed.2d 52 (1963), and United States v. SCRAP, 412 U.S. 669, 93 S.Ct. 2405, 37 L.Ed.2d 254 (1973), divest courts of jurisdiction to review suspension orders of the Interstate Commerce Commission. In this Court, the United States has modified that position and now apparently concedes that courts have jurisdiction to review suspension orders to the limited extent necessary to ensure that such orders do not overstep the bounds of Commission authority. We agree.
Arrow and SCRAP stand for two propositions: first, that federal courts have no power to enjoin rate changes before the Commission has finally determined the lawfulness of rates, see Arrow, supra, 372 U.S., at 669, 83 S.Ct., at 990; SCRAP, supra, 412 U.S., at 691, 93 S.Ct., at 2418; and, second, that federal courts have no power to make "an independent appraisal of the reasonableness of rates," Arrow, supra, 372 U.S., at 670-671, 83 S.Ct., at 991; see SCRAP, supra, 412 U.S., at 692, 93 S.Ct., at 2418. Although reversal of a suspension order on judicial review might have the effect of allowing a rate to go into effect, such a reversal would not have the effect of an injunction, which jeopardizes "the regulatory goal of uniformity" of rates, Arrow, supra, 372 U.S., at 664, 83 S.Ct., at 987; see infra, at 641, since the effect of the reviewing court's judgment would be to void the suspension order as to all affected carriers in all regions of the country. Moreover, under the recently modified provisions for judicial review of ICC orders, only one reviewing court could have jurisdiction over a suspension order. See 28 U.S.C. §§ 2341(3)(A), 2342(5) (1970 ed., Supp. V), added by Pub.L.No.93-584, §§ 3-4, 88 Stat. 1917; 28 U.S.C. § 2349(a). And, although we reaffirm our previous holding that courts may not independently appraise the reasonableness of rates, no such appraisal is involved in inquiring whether the Commission has overstepped the bounds of its authority. Therefore, we conclude that Co gress did not mean to cut off judicial review for such limited purposes. Cf. Dunlop v. Bachowski, 421 U.S. 560, 567, 95 S.Ct. 1851, 1857, 44 L.Ed.2d 377 (1975); Abbott Laboratories v. Gardner, 387 U.S. 136, 140-141, 87 S.Ct. 1507, 1510-1512, 18 L.Ed.2d 681 (1967); Leedom v. Kyne, 358 U.S. 184, 190, 79 S.Ct. 180, 184, 3 L.Ed.2d 210 (1958).
18
" 'It may be doubted how effective [the reparations] remedy really is. Experience has shown that many, perhaps most, shippers do not resort to proceedings to recover the excessive rates which they may have been required to pay, for the simple reason that they have added the rates paid to the cost of the goods and thus enhanced the price thereof to their customers, and that the public has in effect paid the bill.' "
19
"[I]n practice it is found that . . . restitution is but seldom sought or awarded; probably because the shipper generally recoups himself from the public for the amount of the loss through the augmented price of the commodity."
20
See 3 App. 17-18:
"[ICC] Commissioner Hardin: If we do not have the power to suspend then would the carriers be in a position to file a rate, say, at $35 a barrel, and the Commission still could not suspend that?
"[Exxon counsel]: If you do not have that power, that would be right."
21
The United States, pointing to an agreement between Sohio and BP that Sohio will tender to BP oil to the extent of the latter's TAPS ownership, computes the relationship between equity interests and TAPS interests as follows:
TAPS Oil
Carrier Interest Interest
Sohio/BP 49.18% 53.155%
ARCO 21.00 20.274
Exxon 20.00 20.274
Mobil 5.00 2.094
Phillips 1.66 2.044
Amerada Hess 1.50 .538
Union Oil 1.66 0.000
Ten Others 0.00 1.619
Brief for Federal Respondents 7-8, n. 4. The oil equity interests computed by petitioners are different, but not substantially so. See Joint Brief for Petitioners 6 n. 6.
22
In the past, actions for injunctions were brought in diversity of citizenship cases under the common law of carriers or under federal-question jurisdiction on the theory that the Sherman Act was being violated by a rate increase or alternatively that there was an implied right of action under § 1 of the Interstate Commerce Act, 49 U.S.C. § 1. See, e. g., Northern Pac. R. Co. v. Pacific Coast Lumber Mfrs., 165 F. 1 (C.A.9 1908); Jewett Bros. & Jewett v. Chicago, M. & St. P. R. Co., 156 F. 160 (CC S.D.1907). The provisions consolidating judicial review of ICC orders in a single court of appeals, see n. 17, supra, are therefore not apposite to actions for injunctive relief and it would still be possible for district courts to reach conflicting views about the propriety of injunctive relief, a conflict that would create the rate discriminations sought to be ended by the Mann-Elkins Act.
23
Petitioners place particular emphasis on the following statement of Representative Mann:
"[W]hen the railroad company then files this schedule of rates proposing to increase the rates, we say it is a reasonable presumption that the rate which has existed, possibly for a long time—but whether for long or short, the one in existence—is a fair rate, and should remain in force until the commission has had an opportunity to give some investigation to the subject. That seems to be fair to the railroad company and fair to the shipper." 45 Cong.Rec. 4713 (1910).
Just before this, however, Mann stated:
"We have therefore provided in the bill that where the schedule of rates is filed with the commission proposing to change an existing rate, the commission shall have authority to suspend the taking effect of that rate; and we provide that when there shall be filed with the commission a schedule stating a new rate or classification or regulation or practice, the commission . . . may suspend the operation of the proposed rate, classification, regulation, or practice . . . ." Id., at 4711 (emphasis added).
Thus, Mann quite clearly recognized that the suspension power extended to both changes in rates and schedules stating initial rates. Moreover, Mann, in defending the suspension power, felt the need to discuss the situation in which a carrier puts in a rate "upon a new article." Id., at 4711-4712. If th suspension power was meant to apply only where there was an old rate in effect, this element of Mann's defense would have been superfluous.
Petitioners also rely on statements made in the Senate which appear to refer solely to the rate increase situation. See Joint Brief for Petitioners 22 n. 29. These remarks, however, refer to an amendment to the Mann-Elkins Act, ultimately defeated, 45 Cong.Rec. 6915 (1910), introduced by Senator Cummins which prevented any change in rate "which is an increase over the then existing rate," id., at 6409, from becoming effective until the Commission approved it. Therefore, the remarks are not relevant to an interpretation of the Act as passed.
24
See n. 23, supra.
25
Petitioners also argue that, were the Commission given authority to suspend initial rates, carriers would be prohibited for an extended period of time from using their facilities. This, they further argue, would constitute a confiscation prohibited by the Due Process Clause. As we indicate, see at n. 33, infra, petitioners' major premise is misguided because suspension of initial rates does not pretermit filing of a lower rate to go into effect in the suspension period. Therefore, although a carrier may not be allowed to operate under its preferred rate, it is by no means obvious that it will have to refrain from operations or operate under a confiscatory tariff during the suspension period.
26
Since the 1906 regulation is a "contemporaneous construction of [the Act] by the men charged with the responsibility of setting its [tariff] machinery in motion," Norwegian Nitrogen Co. v. United States, 288 U.S. 294, 315, 53 S.Ct. 350, 358, 77 L.Ed. 796 (1933), its interpretation of how § 6(1) should be implemented is presumptively correct. See, e. g., ibid.; Udall v. Tallman, 380 U.S. 1, 16, 85 S.Ct. 792, 801, 13 L.Ed.2d 616 (1965).
27
Tariff Circulars covering oil pipelines were apparently not promulgated until 1928. In that year Tariff Circular No. 20, which superseded all earlier circulars, was promulgated and its version of Rule 57 provided that "[r]ates from, to, via, or at points reached via newly laid pipelines . . . may be established or changed in like manner and upon like notice to that provided for newly constructed lines of railroad . . . ." Tariff Circular No. 20, Rule 57(e). This provision is now codified as 49 CFR § 1300.57(e) (1977) and is the provision under which TAPS rates were filed with the Commission. See Joint Brief for Petitioners 6.
28
"[I]f the proceeding has not been concluded . . . , the proposed change . . . shall go into effect . . . , but, in case of a proposed increased rate or charge [the Commission may impose recordkeeping and refund requirements on the carrier]." 41 Stat. 487 (emphasis added).
29
49 U.S.C. §§ 301-327 (1970 ed. and Supp. V).
30
§§ 901-923 (1970 ed. and Supp. V).
31
§§ 1001-1022.
32
The relevant provisions of § 15(7) are reproduced in haec verba in 49 U.S.C. §§ 316(g) ("Whenever there shall be filed with the Commission any schedule stating a new . . . rate, fair, [or] charge . . . , the Commission . . . may . . . suspend the operation of such schedule . . ."); 907 (g) ("Whenever there shall be filed with the Commission any schedule . . . stating a new rate, fair, [or] charge . . . , the Commission . . . may . . . suspend the operation of such schedule . . ."); and 1006(e) ("Whenever there shall be filed with the Commission . . . any tariff stating a new rate, charge, classification, regulation, or practice, the Commission . . . may . . . suspend the operation of such tariff . . ."). As enacted, § 316(g) provided that the suspension power "shall not apply to any initial schedule or schedules filed by any . . . carrier in bona fide operation when this section takes effect." Motor Carrier Act of 1935, § 216(g), 49 Stat. 559, 560 (emphasis added). This provision was subsequently amended to state: "[T]his paragraph shall not apply to any initial schedule or schedules filed on or before July 31, 1938, by any . . . carrier in bona fide operation [on October 1, 1935]." Act of June 29, 1938, ch. 811, § 16, 52 Stat. 1240 (emphasis added). Substantially identical provisos—each
exempting initial rates from suspension until a date certain—can be found in §§ 907(g) and 1006(e). These provisos are significant here.
First, they demonstrate that Congress understood the words "any schedule stating a new rate" to include initial rates, that is, rates filed with the Commission for a service not previously under tariff. If this were not so, a grandfather proviso would have been entirely unnecessary. Second, because Congress grandfathered only rates filed within a specified time period, the inference is strong that initial rates filed subsequent to that period were (and are) subject to suspension. This inference is confirmed by the legislative history of § 316(g).
As indicated, § 316(g) as enacted did not contain a cutoff date in the grandfather proviso. In 1938, a cutoff date was provided by amendment. This change was explained by the House Committee Report as follows:
"Sectio[n 16] . . . propose[s] to amend sectio[n] [316(g)] . . . to permit the Commission to suspend any initial schedule of a common carrier . . . filed after the date that the provisions of the bill shall have become effective. The purpose of the proposed amendment is to prevent future filings of initial tariffs and schedules by motor carriers who were in bona fide operation on June 1, or July 1, 1935, without the exercise by the Commission of its suspension power." H.R.Rep.No.2714, 75th Cong., 3d Sess., 4 (1938).
While there is no grandfather clause in § 15(7) itself which would confirm its application to initial rates, Congress was doubtless attempting to recreate the scheme of § 15(7) in Parts II-IV of the Act and expressly stated this on two occasions. See H.R.Rep.No.1217, 76th Cong., 1st Sess., 23-24 (1939); H.R.Rep.No.2066, 77th Cong., 2d Sess., 22 (1942). Moreover, since § 15(7) is in all respects in pari materia with
§§ 316(g), 907(g), and 1006(e), the plain meaning of the latter sections should be given significant weight in construing the former. See United States v. Freeman, 3 How. 556, 564-565, 11 L.Ed. 724 (1845); United States v. Stewart, 311 U.S. 60, 64-65, 61 S.Ct. 102, 105-106, 85 L.Ed. 40 (1940); Erlenbaugh v. Unit d States, 409 U.S. 239, 243-244, 93 S.Ct. 477, 480-481, 34 L.Ed.2d 446 (1972).
In addition, the fact that §§ 316(g) and 1006(e) plainly apply to initial rates defeats petitioners' argument that the word "change" in either § 6(3) or § 15(7) of the Act narrows the word "new." Counterparts to § 6(3) are found in §§ 317(c) and 1005(d), each of which, like § 6(3), states: "No change shall be made in any rate . . . except after thirty days' notice . . . ." (Emphasis added.) Since §§ 317(c) and 1005(d) are intended to work with §§ 316(g) and 1006(e), respectively, in the same way § 6(3) works with § 15(7), it is clear that the word "change" does not limit the scope of the suspension power. Similarly, each of §§ 316(g), 907(g), and 1006(e) contains language identical to that added to § 15(7) by the Transportation Act of 1920, see supra, at 649, which again shows that the word "change" cannot be given any restrictive meaning.
33
Petitioners also argue that, for suspension to be lawful, the Commission had to make a "finding that it would be preferable to defer operation of the Trans Alaska Pipeline rather than to commence operation at the carriers' original rates." Joint Brief for Petitioners 36. We find no basis in the Interstate Commerce Act to support such an argument. Indeed, § 6(3) of the Act, 49 U.S.C. § 6(3), authorizes a carrier to submit new tariffs at any time. This authority does not lapse once one tariff for a proposed service is suspended. To the contrary, the Commission cannot refuse to file a tendered tariff simply because it has already suspended other tariffs for the same service. See AT&T v. FCC, 487 F.2d 865, 870-881 (CA2 1973). Petitioners, therefore, would require the Commission, in making suspension decisions, to blink at the reality that carriers whose initial rates are suspended will submit interim rates to avoid the almost certain losses that would accrue were the commencement of service postponed altogether.
| 78
|
436 U.S. 748
98 S.Ct. 2081
56 L.Ed.2d 677
Joseph V. AGOSTO, Petitioner,v.IMMIGRATION AND NATURALIZATION SERVICE.
No. 76-1410.
Argued Feb. 28, 1978.
Decided June 6, 1978.
Syllabus
The Immigration and Naturalization Service brought proceedings to deport petitioner as an alien who had unlawfully entered the United States. At a series of hearings before an Immigration Judge, the INS presented documentary evidence that petitioner was born in Italy in 1927 of unknown parents, was placed in a foundling home there, and ultimately was adopted by an Italian couple. Petitioner and several other witnesses testified that he was born in Ohio of an Italian mother and sent to Italy at an early age to reside with the above couple. Rejecting petitioner's evidence, the Immigration Judge issued a deportation order, and the Board of Immigration Appeals affirmed. Petitioner then petitioned the Court of Appeals for review of the Board's decision, claiming that he was entitled to a de novo hearing in District Court pursuant to § 106(a)(5)(B) of the Immigration and Nationality Act, which provides that whenever a petitioner seeking review of a deportation order claims to be a United States citizen and makes a showing that his claim is not frivolous, the court of appeals, if it finds that "a genuine issue of material fact as to the petitioner's nationality is presented," must transfer the proceedings to the district court for a hearing de novo of the nationality claim. The Court of Appeals refused to transfer the case to the District Court for a de novo hearing and affirmed the deportation order, apparently holding that in order to obtain a de novo hearing petitioner was required by Kessler v. Strecker, 307 U.S. 22, 59 S.Ct. 694, 83 L.Ed. 1082, to present "substantial evidence" in support of his citizenship claim and that he had failed to do o. Held:
1. The Court of Appeals' decision, to the extent that it holds de novo review to be required only where the petitioner presents substantial evidence in support of his claim to citizenship, is contrary to the plain language and clear meaning of § 106(a)(5)(B), and there is nothing in the legislative history to indicate that Congress intended to require de novo judicial determination of citizenship claims only when such determinations would be compelled by the Kessler "substantial evidence" standard. Pp. 752-757. (a) Although § 106(a)(5)(B) was intended to satisfy any constitutional requirements relating to de novo judicial determination of citizenship claims, the statute clearly does not restrict de novo review to cases in which the "substantial evidence" test is met. Rather than incorporating the language of Kessler in the statute, Congress chose to require hearings where there is "a genuine issue of material fact," thus incorporating the same standard as governs summary judgment motions under Fed.Rule Civ.Proc. 56. Pp. 753-755.
(b) Since summary judgment principles control, it follows that a court of appeals cannot refuse to allow a de novo review of a citizenship claim if the supporting evidence would suffice to entitle a litigant to trial were such evidence presented in opposition to a motion for summary judgment. Pp. 756-757.
2. Applying the appropriate standard to the record in this case, it is apparent that the Court of Appeals erred when it failed to transfer the case to the District Court for a de novo hearing. While the INS's documentary evidence would suffice, if uncontradicted, to establish petitioner's birth in Italy, such evidence would be refuted by petitioner's witnesses' testimony if that testimony were accepted by the trier of fact. Hence there is a genuine issue of material fact for the District Court on the question of petitioner's citizenship. Pp. 757-761.
549 F.2d 806, reversed and remanded.
Robert S. Bixby, San Francisco, Cal., for petitioner.
Marion L. Jetton, Washington, D. C., for respondent.
Mr. Justice MARSHALL delivered the opinion of the Court.
1
The question for decision is whether petitioner, Joseph Agosto, has made a sufficient showing in support of his claim to United States citizenship to entitle him to a de novo judicial determination of that claim under § 106(a)(5)(B) of the Immigration and Nationality Act, 8 U.S.C. § 1105a(a)(5)(B) (1976 ed.).
2
* In 1967, the Immigration and Naturalization Service began deportation proceedings against petitioner by issuance of a show-cause order charging that he was deportable as an alien who had unlawfully entered the United States. App. 4-6. Petitioner opposed deportation, claiming that he was born in this country and therefore is a citizen of the United States not subject to deportation. Over the course of several years, a series of hearings were held before an Immigration Judge,1 at which the Service presented documentary evidence in an effort to show that petitioner was born in Italy in 1927 of unknown parents, placed in a foundling home there, and ultimately adopted by an Italian couple. Petitioner presented testimony from himself and several other witnesses to show that he was born in Ohio of an Italian mother and sent to Italy at an early age to reside with the aforementioned couple.
3
In April 1973, the Immigration Judge issued the deportation order challenged here, rejecting the evidence tendered by petitioner and his witnesses that he was born in the United States. App. 23-59. The Board of Immigration Appeals affirmed. It noted that, "[i]f believed, the testimony of [petitioner's witnesses] clearly refutes the Service's otherwise strong documentary demonstration of [petitioner's] alienage" and that "[i]t is not beyond the realm of possibility that [petitioner's] claim to United States citizenship is legitimate." Pet. for Cert. viii. The Board nevertheless accepted the Immigration Judge's credibility determinations and found that the "Service's case as to alienage is clear, convincing and unequivocal." Id., at xi.
4
Agosto petitioned for review of the Board's decision in the United States Court of Appeals for the Ninth Circuit pursuant to § 106 of the Act, and claimed that, pursuant to § 106(a)(5), he was entitled to a de novo hearing in District Court to determine whether he was a United States citizen. Section 106(a)(5) provides that whenever a petitioner "claims to be a national of the United States and makes a showing that his claim is not frivolous," the court of appeals is to transfer the proceedings to the district court for a hearing on that claim if "a genuine issue of material fact as to the petitioner's nationality is presented." When no genuine issue of material fact is presented, the court of appeals has authority to "pass upon the issues presented."2
5
The Court of Appeals, with one judge dissenting, refused to transfer the case to the District Court for a de novo hearing on petitioner's citizenship claim, and affirmed the deportation order. Pet. for Cert. i; affirmance order, 549 F.2d 806. It held that "[t]he evidence presented to the immigration judge does not disclose a colorable claim to United States nationality." Pet, for Cert. ii. Further, the Court of Appeals apparently concluded that in order to obtain a de novo hearing petitioner was required to present "substantial evidence" in support of his citizenship claim and that he had failed to do so. Ibid. The dissenting judge, while acknowledging that as a factfinder she would not have credited petitioner's testimony, stated that "I do not believe our legally assigned role includes a decision on credibility, and, on that basis, I am unable to sa that petitioner's evidence, if believed, would not present a colorable claim to American citizenship." Ibid.
6
We granted certiorari, 434 U.S. 901, 98 S.Ct. 294, 54 L.Ed.2d 187 (1977), to consider the proper construction of § 106(a)(5)(B), and we now reverse.
II
7
In 1961, Congress enacted § 106 of the Immigration and Nationality Act, 8 U.S.C. § 1105a (1976 ed.), in order "to create a single, separate, statutory form of judicial review of administrative orders for the deportation . . . of aliens from the United States." H.R.Rep.No.1086, 87th Cong., 1st Sess., 22 (1961), U.S.Code Cong. & Admin.News 1961, pp. 2950, 2966.3 This statutory provision eliminated district court review of deportation orders under § 10 of the Administrative Procedure Act, 5 U.S.C. § 702 (1976 ed.), and replaced it with direct review in the courts of appeals based on the administrative record. Congress carved out one class of cases, however, where de novo review in district court would be available: cases in which the person subject to deportation claims to be a United States citizen.
8
In carving out this class of cases, Congress was aware of our past decisions holding that the Constitution requires that there be some provision for de novo judicial determination of claims to American citizenship in deportation proceedings. See H.R.Rep.No.1086, supra, at 29; H.R.Rep.No.565, 87th Cong., 1st Sess., 15 (1961). In Ng Fung Ho v. White, 259 U.S. 276, 284, 42 S.Ct. 492, 495, 66 L.Ed. 938 (1922), the Court observed:
9
"Jurisdiction in the executive to order deportation exists only if the person arrested is an alien. . . . To deport one who . . . claims to be a citizen, obviously deprives him of liberty, . . . [and] may result also in loss of both property and life; or of all that makes life worth living."
10
We therefore held that a resident of this country has a right to de novo judicial determination of a claim to United States citizenship which is supported "by evidence sufficient, if believed, to entitle [him] to a finding of citizenship." Id., at 282, 42 S.Ct., at 494. See also United States ex rel. Bilokumsky v. Tod, 263 U.S. 149, 152-153, 44 S.Ct. 54, 55-56, 68 L.Ed. 221 (1923). In Kessler v. Strecker, 307 U.S. 22, 34-35, 59 S.Ct. 694, 700, 83 L.Ed. 1082 (1939), we reaffirmed that holding and indicated in dictum that judicial determination of citizenship claims is required where "substantial evidence" is presented to support the citizenship claim.
11
In the instant case, the court below stated that petitioner failed to satisfy the standard of Kessler v. Strecker, supra ; the court thus implicitly held that the standard of "substantial evidence" had been incorporated into § 106(a)(5)(B). Pet. for Cert. ii. We disagree. Although Congress intended § 106 a)(5) to satisfy any constitutional requirements relating to de novo judicial determination of citizenship claims, supra, the statute clearly does not restrict de novo review to cases in which the "substantial evidence" test is met. Rather than incorporating the specific language of Kessler into the statute, as it easily could have done, Congress chose instead to require hearings where there is "a genuine issue of material fact"—a standard that is different from but as familiar as the substantial-evidence standard.4
12
This statutory language is virtually identical to that embodied in Fed.Rule Civ.Proc. 56, which governs summary judgment motions. Under Rule 56, district court litigants opposing summary judgment have a right to a trial whenever there exists a "genuine issue as to any material fact." We may reasonably assume that, in using the language from Rule 56 as the standard for granting de novo district court hearings on citizenship claims, Congress intended the language to be interpreted similarly to that in Rule 56. " '[W]here words are employed in a statute which had at the time a well-known meaning at common law or in the law of this country they are presumed to have been used in that sense unless the context compels to the contrary.' " Lorillard v. Pons, 434 U.S. 575, 583, 98 S.Ct. 866, 871, 55 L.Ed.2d 40 (1978), quoting Standard Oil v. United States, 221 U.S. 1, 59, 31 S.Ct. 502, 515, 55 L.Ed. 619 (1911). The Court of Appeals decision in this case, to the extent that it holds de novo review to be required only where the petitioner presents substantial evidence in support of his claim to citizenship,5 is thus contrary to the plain language and clear meaning of the statute.6
13
Nor does anything in the legislative history indicate that Congress intended to require de novo judicial determination of citizenship claims only when such determinations would be compelled by the Kessler "substantial evidence" standard. Although there are references in the legislative history suggesting that a claim to citizenship must itself be "substantial," these statements are not amenable to the interpretation that substantial evidence is required in support of the claim before a judicial hearing would be provided. See, e. g., H.R.Rep.No.1086, supra, at 29; H.R.Rep.No.565, supra, at 5. While Congress in enacting § 106 sought to "expedite the deportation of undesirable aliens by preventing successive dilatory appeals to various federal courts," Foti v. INS, 375 U.S. 217, 226, 84 S.Ct. 306, 312, 11 L.Ed.2d 281 (1963), this concern hardly justifies the assumption that Congress intended to impose a steep hurdle to judicial determination of citizenship claims. None of the abuses of judicial review catalogued by Congress in the Committee Reports related to citizenship claims. See H.R.Rep.No.565, supra, at 7-13. Rather, Congress was primarily concerned with the filing of repetitive petitions for review and with frivolous claims of impropriety in the deportation proceedings.7 See, e. g., H.R.Rep.No.1086, supra, at 23, 33; 107 Cong.Rec. 19650 (1961) (remarks of Sen. Eastland); 105 Cong.Rec. 12724 (1959) (remarks of Rep. Walter).
14
Since summary judgment principles are controlling here, it follows that a court of appeals cannot refuse to allow a de novo review of a citizenship claim if the evidence presented in support of the claim would be sufficient to entitle a litigant to trial were such evidence presented in opposition to a motion for summary judgment. More specifically, just as a district court generally cannot grant summary judgment based on its assessment of the credibility of the evidence presented, see Poller v. Columbia Broadcasting System, Inc., 368 U.S. 464, 467-468, 82 S.Ct. 486, 488, 7 L.Ed.2d 458 (1962); 6 J. Moore, Federal Practice ¶ 56.02[10], p. 56-45 (2d ed. 1976), so too a court of appeals is not at liberty to deny an individual a de novo hearing on his claim of citizenship because of the court's assessment of the credibility of the evidence, see Pignatello v. Attorney General of the United States, 350 F.2d 719, 723 (CA2 1965). Particularly where the evidence consists of the testimony of live witnesses concerning material factual issues, it will seldom if ever be appropriate to deny a de novo hearing, since "[i]t is only when the witnesses are present and subject to cross-examination that their credibility and the weight to be given their testimony can be appraised." Poller v. Columbia Broadcasting System, Inc., supra, at 473, 82 S.Ct., at 491.
III
15
Applying the appropriate standard to the record in this case, it is apparent that the Court of Appeals erred when it failed to transfer the case to the District Court for a de novo hearing. The Service's proof that petitioner is not a United States citizen would certainly be sufficient, if uncontradicted, to establish his birth in Agrigento, Italy, in July 1927. However, the evidence adduced by petitioner to support his claim of American citizenship creates "genuine issue[s] of material fact" that can only be resolved in a de novo hearing in the District Court.
16
Petitioner acknowledges that the Service's documentary proof pertains to him. This proof includes an entry from the City of Agrigento registry of births for 1927 relating that a 75-year-old handywoman appeared before the registrar and declared that "at 4:00 a. m. on the 17th day of [July] in a house situated in Via Oblati, of a woman who does not want to be named, a male child was born, which she presents to me and to whom she gives the first name of Vincenzo and the surname of Di Paola." Record 667. The city registry also indicates that the child was sent to a foundling home. In addition, the foundling home's registry indicates that a Vincenzo Di Paola was born on July 16, 1927, and was consigned to Crocifessa Porello, petitioner's adoptive mother and wife of Pietro Pianetti, petitioner's adoptive father, on August 26, 1927. The last piece of documentary evidence is a translation from the foundling home record showing that Vincenzo Di Paola was baptized on July 18, 1927.
17
Petitioner claims, however, that the records regarding Vincenzo Di Paola were made at the request of his maternal grandfather to hide the true facts of his illegitimate birth in the United States. Petitioner's evidence in support of his claim to United States citizenship consisted of his own testimony and that of his adoptive parents, Crocifissa and Pietro Pianetti, and his alleged half brother, Carmen Ripolino.
18
According to the testimony of the Pianettis, petitioner was the illegitimate son of Crocifissa Pianetti's sister, Angela Porello, who left her Italian husband and two daughters in 1921 to move to the United States with her cousin Giacomo Ripolino. Through correspondence with Angela, the Pianettis learned in about 1925 that petitioner had been born, that his father was Salvatore Agosto, and that Angela had at least two other children, including Carmen Ripolino. According to the Pianettis, petitioner was sent to live with them and with Angela's parents because Angela could not care for petitioner in Ohio. The Pianettis testified that petitioner was never in the foundling home, but that the documents presented by the Service concerning petitioner's birth in Italy were created by Angela's father to hide the fact that petitioner was his illegitimate grandson.8
19
Carmen Ripolino corroborated the testimony of the Pianettis in important respects. He testified that his mother was Angela Porello, and that she told him when he was a child that he had two half-sisters in Italy and a half-brother whom she had sent there to live with her mother. Although Carmen Ripolino admitted having no independent knowledge that petitioner was the brother who had been sent to Italy, his testimony corroborated that of the Pianettis that Angela Porello gave birth to a son in this country whom she sent to Italy to live with relatives.
20
Petitioner's testimony was only partially consistent with that of his witnesses. Because he possessed a birth certificate belonging to one Joseph Agosto, born in Cleveland in 1921, which had allegedly been sent to petitioner in Italy by another American relative between 1948 and 1950, petitioner maintained for a time that he was that Joseph Agosto, the son of Salvatore Agosto and his wife Carmela Todaro.9 The birth certificate had not actually been issued, however, until sometime after petitioner claimed to have received it. At the same time petitioner also testified that he had been told that his mother's name was Angela Porello and that he lived with his grandfather and the Pianettis after coming to Italy as a small boy. Petitioner acknowledged that he had been known by different names at different times.
21
There is no doubt that petitioner has not told one story consistently throughout his deportation hearings and has attempted to establish his citizenship by relying on any possible shred of evidence. Nor is there any doubt that petitioner has told different stories about his past to different courts.10 But it is noteworthy that, starting in his first deportation hearing, petitioner has acknowledged that he is not certain of his true parental origins, and that he had been told that his mother was Angela Porello. And, given the obvious confusion and uncertainty surrounding the circumstances of petitioner's birth (under either the Service's theory or that of petitioner), it is hardly surprising that petitioner cannot say with any degree of certainty who his true parents might have been.
22
We need not decide whether petitioner's testimony, standing alone, is so inherently incredible in light of its internal inconsistencies as to justify denial of de novo judicial review of the citizenship claim. In this case, the citizenship claim is supported by the testimony of three witnesses whose story, while highly unusual, certainly cannot be rejected as a matter of law. Their disputed testimony concerning petitioner's birth in this country and subsequent upbringing in Italy is in most respects no more unusual than their unchallenged testimony concerning other aspects of this family's relations.11 To accept the present claim to United States citizenship, the District Court would need only to believe that petitioner was born to Angela Porello in Ohio in the mid-1920s; that he was sent by her to live with the Pianettis in Italy; and that Angela's father had the birth records in his native town falsified to prevent public knowledge of the birth of an illegitimate child to his daughter while still permitting him and other members of his family to raise the child.12 These events, while out of the ordinary, are not so extraordinary as to compel disbelief in their occurrence. Even the Board of Immigration Appeals, which rejected petitioner's claim of citizenship, stated that "[i]t is not beyond the realm of possibility that [petitioner's] claim to United States citizenship is legitimate." Pet. for Cert. viii.
23
Since the documentary evidence submitted by the Service would be refuted by the testimony of petitioner's witnesses if that testimony were accepted by the trier of fact, ibid., there is plainly a genuine issue of material fact for the District Court on the question of petitioner's citizenship. Although as the trier of fact the District Court might reject the testimony of these witnesses because of their interest in the outcome, that determination has been committed by Congress to the district courts by § 106(a)(5)(B) of the Act and not to the courts of appeals. The decision of the Court of Appeals must therefore be reversed and the case remanded for proceedings consistent with this opinion.
24
Reversed and remanded.
25
Mr. Justice POWELL, with whom Mr. Justice REHNQUIST joins, dissenting.
26
The Court today has construed a statute in a way that rewards falsehood and frustrates justice. The statute is § 106(a) of the Immigration and Naturalization Act, 8 U.S.C. § 1105a(a) (1976 ed.), adopted in 1961 as part of a general revision of the statutory provisions governing judicial review of deportation orders. The general revision was designed to prevent repetitious litigation of frivolous claims, and "dilatory tactics" used to forestall deportation, by eliminating in most instances any review by district courts of deportation decisions. Foti v. INS, 375 U.S. 217, 224-225, 84 S.Ct. 306, 311-312, 11 L.Ed.2d 281 (1963).1
27
The general rule under § 106(a) leaves deportation matters largely to administrative proceedings, subject to review by a court of appeals to ensure that the administrative decision is supported by "reasonable, substantial, and probative evidence on the record considered as a whole." 8 U.S.C. § 1105a(a)(4) (1976 ed.). Section 106(a)(5), quoted ante, at 751-752 n. 2, provides a narrow exception to the general rule when the deportation proceeding involves a person claiming to be a national of the United States. In such a proceeding, § 106(a)(5) requires a reviewing court of appeals to refer the case to a district court for a de novo trial when the claimant clears two hurdles: first he must show that his claim to United States citizenship is not "frivolous," and then that its resolution turns on "a genuine issue of material fact." As indicated in the Court's opinion, the statute is hardly a model of artful draftsmanship. Even so, it is unnecessary to construe it as the Court does to require a trial de novo in federal district court in response to any asserted claim to citizenship turning on questions of "credibility," however farfetched.
28
There can be no case less deserving of further factual review than this one. Petitioner is an ex-convict, convicted of several crimes involving moral turpitude. He has told five different stories with respect to his nationality, inventing new fabrications to meet the Service's evidence or whenever they served other purposes. See ante, at 759 n. 10. No one has believed his stories. Yet he has proved himself a master at exploiting the safeguards designed to vindicate bona fide—not specious—claims of citizenship. The Court's holding totally frustrates the intent of Congress in enacting § 106(a), in response to the "growing frequency of judicial actions being instituted by undesirable aliens whose cases have no legal basis or merit, but which are brought solely for the purpose of preventing or delaying indefinitely their deportation from this country." H.R.Rep.No.1086, 87th Cong., 1st Sess., 22-23 (1961) U.S.Code Cong. & Admin.News 1961, p. 2967. Rather than putting an end to this abuse of our generous procedures, the Court now concludes that petitioner is entitled to a de novo trial of a claim to citizenship so transparently false that none of the numerous judges who have passed on it believes it.
29
* The Immigration Service claims that petitioner is an Italian by birth named Vincenzo Di Paola Pianetti, and that he is deportable because his most recent entry into the United States w § fraudulent and because he has been convicted of crimes involving moral turpitude. The Service claims that petitioner last entered the United States in 1966, purporting to be a citizen of the United States and relying on the passport of Joseph Agosto. Petitioner claims he was born in Cleveland, Ohio, assigning various dates of birth from 1921 to 1927, and was named Joseph Agosto; that he was sent to Italy when he was 2 or 3 years old; that he lived there with his natural mother's sister and her husband, who later "affiliated" him and gave him their name; and that he returned to the United States in 1951 or 1952. The issue ultimately is one of identity. If petitioner is "Agosto" rather than "Pianetti," he is an American citizen. During the course of the instant proceedings, commenced in 1967, not a single administrative or judicial official has believed that petitioner is not the Italian-born Pianetti.
30
The proceedings in this case have been protracted. On September 5, 1967, the Service issued a show-cause order, and notice of hearing, seeking petitioner's deportation. A full hearing was held before an Immigration Judge. The Service introduced documentary evidence demonstrating that petitioner was born, taken to a foundling home, and baptized in Agrigento, Italy, in 1927, and later was entrusted to the Pianettis. See ante, at 757. The Service also demonstrated that petitioner was married to an Italian woman in 1944 and had two daughters in Italy. At this first hearing, petitioner conceded that the documentary evidence pertained to him, but claimed that he really had been born in Cleveland, Ohio, in 1921, and was named Joseph Agosto. Petitioner produced a marriage certificate showing that he was married in Alaska in 1953, and that he claimed at the time to be 32 years old and not previously married. Petitioner testified that he was sent to Italy when he was 4 or 5, and that his belief that he was born in Cleveland was based entirely on the birth certificate which an uncle sent him from the United States. The Service countered with documentary evidence that the birth certificate pertained to a Joseph Agosto who had been born in Cleveland in 1921 and died in Italy in 1951, and an affidavit from Joseph Agosto's sister that petitioner falsely was using the identity of her deceased brother.
31
The Immigration Judge sustained the charge of the Service and entered a deportation order. He concluded that petitioner "presented no credible evidence to show that he is not the person [Pianetti] whom the Government claims him to be." App. 14. On appeal, the Board of Immigration Appeals remanded the proceedings, "without reviewing the case on the merits," for the Immigration Judge to consider petitioner's contention that he was nondeportable under § 241(f) of the Act, 8 U.S.C. § 1251(f) (1976 ed.), because of his marriage to an American citizen, Mary Marie Agosto.2
32
Following a second hearing, the Immigration Judge again found petitioner not a citizen, deportable (not only because he had entered the United States without inspection but also because he had been convicted of several crimes involving moral turpitude), and not entitled to relief under § 241(f). Again petitioner appealed to the Board of Immigration Appeals. On this appeal petitioner conceded that a Joseph Agosto died in Italy in 1951, but maintained that there were "two Joseph Agostos," both born in Cleveland of the same father but different mothers. Petitioner explained the fact of only one birth certificate by saying that his mother had been the fat er's mistress and that the birth of the legitimate Joseph Agosto had not been recorded. The Board again declined to reach the merits of petitioner's claim to citizenship and remanded for consideration of "forgiveness" relief under § 241(f).
33
It was not until the third hearing in 1971 that petitioner produced three witnesses, the couple who adopted him in Italy and his supposed half-brother from Ohio, who testified in support of petitioner's claim to citizenship. Petitioner abandoned his other stories of birth in 1921 or 1927, and maintained that he was born in Cleveland in 1924, the son of the father of the Joseph Agosto who was born in 1921. On April 11, 1973, the Immigration Judge filed an exhaustive opinion concluding that all of petitioner's various and contradictory stories were fabrications. App. 23-59. The opinion characterized petitioner as having had, since "he was sixteen years of age, . . . a record of deceit, double-dealing and subterfuge." Id., at 32. The Board of Immigration Appeals affirmed. In the context of affirming the denial of discretionary relief from deportation, it observed that petitioner "knowingly gave false testimony before the immigration judge; his claim to citizenship has been knowingly false since its inception." Pet. for Cert. xii.
34
Having finally exhausted his administrative remedies, petitioner appealed to the United States Court of Appeals for the Ninth Circuit. That court issued its memorandum decision on January 24, 1977, and sustained the deportation decision, sayings "The evidence presented to the immigration judge does not disclose a colorable claim to United States nationality; nor does it meet the standard set forth in Kessler v. Strecker, 307 U.S. 22, 35 [59 S.Ct. 694, 700, 83 L.Ed. 1082] (1939)." Id., at ii.
35
We granted certiorari on October 17, 1977. 434 U.S. 901, 98 S.Ct. 294, 54 L.Ed.2d 187. Today the Court hands down a decision entitling petitioner to continue his 11-year saga, commencing with a trial de novo in a district court.
II
36
The first flaw in the Court's reasoning is that it reads out of the statute the threshold requirement that the claim to United States nationality not be "frivolous." The Court muses in a footnote, without support, that "[t]he 'frivolousness' standard apparently refers to the merits of the legal theory underlying the citizenship claim," ante, at 754 n. 4, and therefore has been satisfied in this case because petitioner's theory of citizenship that he was born in this country—is not frivolous.
37
Neither the language of the statute nor its legislative history sheds any helpful light on the intended meaning of the term "frivolous" for purposes of this statute.3 The term may well refer in some instances to the underlying legal theory of a claim. But to say that this is the exclusive meaning is virtually to read the term out of the statute. If all that is required for a claim to be considered nonfrivolous is that the alleged alien maintain that he was born in this country, patently frivolous claims will pass the first threshold of the statute.4 If Congress thought that every claim to birth in this country, however tenuous, merited judicial trial rather than judicial review, one would assume it would have so provided rather than create a dual system of de novo factfinding by both administrative and judicial proceedings. In addition, the legal theory underlying any claim to citizenship almost always will be that the purported citizen was born or naturalized in the United States. According to the Court's theory, therefore, the underlying legal theory of a claim to citizenship rarely will be deemed "frivolous."
38
We normally construe statutes to give meaning to each of their components. I read Congress' intent to have been that the courts of appeals must examine the administrative record to determine whether a claim to citizenship is frivolous for any reason.5 And it would be difficult to find a more frivolous claim to citizenship than this one.6
III
39
Assuming, arguendo, that petitioner's claim is not frivolous, the Court of Appeals was required to transfer the case to a district court for a de novo hearing only if it concluded that a "genuine issue of material fact" existed. The Court today, applying the standard governing summary judgment in the federal courts, concludes that a genuine issue of material fact exists here because "the citizenship claim is supported by the testimony of three witnesses whose story, while highly unusual, certainly cannot be rejected as a matter of law." Ante, at 760. The fallacy in this holding is twofold. First, it applies an erroneous standard. The Court assumes that Congress meant to import the summary judgment standard into an entirely different statutory scheme, simply because the same words appear in both contexts. While this is a superficially appealing approach, it abdicates our responsibility to construe the statute in light of its origin and purpose. The second flaw in the Court's holding lies in its incorrect application of the summary judgment standard itself.
A.
40
Section 106(a)(5) apparently was enacted in order to satisfy the constitutional requirement, first enunciated in Ng Fung Ho v. White, 259 U.S. 276, 42 S.Ct. 492, 66 L.Ed. 938 (1922), that a resident who claims to be a United States citizen and supports the claim with the requisite quantum of proof is entitled to a judicial determination of his claim to citizenship. Id., at 282-285, 42 S.Ct., at 494-495; see H.R.Rep.No.1086, 87th Cong., 1st Sess., 29 (1961). The Court held that two of the petitioners in Ng Fung Ho were entitled to a de novo judicial determination of their citizenship claim because they "supported the claim by evidence sufficient, if believed, to entitle them to a finding of citizenship."7 259 U.S., at 282, 42 S.Ct., at 494.
41
The standard of proof required by Ng Fung Ho for a judicial hearing was restated in two later cases, both decided before the enactment of § 106(a)(5). In United States ex rel. Bilokumsky v. Tod, 263 U.S. 149, 44 S.Ct. 54, 68 L.Ed. 221 (1923)—which, like Ng Fung Ho, was written by Mr. Justice Brandeis—no claim to citizenship had been made. The Court observed, however, that "[i]f, in the deportation proceedings, Bilokumsky had claimed that he was a citizen and had supported the claim by substantial evidence, he would have been entitled to have his status finally determined by a judicial, as distinguished from an executive, tribunal." 263 U.S., at 152, 44 S.Ct., at 55 (citing Ng Fung Ho, supra ) (emphasis supplied). In Kessler v. Strecker, 307 U.S. 22, 34-35, 59 S.Ct. 694, 700, 83 L.Ed. 1082 (1939), the Court again observed, citing Bilokumsky, that an alien is entitled to a trial de novo on a claim of citizenship if supported by "substantial evidence." It is clear, therefore, that the constitutional requirement of a de novo judicial hearing is triggered only if the person claiming citizenship provides some substantial evidentiary support for his claim.
42
The Court's conclusion that Congress intended to set a lower standard in § 106(a)(5) is not supported by the legislative history. The Court acknowledges but disregards the fact that the House Reports antedating enactment of § 106(a)(5) contain repeated references to "substantial" and "genuine" claims to citizenship. See ante, at 755; see also H.R.Rep.No.1086, supra, at 28; H.R.Rep.No.565, 87th Cong., 1st Sess., 13, 15 (1961). In each of these Reports the reference to "a substantial claim of U.S. nationality" immediately precedes the observation that the statute was meant to satisfy the constitutional requirement articulated in Ng Fung Ho.
43
In the face of this unequivocal evidence of legislative intent, the Court errs in concluding that Congress meant to depart from the evidentiary standard stated in Ng Fung Ho, as interpreted in Bilokumsky and Kessler. The Court then compounds its error by holding that § 106(a)(5) places a court of appeals, in reviewing a decision of the Board of Immigration Appeals, in the position of a district court ruling upon a motion for summary judgment at the outset of a trial. Fed.Rule Civ.Proc. 56(c). Although there is congruity in the "genuine issue of material fact" language, found in both § 106(a)(5) and Rule 56(c), there is a controlling difference in the settings in which this language is used.
44
In the usual civil trial, the summary judgment motion is entertained before any hearing has taken place. If sustained, it forecloses all opportunity for the opposing party to present his case before the finder of fact. Subject to appeal, a decision in favor of the movant in effect deprives his opponent of a trial on the facts. The situation to which § 106(a)(5) applies simply is not comparable. That section is part of an elaborate administrative p ocedure in which a claimant may present fully his evidence to an Immigration Judge and then have it reviewed by the Board of Immigration Appeals. There is no summary judgment procedure under the Act and, consequently, no danger that a claimant will be denied a full evidentiary hearing. In this respect, the standard contained in § 106(a)(5) is more like the standard governing directed verdicts, Fed.Rule Civ.Proc. 50, than summary judgments.8
45
Although the Court of Appeals in this case itself did not observe the witnesses who testified on petitioner's behalf, it was not required to ignore completely the unequivocal opinion of the Immigration Judge that petitioner's witnesses had been "coached as to their testimony." Pet. for Cert. viii; see App. 41, and that their stories were fabrications. Even if the Court of Appeals was not in as good a position to judge these matters as a judge ruling on a motion for directed verdict, neither was it as constricted as a judge ruling on a motion for summary judgment. As both motions are governed by the "genuine issue of material fact" standard, there is no reason to adopt the more restrictive but less appropriate analogy.9
46
This case illustrates forcefully the inappropriateness of the summary judgment analogy. Petitioner has had three evidentiary hearings before an Immigration Judge, three appellate reviews by the Board of Immigration Appeals, and one review each by the Court of Appeals for the Ninth Circuit and the United States Supreme Court. One normally would expect that at the end of this elaborate sequence of hearings and reviews, the case would be concluded. Instead, the Court launches petitioner's litigation anew, bowing to a form of words rather than the substance of justice. All that has occurred—the entire sequence of eight proceedings—is merely prologue. Petitioner's case now starts afresh in a district court in the same way that any civil litigation would commence. He is free to change his testimony again—and to round up new witnesses who will swear to it. If he loses once more, he will have an appeal as of right to the Court of Appeals; from there, e may file another petition for certiorari. This additional round of proceedings probably will take several years. Meanwhile, petitioner will continue to enjoy the privileges of American citizenship that he has consistently abused.
B
47
Even if one assumes with the Court that the summary judgment analogy is appropriate, today's decision still is untenable. Under Rule 56(c) itself, there must be a degree of substantiality to the evidence proffered in opposition to a summary judgment motion if the motion is to be defeated. See Firemen's Mutual Ins. Co. v. Aponaug Mfg. Co., 149 F.2d 359, 362 (CA5 1945); Whitaker v. Coleman, 115 F.2d 305, 306 (CA5 1940); 10 C. Wright & A. Miller, Federal Practice & Procedure § 2725, p. 512 (1973); 6 J. Moore, Federal Practice ¶ 56.15[4], p. 56-521 (2d ed. 1976). See also Maroon v. Immigration & Naturalization Service, 364 F.2d 982, 989 (CAS 1966). A court never is required to accept evidence that is inherently incredible or " 'too incredible to be accepted by reasonable minds.' "10 6 Moore, supra, at 56-621. I believe petitioner's evidence reasonably cannot be viewed in any other light.11
48
In concluding that there is a "genuine issue of material fact" presented on this record, under the standard applicable to a summary judgment motion, the Court relies primarily on the testimony of petitioner's adoptive parents and supposed half brother, presented for the first time at petitioner's third hearing before the Immigration Judge. In effect, the Court applies the summary judgment standard as if the only testimony on the record were that adduced at the third hearing. But if the summary judgment standard is to be applied, it is necessary to view the evidence submitted by petitioner in its totality—as if petitioner, in contesting a summary judgment motion, had submitted three sets of depositions containing precisely the same evidence presented by him at the three administrative hearings. A district court then would be confronted with three significantly different stories, each sworn to by petitioner, one belatedly corroborated by his coached kinsmen, and all of them contradicted by authenticated documentary evidence. I doubt that any district court would find petitioner's evidence sufficient, viewed in its totality, to defeat a motion for summary judgment.
IV
49
However one may read the unclear language of § 106(a)(5), it is at least clear that Congress did not intend duplicate judicial proceedings to follow administrative proceedings simply upon demand. If all that § 106(a)(5) requires is a swearing contest even when the Government's case is predicated on documents whose authenticity is uncontested—then every subject of deportation proceedings has it within his power to circumvent the obvious intention of the statutory scheme to minimize dilatory tactics by deportabl aliens. The Court today has opened wide this inviting door.
1
After petitioner's first set of hearings, an Immigration Judge issued a deportation order, App. 18, which petitioner then appealed to the Board of Immigration Appeals. The Board remanded to permit the Immigration Judge to consider petitioner's claim that he was entitled to relief from deportation pursuant to § 241(f), 8 U.S.C. § 1251(f) (1976 ed.), as the husband of a United States citizen, but did not consider petitioner's other challenges to the finding that he was deportable. App. 19-20. At the hearing on remand, the Service lodged an additional charge against petitioner alleging that he as deportable because he had been convicted of crimes of moral turpitude. The Immigration Judge adhered to his finding that petitioner was deportable and not entitled to relief under § 241(f). Record 677-691. On petitioner's second appeal, the Board again remanded for a further determination of petitioner's eligibility for § 241(f) relief and to permit petitioner to produce certain witnesses in support of his claim to United States citizenship. Record 628-633. The deportation order challenged here was issued after petitioner's third set of hearings, App. 23-59, and the Board affirmed the order. Pet. for Cert. iv-xiii.
2
Section 106(a)(5), as set forth in 8 U.S.C. § 1105a(a)(5) (1976 ed.), provides:
"[W]henever any petitioner, who seeks review of an order under this section, claims to be a national of the United States and makes a showing that his claim is not frivolous, the court shall (A) pass upon the issues presented when it appears from the pleadings and affidavits filed by the parties that no genuine issue of material fact is presented; or (B) where a genuine issue of material fact as to the petitioner's nationality is presented, transfer the proceedings to a United States district court for the district where the petitioner has his residence for hearing de novo of the nationality claim and determination as if such proceedings were originally initiated in the district court under the provisions of section 2201 of title 28. Any such petitioner shall not be entitled to have such issue determined under section 1503(a) of this title or otherwise . . . ."
3
Prior to 1961, there was no specific statutory authorization for judicial review of deportation orders. For many years, habeas corpus had been the exclusive judicial remedy for challenging such orders, see Heikkila v. Barber, 345 U.S. 229, 235, 73 S.Ct. 603, 606, 97 L.Ed. 972 (1953), but in 1955, we held that aliens could also obtain review of deportation orders in actions for declaratory and injunctive relief in district court under § 10 of the Administrative Procedure Act, 5 U.S.C. § 702 (1976 ed.), Shaughnessy v. Pedreiro, 349 U.S. 48, 75 S.Ct. 591, 99 L.Ed. 868.
4
In additi n to showing the existence of a "genuine issue of material fact" as to his nationality, a petitioner must demonstrate that his citizenship claim is not "frivolous" to obtain a de novo hearing. § 106(a)(5). The "frivolousness" standard apparently refers to the merits of the legal theory underlying the citizenship claim. A "frivolous" claim would be analogous to one that could not survive a motion to dismiss for failure to state a claim upon which relief can be granted under Fed.Rule Civ.Proc. 12(b)(6). No one has suggested that the legal theory underlying petitioner's claim to American citizenship—that he was born in this country—is frivolous.
5
In addition to holding that petitioner had not satisfied the standard of Kessler v. Strecker,, the Court of Appeals held that petitioner had not made a "colorable" claim to United States citizenship. The dissenting judge stated that she was unable to say that petitioner's claim was not "colorable." The term "colorable" appears nowhere in the statute, and neither opinion hints at its derivation. We cannot tell whether, by use of the word "colorable," the Court of Appeals was applying the proper standard as set forth in § 106(a)(5); if it was applying that standard, we believe it did so erroneously. See Part III, infra.
6
None of the other Courts of Appeals to apply the standard have held that "substantial evidence" is necessary to trigger de novo review under § 106(a)(5)(B). Instead, they have all indicated, although with some variation in language, that the appropriate standard is whether there is a genuine issue of material fact as to petitioner's alienage. See Olvera v. Immigration & Naturalization Service, 504 F.2d 1372, 1375 (CA5 1974); Rassano v. Immigration & Naturalization Service, 377 F.2d 971, 972 (CA 7 1966); Maroon v. Immigration & Naturalization Service, 364 F.2d 982, 989 (CA8 1966); Pignatello v. Attorney General of United States, 350 F.2d 719, 723 (CA2 1965).
7
Section 106 was designed to minimize dilatory and repetitious litigation of deportation orders in several key respects. First, § 106(c) precludes consideration of petitions for review or for habeas corpus where the validity of the deportation order "has been previously determined in any civil or criminal proceeding, unless the petition presents grounds which the court finds could not have been presented in such prior proceeding, or the court finds that the remedy provided by such prior proceeding was inadequate or ineffective to test the validity of the order." 8 U.S.C. § 1105a(c) (1976 ed.). Second, § 106(a)(1) mandates that all petitions for review must be filed within six months of the date of the final deportation order. 8 U.S.C. § 1105a(a)(1). Finally, the statutory review proceeding replaces review in the district court under § 10 of the Administrative Procedure Act, 5 U.S.C. § 702 (1976 ed.), with review directly in the courts of appeals. 8 U.S.C. § 1105a(a) (1976 ed.). See supra, at 752-753.
8
Petitioner and the Pianettis testified that the name Vincenzo Di Paola was probably chosen because July 17 was the feast day for Saint Vincent.
9
Salvatore Agosto was sometimes referred to in the deportation proceedings as Arcangelo Agosto. Petitioner claimed they were different names for the same man who used one name with his wife, Carmela Todaro, and one name with Angela Porello.
10
Petitioner maintained, in connection with a suit to declare his third wife his lawful wife, that he had been only 17 at the time of an earlier marriage in 1944, though in the deportation proceedings he claimed to have been born no later than 1925. In an effort to obtain leniency at his sentencing for falsification of papers in connection with a Federal Housing Administration loan, petitioner permitted his attorney to represent to the court that petitioner had no prior convictions, even though he did at that time have a criminal record in Italy.
11
For example, Carmen Ripolino testified that he did not know who his father was, and that he had two birth certificates, one showing his father as Giacomo Ripolino (the man who brought Angela Porello to this country) and a second showing his father to be one Charles Litizia. In addition, the Pianettis testified to the varied relationships Mrs. Pianetti's sister, Angela Porello, maintained with different men and to her departure from Italy with one of those men, leaving behind a husband and two daughters. Although the Service may not have challenged this other testimony because it was immaterial to the issue of petitioner's citizenship, its lack of materiality and its unflattering character also suggest that the witnesses would have had no reason to testify to those events if they had not occurred.
12
Since only the registrar signed the entry in the registry of births regarding the birth of Vincenzo Di Paola and the witnesses who were present were unable to write and only had the document read to them, it is certainly not entirely implausible that Angela's father was able to have that record and the notation at the foundling home falsified.
1
"[B]y eliminating review in the district courts, the bill [was intended to] obviate one of the primary causes of delay in the final determination of all questions which may arise in a deportation proceeding." 104 Cong.Rec. 17173 (1958) (remarks of Rep. Walter), quoted in Foti v. INS, 375 U.S., at 225 n. 11, 84 S.Ct., at 312 n. 11.
2
On June 3, 1968, in connection with a friendly suit to have Mary Marie Agosto declared his legal wife, petitioner executed an affidavit which contradicted the story told at the first deportation hearing. The affidavit stated that petitioner was born in 1927, and therefore was only 17 when he married his Italian wife in 1944. This would have rendered his first marriage invalid and would have validated his American marriage.
3
The origin of the term in this context seems to have been Ng Fung Ho v. White, 259 U.S. 276, 42 S.Ct. 492, 66 L.Ed. 938 (1922), where the Court articulated the constitutional requirement of a judicial hearing when the petitioner "claims citizenship and makes a showing that his claim is not frivolous . . . ." Id., at 284, 42 S.Ct. at 495. The threshold requirement that the claim not be frivolous was absent from one of the earlier drafts of § 106(a)(5). See H.R.Rep.No.2478, 85th Cong., 2d Sess., 1 (1958).
4
Petitioner himself does not argue that a "frivolous" claim to citizenship can only be one whose underlying legal theory is frivolous. Petitioner's counsel conceded before us that if there were uncontested documentary evidence of birth in Italy and only the alien's sworn statement that he was born in the United States, "that would be a frivolous claim because [the hypothetical case] is really a bare assertion of citizenship without any evidentiary support at all." Tr. of Oral Arg. 10.
5
The courts of appeals are accustomed to determining whether in forma pauperis appeals from denials of habeas corpus petitions are "frivolous," and therefore warrant dismissal, under 28 U.S.C. § 1915(d). Whether such an appeal is considered "frivolous" may depend on either the legal theory or the facts of the case.
6
In Maroon v. Immigration & Naturalization Service, 364 F.2d 982 (CA8 1966), the alleged alien—somewhat like petitioner here—changed his story between the deportation proceedings and judicial review, in the face of solid contrary documentation offered by the Service. The Court of Appeals concluded: "In this situation, petitioner's present claim to be a national of the United States, wholly unsupported by any substantial evidence whatever, and utterly inconsistent with the documents admittedly executed by him, would appear to be frivolous." Id., at 989 (emphasis supplied).
7
In Ng Fung Ho, two of the petitioners' claims of citizenship apparently were not contradicted by independent evidence presented y the Government. Rather, the petitioners had entered the United States lawfully, as the foreign-born sons of a naturalized United States citizen and therefore as citizens themselves, and had been issued "certificates of identity." Later, when immigration officials came to suspect perjury in the earlier proceedings, they sought to deport the petitioners. The petitioners argued in this Court that the immigration authorities had not presented any "real substantial evidence to support them in attempting . . . to set aside the former finding of American citizenship. . . ." Brief for Petitioners in Ng Fung Ho v. White, O. T. 1921, No. 176, p. 33. Thus the determination of citizenship in Ng Fung Ho depended entirely on whether the evidence of the petitioners was believed by the factfinder or disbelieved because of the Service's attempt to discredit it. Perhaps this explains the Court's use of the "sufficient, if believed" language.
8
When a party moves for a directed verdict, he does so after the evidence is in. This is comparable to the situation confronting a court of appeals in a case like this. The formulation of the standard governing summary judgments and directed verdicts is the same with respect to the "genuine issue" rule: "Both motions . . . call upon the court to make basically the same determination—that there is no genuine issue of fact and that the moving party is entitled to prevail as a matter of law." 10 C. Wright & A. Miller, Federal Practice & Procedure § 2713, p. 407 (1973). Yet a major difference between summary judgment and directed verdict is that credibility determinations may enter into the latter but not the former. Unlike a summary judgment motion, "a directed verdict motion typically would be made after the witness had testified and the court could take account of the possibility that he either could not be disbelieved or believed by the jury." Id., at 406.
9
In addition, the Court substitutes its "genuine issue" standard for that used even by some of the Courts of Appeals in cases cited by the Court with approval. For example, in Rassano v. Immigration & Naturalization Service, 377 F.2d 971 (CA7 1967), the petitioner and three supporting witnesses testified that the petitioner's father said he had been naturalized and that both father and son were citizens. They were unable to produce the naturalization papers or to testify that they had seen them. The court held that the evidence was insufficient to raise a genuine issue of material fact, in part because of the untrustworthiness of the testimony. While the Rassano court used the standard of "genuine issue of material fact," in conformity with the statutory language, it surely did not use the summary judgment standard endorsed by the Court today.
10
And while the facts must be viewed in the light most favorable to the party opposing summary judgment, this means no more than that "the party opposing a summary judgment motion is to be given the benefit of all reasonable doubts and inferences in determining whether a genuine issue exists that justifies proceeding to trial." 10 Wright & Miller, supra, at 510 (emphasis supplied).
11
The Board of Immigration Appeals did say: "It is not beyond the realm of possibility that [petitioner's] claim to United States citizenship is legitimate." Pet. for Cert. viii. But the rest of the Board's statements place this one in perspective. Immediately following its acknowledgment that petitioner's claim was not demonstrably impossible, the Board observed that it would have to accept a number of illogical and unrealistic propositions in order to accept petitioner's most recent story. In essence, the Board made clear that the story could not be accepted by reasonable minds; and it concluded ultimately that petitioner's claim to citizenship "[had] been knowingly false since its inception." Id., at xii.
| 12
|
436 U.S. 850
98 S.Ct. 3063
56 L.Ed.2d 751
David B. TERKv.Ladd S. GORDON, etc., et al
No. 77-1042
Supreme Court of the United States
June 12, 1978
June 12, 1978.
PER CURIAM.
1
This case originated as a challenge, under the Privileges and Immunities Clause, U.S.Const., Art. IV, § 2, cl. 1, and under the Fourteenth Amendment, to New Mexico's statutes requiring licenses to hunt game in that State. A three-judge United States District Court upheld the State's statutory provisions insofar as they imposed higher license fees for nonresidents than for residents, but the court also ruled that the statutes governing the allocation of licenses to hunt certain rare species of game were unconstitutional. Plaintiff-appellant Terk, a Texas resident, appeals from that portion of the District Court's judgment that upheld the New Mexico fee discrimination. The defendant-appellees, who are the Director of the State's Department of Game and Fish and the members of the State Game Commission, did not seek review of that portion of the judgment that held the allocation of licenses to be unconstitutional.
2
The issue as to the fee discrimination between residents and nonresidents is controlled by this Court's recent decision in Baldwin v. Montana Fish and Game Comm'n, 436 U.S. 371, 98 S.Ct. 1852, 56 L.Ed.2d 354 (1978). On appellant Terk's appeal, therefore, the judgment of the United States District Court is affirmed. We express no view, however, on the allocation issue as to which no review was sought.
3
Affirmed.
| 12
|
56 L.Ed.2d 728
98 S.Ct. 2122
436 U.S. 816
NATIONAL BROILER MARKETING ASSOCIATION, Petitioner,v.UNITED STATES.
No. 77-117.
Argued Feb. 21, 1978.
Decided June 12, 1978.
Syllabus
The United States brought an antitrust suit against petitioner, a nonprofit cooperative association the members of which are integrated producers of broiler chickens. The complaint alleged that petitioner, which performs various marketing and purchasing functions for its members, had conspired with others, including its members, in violation of § 1 of the Sherman Act. Petitioner asserted that its activities with its members were sheltered from suit under § 1 of the Capper-Volstead Act, which permits "[p]ersons engaged in the production of agricultural products as farmers" to join in cooperative associations. The District Court concluded that the activities of petitioner's members justified their classification as farmers and that the Capper-Volstead protection claimed was therefore available. The Court of Appeals reversed, holding that petitioner's members were not all "farmers" in the ordinary meaning of that word as it was used at the time the Capper-Volstead Act was passed. Held: Because not all of petitioner's members qualify as farmers under the Capper-Volstead Act, it is not entitled to the protection from the antitrust laws afforded by that Act. Case-Swayne Co. v. Sunkist Growers, Inc., 389 U.S. 384, 88 S.Ct. 528, 19 L.Ed.2d 621 (1967). Pp. 822-829.
(a) The language of the Capper-Volstead Act reveal that not all persons engaged in the production of agricultural products are entitled to form cooperatives protected by that Act. P. 823.
(b) The legislative history of the Act reveals that Congress did not intend the protection of the Act to extend to the processors and packers to whom farmers sold their goods, even when the relationship was such that the processors and packers bore a part of the risks of a fluctuating agricultural market. Pp. 824-827.
(c) Those among petitioner's members who own neither a breeder flock nor a hatchery and who maintain no "grow-out" facility at which broiler flocks are raised and whose economic roles are essentially those of packers or processors, are not "farmers" within the meaning of the Capper-Volstead Act. Pp. 827-829.
550 F.2d 1380, 5 Cir., affirmed and remanded.
Richard A. Posner, Chicago, Ill., for petitioner.
John H. Shenefield, for respondent.
Mr. Justice BLACKMUN delivered the opinion of the Court.
1
Once again,1 this time in an antitrust context, the Court is confronted with an issue concerning integrated poultry operations. Petitioner phrases the issue substantially as follows:
2
Is a producer of broiler chickens precluded from qualifying as a "farmer," within the meaning of the CapperVolstead Act, when it employs an independent contractor to tend the chickens during the "grow-out" phase from chick to mature chicken?2
3
The issue apparently is of importance to the broiler industry and in the administration of the antitrust laws.3
4
* In April 1973, in the United States District Court for the Northern District of Georgia, the United States brought suit against petitioner National Broiler Marketing Association (NBMA). It alleged that NBMA had conspired with others not named, but including members of NBMA, in violation of § 1 of the Sherman Act, 26 Stat. 209, as amended, 15 U.S.C. § 1 (1976 ed.). It prayed for injunctive relief and that NBMA "be ordered to make whatever changes are necessary in its organization and operation to insure compliance with the judgment" of the court. Record 10. In its answer NBMA alleged, among other things, that its status, as a cooperative association of persons engaged in the production of agricultural products, sheltered it from antitrust liability for the acts alleged, under § 1 of the Capper-Volstead Act, also known as the Cooperative Marketing Associations Act, 42 Stat. 388, 7 U.S.C. § 291 (1976 ed.).4
5
On motion and cross-motion for partial summary judgment, the District Court concluded that the involvement of all the members of NBMA in the production of broiler chickens was sufficient to justify their classification as "farmers," within the meaning of the Act, and that NBMA therefore was a cooperative entitled to the limited exemption from the antitrust laws the Act afforded. 1975-2 Trade Cases ¶ 60,509.
6
On appeal,5 the United States Court of Appeals for the Fifth Circuit reversed. It held that all the NBMA members were not farmers in the ordinary, popular meaning of that word and as it was employed in 1922 when the Capper-Volstead Act became law. 550 F.2d 1380 (1977). Because of the importance of the issue for the agricultural community and for the administration of the antitrust laws, we granted certiorari. 434 U.S. 888, 98 S.Ct. 260, 54 L.Ed.2d 173 (1977).
II
7
NBMA is a nonprofit cooperative association organized in 1970 under Georgia law.6 It performs various cooperative marketing and purchasing functions on behalf of its members. App. 7.7 Its membership has varied somewhat during the course of this litigation, but apparently it has included as many as 75 separate entities. Id., at 172.
8
These members are all involved in the production and marketing of broiler chickens.8 Production involves a number of distinct stages: the placement, raising, and breeding of breeder flocks to produce eggs to be hatched as broiler chicks; the hatching of the eggs and placement of tho e chicks; the production of feed for the chicks; the raising of the broiler chicks for a period, not to exceed, apparently, 10 weeks; the catching, cooping, and hauling of the "grown-out" broiler chickens to processing facilities; and the operation of facilities to process and prepare the broilers for market. Id., at 7.
9
The broiler industry has become highly efficient and departmentalized in recent years,9 and stages of production that in the past might all have been performed by one enterprise may now be split and divided among several, each with a highly specialized function. No longer are eggs necessarily hatched where they are laid, and chicks are not necessarily raised where they are hatched. Conversely, some stages that in the past might have been performed by different persons or enterprises are now combined and controlled by a single entity. Also, the owner of a breeder flock may own a processing plant.
10
All the members of NBMA are "integrated," that is, they are involved in more than one of these stages of production. Many, if not all, directly or indirectly own and operate a processing plant where the broilers are slaughtered and dressed for market. All contract with independent growers for the raising or grow-out of at least part, and usually a substantial part, of their flocks. Id., at 8. Often the chicks placed with an independent grower have been hatched in the member's hatchery from eggs produced by the member's breeder flocks. The member then places its chicks with the independent grower for the grow-out period, provides the grower with feed, veterinary service, and necessary supplies, and, with its own employees, usually collects the mature chickens from the grower. Generally, the member retains title to the birds while they are in the care of the independent grower. Ibid.
11
It is established, however, ibid.; Brief for Petitioner 5 n. 2, that six NBMA members do not own or control any breeder flock whose offspring are raised as broilers, and do not own or control any hatchery where the broiler chicks are hatched. And it appears from the record that three members do not own a breeder flock or hatchery, and also do not maintain any grow-out facility.10 These members, who buy chicks already hatched and then place them with growers, enter the production line only at its later processing stages.
III
12
The Capper-Volstead Act removed from the proscription of the antitrust laws cooperatives formed by certain agricultural producers that otherwise would be directly competing with each other in efforts to bring their goods to market.11 But if the cooperative includes among its members those not so privileged under the statute to act colle tively, it is not entitled to the protection of the Act. Case-Swayne Co. v. Sunkist Growers, Inc., 389 U.S. 384, 88 S.Ct. 528, 19 L.Ed.2d 621 (1967). Thus, in order for NBMA to enjoy the limited exemption of the Capper-Volstead Act, and, as a consequence, to avoid liability under the antitrust laws for its collective activity, all its members must be qualified to act collectively. It is not enough that a typical member qualify, or even that most of NBMA's members qualify. We therefore must determine not whether the typical integrated broiler producer is qualified under the Act but whether all the integrated producers who are members of NBMA are entitled to the Act's protection.
13
The Act protects "[p]ersons engaged in the production of agricultural products as farmers, planters, ranchmen, dairymen, nut or fruit growers " (emphasis added). A common-sense reading of this language12 clearly leads one to conclude that not all persons engaged in the production of agricultural products are entitled to join together and to obtain and enjoy the Act's benefits: The italicized phrase restricts and limits the broader preceding phrase "[p]ersons engaged in the production of agricultural products . . . ."13
14
The purposes of the Act, as revealed by the legislative history, confirm the conclusion that not all those involved in bringing agricultural products to market may join cooperatives exempt under the statute, and have the cooperatives retain that exemption. The Act was passed in 1922 to remove the threat of antitrust restrictions on certain kinds of collective activity, including processing and handling, undertaken by certain persons engaged in agricultural production. Similar organizations of those engaged in farming, as well as organizations of laborers, were already entitled, since 1914, to special treatme t under § 6 of the Clayton Act, 38 Stat. 731, 15 U.S.C. § 17 (1976 ed.).14 This treatment, however, had proved to be inadequate. Only nonstock organizations were exempt under the Clayton Act, but various agricultural groups had discovered that in order best to serve the needs of their members, accumulation of capital was required. With capital, cooperative associations could develop and provide the handling and processing services that were needed before their members' products could be sold. The Capper-Volstead Act was passed to make it clear that the formation of an agricultural organization with capital would not result in a violation of the antitrust laws, and that the organization, without antitrust consequences, could perform certain functions in preparing produce for market. Mr. Justice Black summarized this legislative history in his opinion for a unanimous Court in Maryland & Virginia Milk Producers Assn. v. United States, 362 U.S. 458, 464-468, 80 S.Ct. 847, 852-854, 47 L.Ed.2d 880 (1960), and it is further discussed in Case-Swayne, 389 U.S., at 391, 88 S.Ct., at 532.15
15
Farmers were perceived to be in a particularly harsh economic position. They were subject to the vagaries of market conditions that plague agriculture generally, and they had no means individually of responding to those conditions. Often the farmer had little choice about who his buyer would be and when he would sell. A large portion of an entire year's labor devoted to the production of a crop could be lost if the farmer were forced to bring his harvest to market at an unfavorable time. Few farmers, however, so long as they could act only individually, had sufficient economic power to wait out an unfavorable situation. Farmers were seen as being caught in the hands of processors and distributors who, because of their position in the market and their relative economic strength, were able to take from the farmer a good share of whatever profits might be available from agricultural production.16 By allowing farmers to join together in cooperatives, Congress hoped to bolster their market strength and to improve their ability to weather adverse economic eriods and to deal with processors and distributors.
16
NBMA argues that this history demonstrates that the Act was meant to protect all those that must bear the costs and risks of a fluctuating market,17 and that all its members, because they are exposed to those costs and risks and must make decisions affected thereby, are eligible to organize in exempt cooperative associations.18 The legislative history indicates, however, and does it clearly, that it is not simply exposure to those costs and risks, but the inability of the individual farmer to respond effectively, that led to the passage of the Act. The congressional debates demonstrate that the Act was meant to aid not the full spectrum of the agricultural sector but, instead, to aid only those whose economic position rendered them comparitively helpless. It was very definitely, special-interest legislation. Indeed, several attempts were made to amend the Act to include certain processors who, according to preplanting contracts, paid growers amounts based on the market price of processed goods; these attempts were roundly rejected.19 Clearly, Congress did not intend to extend the benefits of the Act to the processors and packers to whom the farmers sold their goods, even when the relationship was such that the processor and packer bore a part of the risk.
17
Petitioner suggests that agriculture has changed since 1922, when the Act was passed, and that an adverse decision here "might simply accelerate an existing trend toward the absorption of the contract grower by the integrator," or "might induce the integrators to rewrite their contracts with the contract growers to designate the latter as lessor-employees rather than independent contractors." Brief for Petitioner 13; see id., at 24, 26, and Tr. of Oral Arg. 17. We may accept the proposition that agriculture has changed in the intervening 55 years, but, as the second Mr. Justice Harlan said, when speaking for the Court in another context, a statute "is not an empty vessel into which this Court is free to pour a vintage that we think better suits present-day tastes." United States v. Sisson, 399 U.S. 267, 297, 90 S.Ct. 2117, 2133, 26 L.Ed.2d 608 (1970). Considerations of this kind are for the Congress, not the courts.
IV
18
We, therefore, conclude that any member of NBMA that owns neither a breeder flock nor a hatchery, and that maintains no grow-out facility at which the flocks to which it holds title are raised, is not among those Congress intended to protect by the C pper-Volstead Act. The economic role of such a member in the production of broiler chickens is indistinguishable from that of the processor that enters into a preplanting contract with its supplier, or from that of a packer that assists its supplier in the financing of his crops.20 Their participation involves only the kind of investment that Congress clearly did not intend to protect.21 We hold that such members are not "farmers," as that term is used in the Act, and that a cooperative organization that includes them—or even one of them—as members is not entitled to the limited protection of the Capper-Volstead Act.
19
The judgment of the Court of Appeals is affirmed, and the case is remanded for further proceedings.
20
It is so ordered.
21
Mr. Justice BRENNAN, concurring.
22
I join the Court's opinion. I agree that since several of NBMA's members were not engaged in the production of agriculture as farmers, Case-Swayne Co. v. Sunkist Growers, Inc., 389 U.S. 384, 88 S.Ct. 528, 19 L.Ed.2d 621 (1967), compels the holding that NBMA's activities challenged by the United States cannot be afforded the Sherman Act exemption NBMA asserts. Since that disposition settles this aspect of the suit between the parties, it is unnecessary for the Court to consider, and the Court reserves, the question of "the status under the Act of the fully integrated producer that not only maintains its breeder flock, hatchery, and grow-out facility, but also runs its own processing plant." Ante, at 828 n.21. I write separately only to suggest some considerations which bear on this broader question. I do so because the rationale of the dissent necessarily carries over to that question.
23
* The Capper-Volstead Act, 42 Stat. 388, 7 U.S.C. § 291 et seq. (1976 ed.), like the Sherman Act which it modifies, was populist legis ation which reacted to the increasing concentrations of economic power which followed on the heels of the industrial revolution. The Sherman Act was the first legislation to deal with the problems of participation of small economic units in an economy increasingly dominated by economic titans. Next enacted was § 6 of the Clayton Act, 38 Stat. 730, 15 U.S.C. § 17 (1976 ed.), which provides:
24
"The labor of a human being is not a commodity or article of commerce. Nothing contained in the antitrust laws shall be construed to forbid the existence and operation of labor, agricultural, or horticultural organizations, instituted for the purposes of mutual help, and not having capital stock or conducted for profit, or to forbid or restrain individual members of such organizations from lawfully carrying out the legitimate objects thereof; nor shall such organizations, or the members thereof, be held or construed to be illegal combinations or conspiracies in restraint of trade, under the anti-trust laws."
25
This legislation linked industrial labor and farmers as the kind of economic units of individuals for whom it was thought necessary to permit cooperation—cartelization in economic parlance in order to survive against the economically dominant manufacturing, supplier, and purchasing interests with which they had to interrelate. The failure of § 6 expressly to authorize cooperative marketing activities, and to permit capital stock organizations coverage under it, prompted enactment of the Capper-Volstead Act in 1922 to remedy these omissions. Section 1 of that Act provides, inter alia :
26
"Persons engaged in the production of agricultural products as farmers, planters, ranchmen, dairymen, nut or fruit growers may act together in associations, corporate or otherwise, with or without capital stock, in collectively processing, preparing for market handling, and marketing in interstate and foreign commerce, such products of persons so engaged. . . ."
27
At the time the Capper-Volstead Act was enacted, farming was not a vertically integrated industry. The economic model was a relatively large number of small, individual, economic farming units which actually tilled the soil and husbanded animals, on the one hand, and on the other hand, the relatively small number of large economic units which processed the agricultural products and resold them for wholesale and retail distribution. It was the disparity of power between the units at the respective levels of production that spurred this congressional action. See, e. g., 62 Cong.Rec. 2257 (1922) (remarks of Sen. Norris). Congress was concerned that the farmer, at the mercy of natural forces on one hand, and the economically dominant processors on the other, was being driven from the land and forced to migrate in ever-increasing numbers to the cities.
28
"Senator Capper stated a point of view to be found on almost every page of the congressional debate on his bill, 'Middlemen who buy farm products act collectively as stockholders in corporations owning the business and through their representatives buy of farmers, and if farmers must continue to sell individually to these large aggregations of men who control the avenues and agencies through and by which farm products reach the consuming market, then farmers must for all time remain at the mercy of the buyers.' 62 Cong.Rec. 2058 (1922)." Post, at 841 (footnote omitted).
29
The legislative history makes clear that the regime which Congress created in the Capper-Volstead Act to ameliorate this situation was one of voluntary cooperation. The Act would allow farmers to " 'combine with [their] neighbors and cooperate and act as a corporation, following [their] product from the farm as near to the consumer as [they] can, doing away in the meantime with unnecessary machinery and unnecessary middle men.' That is all this bill attempts to do." 62 Cong.Rec. 2257 (1922) (remarks of Sen. Norris). As the Court notes, however, " c]learly, Congress did not intend to extend the benefits of the Act to processors and packers to whom the farmers sold their goods, even when the relationship was such that the processor and packer bore a part of the risk." Ante, p. 826-827. This fact is demonstrated from several exchanges during the debate clarifying the intent behind the bill and also by the abortive Phipps amendment. In the colloquy between Senators Kellogg and Cummins, quoted in extenso, ante, at 823-824, n.13, an intent not to extend the benefits of the bill to processors of agricultural products is clear:
30
"Mr. CUMMINS . . . Take the flouring mills of Minneapolis: They are engaged, in a broad sense, in the production of an agricultural product. The packers are engaged, in a broad sense, in the production of an agricultural product. The Senator does not intend by this bill to confer upon them the privileges which the bill grants, I assume?
31
"Mr. KELLOGG: Certainly not . . . ." 62 Cong. Rec. 2052 (1922).
32
Debate surrounding the proposed Phipps amendment, quoted ante, at 827 n. 19, the effect of which would have been to exempt, for example, sugar refiners with preplanting contracts, yields a similar understanding. Senator Norris, in leading the successful rejection of the amendment, explained: "The amendment . . . is simply offered for the purpose of giving to certain manufacturers the right to be immune from any prosecution under the Sherman Antitrust Act. . . . They are not cooperators ; they are not producers; it is not an organization composed of producers who incorporate together to handle their own products; that is not it." 62 Cong.Rec. 2275 (1922) (emphasis added). These statements show that Congress regarded both "manufacturers of finished agricultural products" and "processors" as ineligible. Whether or not there is a distinction in economic or other terms between "manufacturers" who refine sugar from beets, or "processors" who mill wheat into flour, both groups were thought of as beyond the reach of § 1—"They are not cooperators." Thus the legislative history demonstrates that the purpose of the legislation was to permit only individual economic units working at the farm level1 to form cooperatives for purposes of "collectively processing, preparing for market, handling, and marketing in interstate and foreign commerce, such products of persons so engaged." This focus on collectives to replace the processors and middlemen is the key to application of the Act's policies to modern agricultural conditions.
II
A.
33
The dissent is correct, of course, that "[t]he nature of agriculture has changed profoundly since the early 1920's when the Capper-Volstead Act was debated and adopted. The reality of integrated agribusiness admittedly antiquates some of the congressional characterizations of farming." Post, at 843. Most NBMA members are fully integrated except for the grow-out stage which they contract out. Rather than groups of single-function farmers forming a collective jointly to handle, process and market their agricultural products, these multifunction integrated units stand astride several levels of agricultural production which Congress in 1922 envisioned would be collectivized. Performing these functions for themselves the allegations of the complaint suggest, they now seek protection of the exemption not to permit collectivized processing but simply as a shield for price fixing. The issue is whether a fully integrated producer of agricultural products performing its own processing or manufacturing and which hence does not associate for purposes of common handling, processing, and marketing is nevertheless "engaged in the production of agricultural products as [a] farme[r]" for purposes of § 1's exemption for such cooperatives if also engaged in traditional farming activity. The dissent frankly recognizes that integrated poultry producers do not neatly fit the limitation Congress signified by the phrase "as farmers," but reads that limitation out of the Act in order to give effect to what it perceives as Congress' desire to aid the agricultural industry generally because of the uncertainty of profits in that industry caused by the combination of weather, fluctuations in demand, and perishability of the product. Elison of the limitation Congress placed on the exemption is sacrificed to this end, and the exemption extended to encompass all persons engaged in the production of agriculture. But that drastic restructuring of the statute is not only inconsistent with Congress' specific intent regarding the meaning of the limitation, but is unnecessary to give continuing effect to its broader purposes. Congress clearly intended, as the discussion in Part I, supra, demonstrates, to withhold exempting processors engaged in the production of agriculture notwithstanding that they bore risks common to agriculture generally, and that they may be "price takers" with respect to the product they sell to large chains of grocery stores. The dissent fails to explain how extending the exemption in the fashion it suggests can be reconciled with the fundamental purpose of this populist legislation to authorize farmers' cooperatives for collective handling, processing, and marketing purposes.
34
The dissent's construction, it seems to me would permit the behemoths of agribusiness to form an exempt association to engage in price fixing, and territorial and market division, so long as these concerns are engaged in the production of agriculture. It is hard to believe that in enacting a provision to authorize horizontal combinations for purposes of collective processing, handling, and marketing so as to eliminate middlemen, Congress authorized firms which integrated further downstream beyond the level at which cooperatives could be utilized for these purposes to combine horizontally as a cartel with license to carve up the national agricultural market. Such a construction would turn on its head Congress' manifest purpose to protect the small, individual economic units engaged in farming from exploitation and extinction at the hands of "these large aggregations of men who control the avenues and agencies through and by which farm products reach the consuming market," 62 Cong.Rec. 2058 (1922) (remarks of Sen. Capper), by exempting instead, and thereby fomenting "these great trusts, these great corporations, these large moneyed institutions" at which the Sherman Act took aim. 21 Cong.Rec. 2562 (1890) (remarks of Sen. Teller). here is nothing in the legislative history, and much to the contrary, to indicate that Congress enacted § 1 to remake agriculture in the image of the great cartels.
B
35
Definition of the term "farmer" cannot be rendered without reference to Congress' purpose in enacting the Capper-Volstead Act. "When technological change has rendered its literal terms ambiguous, the . . . Act must be construed in light of [its] basic purpose." Twentieth Century Music Corp. v. Aiken, 422 U.S. 151, 156, 95 S.Ct. 2040, 2044, 45 L.Ed.2d 84 (1975). I seriously question the validity of any definition of "farmer" in § 1 which does not limit that term to exempt only persons engaged in agricultural production who are in a position to use cooperative associations for collective handling and processing—the very activities for which the exemption was created. At some point along the path of downstream integration, the function of the exemption for its intended purpose is lost, and I seriously doubt that a person engaged in agricultural production beyond that point can be considered to be a farmer, even if he also performs some functions indistinguishable from those performed by persons who are "farmers" under the Act. The statute itself may provide the functional definition of farmer as persons engaged in agriculture who are insufficiently integrated to perform their own processing and who therefore can benefit from the exemption for cooperative handling, processing, and marketing. Thus, in my view, the nature of the association's activities, the degree of integration of its members, and the functions historically performed by farmers in the industry are relevant considerations in deciding whether an association is exempt. The record before us does not provide evidence relevant to these considerations, and there is therefore no basis for appraising NBMA's entitlement to the exemption while it includes members whose operations are fully integrated whether or not they contract rather than perform the grow-out phase.
III
36
If, because of changes in agriculture not envisioned by it in 1922, Congress' purpose no longer can be achieved, there would be no warrant for judicially extending the exemption, even if otherwise it would fall into desuetude. In construing a specific, narrow exemption to a statute articulating a comprehensive national policy, we must, of course, give full effect to the specific purpose for which the exemption was established. But when that purpose has been frustrated by changed circumstances, the courts should not undertake to rebalance the conflicting interests in order to give it continuing effect. Cf. Teleprompter Corp. v. Columbia Broadcasting System, Inc., 415 U.S. 394, 414, 94 S.Ct. 1129, 1141, 39 L.Ed.2d 415 (1974); Fortnightly Corp. v. United Artists, 392 U.S. 390, 401-402, 88 S.Ct. 2084, 2090-2091, 20 L.Ed.2d 1176 (1968). Specific exemptions are the product of rough political accommodations responsive to the time and current conditions. If the passage of time has "antiquated" the premise upon which that compromise was struck, the exemption should not be judicially reincarnated in derogation of the enduring national policy embodied in the Sherman Act.
37
The dissent's reconstruction of the exemption is doubly flawed, for it would frustrate the Act's purpose to protect that segment of agricultural enterprise as to which Congress' purpose retains vitality. The American Farm Bureau Federation, which has filed a brief amicus curiae in this case, "is a voluntary general farm organization, representing more than 2.5 million member families in every State (except Alaska) and Puerto Rico." Brief as Amicus Curiae 2. Speaking for the contract growers—those who actually own the land and husband the chicks from the time they are hatched until just before their slaughter—the Federation argues that extending the exemption to integrators would stand the Act on its head; the integrators who process the fully grown broilers cou d thereby combine to dictate the terms upon which they will deal with the contract growers to the latter's disadvantage.
38
Moreover, there is persuasive evidence that Congress' concern for protecting contract growers vis-a-vis processors and handlers has not abated. In 1968, Congress enacted the Agricultural Fair Practices Act of 1967, 82 Stat. 93, 7 U.S.C. § 2301 et seq. (1976 ed.), designed to protect the "bargaining position" of "individual farmers" by prohibiting "handlers" from interfering with the "producers' " right "to join together voluntarily in cooperative organizations as authorized by law." § 2301. In doing so, Congress legislated specifically to protect contract growers from integrated broiler producers. Section 4(b) of the Act prohibits a "handler" from discriminating against "producers" with respect to any term "of purchase, acquisition, or other handling of agricultural products because of his membership in or contract with an association of producers." 7 U.S.C. § 2303(b) (1976 ed.) (emphasis added). The definition of the term "producer" is identical to that in § 1 of Capper-Volstead, see 7 U.S.C. § 2302(b) (1976 ed.), but the legislative history makes clear that for purposes of this Act, Congress considered integrated broiler producers to be "handlers" and acted to prevent them from preying on contract growers. The Senate Report makes this clear:2
39
"As introduced, [§ 4(b)] prohibited discrimination in the terms of 'purchase or acquisition' of agricultural products. The committee found that this provision would be ineffective with respect to much that it was manifestly intended to prohibit. Thus a broiler contractor might furnish hatching eggs or chicks to a producer under a bailment contract where title remained in the contractor ; or a canning company might furnish seeds or tomato plants to a producer under a similar arrangement. No 'purchase or acquisition' would be involved. The committee amendment would extend this provision to 'other handling' of agricultural products, thereby covering the examples just given and greatly broadening the scope of this provision." S.Rep.No.474, 90th Cong., 1st Sess., 5-6 (1967), U.S.Code Cong. & Admin.News 1968, pp. 1867, 1871. (Emphasis added.) The anomaly of allowing the exemption to those who function more as processors uniquely to disadvantage the contract grower "producers" who today continue to fall within the conception of "farmers" Congress envisioned in 1922, points up the danger of judicially extending the exemption to conditions unforeseen by Congress in 1922.3 The exemption provides a powerful economic weapon for the benefit of one economic interest group against another. However desirable the integrated broiler production system may be, and however needful of the exemption,4 judges should not readjust the conflicting interests of growers and integrators; t is for Congress to address the problem of readjusting the power balance between them. Teleprompter Corp., 415 U.S., at 414, 94 S.Ct., at 1141; Fortnightly Corp., supra, 392 U.S., at 401-402, 88 S.Ct., at 2090-2091.
40
Mr. Justice WHITE, with whom Mr. Justice STEWART joins, dissenting.
41
The majority opinion fails to provide a functional definition of what it means to be a farmer within the sense of the Capper-Volstead Act. We are alternatively told that antitrust protection was not intended for "the full spectrum of the agricultural sector, but, instead . . . only those whose economic position rendered them comparatively helpless," ante, at 826, and then that certain members of the National Broiler Marketing Association are not entitled to protection because they are not big enough to own their own breeder flock, hatchery, or grow-out facility, ante, at 827. The rule of the case evidently is that ownership of one of those facilities is somehow requisite in order to be a farmer. But no attempt is made to link that conclusion to the motivating factors behind an antitrust exemption for agriculture.
42
Historically, perishability of produce forced the farmer to take whatever price he could obtain at the time of the harvest. This one factor, more than any other, underlay the legislative recognition that allowing farmers to combine in marketing cooperatives was necessary for the economic survival of agriculture. "It is folly to suggest to the farmer with a carload of cattle on the market to 'take them home' or to 'haul back his load of wheat' or other commodity." 59 Cong.Rec. 7856 (1920) (Cong. Evans).1
43
Even in a reasonably competitive market, physical inability to wi hhold produce will place a producer at a disadvantage. But the farmer did not face a reasonably competitive market. A theme running through the legislative history almost as persistently as perishability is the farmer's vulnerability to a small number of middlemen, organized, and capable of driving the price down below the farmer's cost of production.2 Senator Capper stated a point of view to be found on almost every page of the congressional debate on his bill: "Middlemen who buy farm products act collectively as stockholders in corporations owning the business and through their representatives buy of farmers, and if farmers must continue to sell individually to these large aggregations of men who control the avenues and agencies through and by which farm products reach the consuming market, then farmers must for all time remain at the mercy of the buyers." 62 Cong.Rec. 2058 (1922).3
44
The aid extended to farmers by the Capper-Volstead Act was of a very special variety. It was not a system of price supports or surplus purchases. The assistance offered farmers by the Capper-Volstead Act was to allow combination in a way that would otherwise violate the antitrust laws. Such protection was chosen for a specific purpose. A Government price support program could lift price as surely as allowing agricultural cooperatives to operate, if lifting price were the only objective. The specific goal of permitting agricultural organizations was to combat, and even t supplant, purchasers' organizations facing the farmer.
45
Economics teaches that the result in such circumstances is "bilateral monopoly" with a potentially beneficial impact on the eventual consumer and a sharing of cartel profits between the organized suppliers and the organized buyers.4 The House Report for this reason concluded that the organization of agricultural cooperatives could actually lead to a lowering of the price paid by consumers,5 if the middleman were eliminated altogether. Senator Norris elaborated that the purpose of the bill was to permit farmers " 'to combine with [their] neighbors and cooperate and act as a corporation, following [their] product from the farm as near to the consumer as [they] can, doing away in the meantime with unnecessary machinery and unnecessary middle men.' That is all this bill attempts to do." 62 Cong.Rec. 2257 (1922).
46
The legislative history thus comports with the economic reality of farming, and provides a consistent rationale for an agricultural antitrust exemption. Farmers were price takers because their goods could not be stored, and because they dealt with a small number of well-organized middlemen.
47
The nature of agriculture has changed profoundly since the early 1920's when the Capper-Volstead Act was debated and adopted. The reality of integrated agribusiness admittedly antiquates some of the congressional characterizations of farming. But this Court has interpreted other statutory exemptions in the light of a changing economy,6 and the Court errs in failing to apply the sense and wording of the agriculture exemption because the industry's organization has changed.
48
The important reasons for granting antitrust immunity to farmers have not changed. Their produce is still, in large part, incapable of being withheld for a higher price. And in this case, that factor is particularly relevant. The overwhelming demand is for fresh, not frozen, 8-to-10-week-old broiler chickens, and integrators must sell their produce within four days of slaughter.7 The result is a buyer's market. And the buyers in this market are few and powerful: "[T]he market for broilers is oligopsonistic, dominated by large retail chains such as A & P, Kroger and Safeway and institutional food outlets such as Kentucky Fried Chicken."8 A recurrent pattern of prices below actual cost to the producer has been observed since the start of the current decade.9
49
All of this makes the present case a very poor one in which to depart from the wording of the antitrust exemption for farmers. Broiler chickens are agricultural products.10 Integrators produce them. Hence, integrators are "persons engaged in the production of agricultural products." They own the "crop" from chicks to dressed broilers.11 They are engaged in the production of agricultural products as farmers, within the meaning of 7 U.S.C. § 291 (1976 ed.).
50
The majority's insistence that Capper-Volstead protection not be extended unless the broiler producers own a breeder flock, hatchery, or grow-out facilit is sought to be explained by the rationale that "[t]he economic role" of a producer who does not own one of these facilities "is indistinguishable from that of [a] processor that enters into a preplanting contract with its supplier . . .." Ante, at 827-828. Such processors were sought to be included within the Act by Senator Phipps' amendment, which was rejected.
51
It is inaccurate to equate broiler producers with processors of agricultural commodities, even those with preplanting contracts. Such an equation ignores the important distinction that members of the NBMA are all producers of broilers, whereas a mere processor of an agricultural commodity is not a producer. The Act extends protection to "[p]ersons engaged in the production of agricultural products as farmers." (Emphasis added.) Opposition to the Phipps amendment was centered on precisely the fact that it would extend protection to those who did not produce agricultural commodities.
52
A leading critic explained his opposition: "The amendment . . . is simply offered for the purpose of giving to a certain class of manufacturers the right to be immune from any prosecution under the Sherman Antitrust Act . . . . They are not cooperators; they are not producers; it is not an organization composed of producers who incorporate together to handle their own products; that is not it." 62 Cong.Rec. 2275 (1922) (Sen. Norris). The problem with the proposal, therefore, was not that processing was involved. The statute's own words are conclusive that the activity of processing by producers was to be exempted from antitrust scrutiny.12 The objection to Senator Phipps' proposal was that processors who were not also producers were protected.
53
This hostility to Senator Phipps' amendment was understandable, given the frequent legislative references to the pernicious effect of middlemen. But NBMA members are not middlemen. Whether or not they own hatcheries or grow-out facilities, they are producers of agricultural commodities.13 They enter the production system before the chickens are hatched, and withdraw only at the time the dressed broilers are sold. They own the chickens throughout the raising process. They should be allowed to "follo[w their] product from the farm as near to the consumer as [they] can."
54
There is a functional dimension to this dichotomization of producers and processors. It involves the realities of risk-bearing. The Phipps amendment extended protection to manufacturers who paid a price for raw agricultural products that was "controlled by or dependent upon the price received by the manufacturer for the finished commodity by contract entered into before the production of such agricultural product or products." Id., at 2273. Hence, the risk held in common by the Phipps-type processors and actual roducers is only the fluctuation of final market price. All other risks are borne exclusively by the producer, including fluctuating prices for feed and medicine (all of which the producers supply to the grow-out facilities), damage in transit, and risk of death at any point in the growing process. All of these risks are identically suffered by NBMA members, whether or not they own their own breeder flocks, hatcheries, or grow-out facilities, because of the cost-plus nature of the grow-out contracts. The majority unwarrantedly relies upon the fact that the Senate rejected antitrust immunity for Phipps-type processors, who shared only one of these risks, to conclude that parties sharing all these elements of risk should also be denied protection.
55
There is cause to applaud the majority opinion in some respects: most importantly in its studious avoidance of any embracing of the United States' point of view. The United States urges that, in determining what subclass of agricultural producers should be considered farmers, attention must focus on ownership of land and husbanding of flocks.
56
"The integrators are not 'actual farmers' and do not claim to be so. They do not till the land or husband the flocks. They do not own the land on which the flocks are raised." Brief for United States 14.
57
"Petitioner therefore draws no sustenance from the fact that both sharecroppers and the owners of sharecropped land may be 'farmers': the sharecroppers work the farmland and the owners own it. Integrators do neither." Id., at 14 n. 28.
58
Tying antitrust exemption to ownership of land has no legal or economic validity.
59
Under the United States' theory, an integrator of the type found unprotected in today's opinion could achieve antitrust exemption by purchasing the land on which the grow-out facility was maintained (perhaps leasing it back to the independent "grower"). Or he could achieve protection by hiring his grower as an employee, thereby achieving surrogate status for himself as a husbander of flocks. The anomalous aspect of either of these steps is that antitrust protection would thereby be attained by an expansion of the size of an operation—that is entirely the wrong direction, based on the majority's reading of congressional sentiment (with which I largely concur) that small, nonintegrated farmers were those most to be protected by the Act.14
60
The United States cites 20 instances from the congressional debates assertedly supporting its view that the proper test involves ownership of land or tilling the soil. Brief for United States 13, and nn. 21-27. Without exception, however, those citations refer to landowning or tilling merely in a shorthand way. It was customary throughout this long debate to observe Representatives and Senators filling pages of the Congressional Record with observations on agriculture's focal role in the American Republic, but one will search in vain for any discussion of why ownership of land was a logical prerequisite to antitrust exemption for a farmer who, in response to the strains of price taking, joined an agricultural marketing association.
61
The cumulative weight of the legislative history is that antitrust protection was needed for the cooperative efforts of those unable to combine in corporate form, whose product was thrown on the market in inelastic supply, where it faced an elastic demand. Perishability of agricultural product figured far more realistically than ownership of land as a reason for the inelastic supply of farmers' produce at market time. And it was that inelastic supply that made farmers so very vulnerable to oligopsonistic demand. Put plainly, farmers had to sell but middlemen did not have to buy.
62
Antitrust exemption should be extended to agricultural producers who partake in substantially all of the risks of bringing a crop from seed to market, or, in this case, from chick to broiler. This is what it means to be a farmer. This rule would not exempt mere processors of agricultural produce, as the Phipps amendment had sought to do. It does not tie antitrust exemption to the irrelevant criterion of ownership of land, or tilling of the soil. But it does prove faithful, in a way the majority formulation does not, to the economic realities underlying Congress' concern for agriculture: the perishability of product and organization of purchaser that make the individual farmer a price taker.
63
I respectfully dissent.
1
See Bayside Enterprises, Inc. v. NLRB, 429 U.S. 298, 97 S.Ct. 576, 50 L.Ed.2d 494 (1977).
2
The Court of Appeals described the issue in this manner:
"We must decide whether broiler industry companies that neither own nor operate farms can be 'farmers' within the meaning of a 1922 federal statute called the Capper-Volstead Act, which gives farmers' cooperatives some measure of protection from the antitrust laws" (footnote omitted). 550 F.2d 1380, 1381 (CA5 1977).
3
Nineteen States have filed a brief amicus curiae and assert interests as antitrust litigants. See In re Chicken Antitrust Litigation, 407 F.Supp. 1285 (ND Ga.). See also Brown, United States v. National Broiler Marketing Association: Will the Chicken Lickin' Stand?, 56 N.C.L.Rev. 29 (1978); Department of Agriculture, Farmer Cooperative Service, Legal Phases of Farmer Cooperatives (1976); Note, Trust Busting Down on the Farm: Narrowing the Scope of Antitrust Exemptions for Agricultural Cooperatives, 61 Va.L.Rev. 341 (1975).
4
Section 1 of the Capper-Volstead Act provides in pertinent part:
"Persons engaged in the production of agricultural products as farmers, planters, ranchmen, dairymen, nut or fruit growers may act together in associations, corporate or otherwise, with or without capital stock, in collectively processing, preparing for market, handling, and marketing in interstate and foreign commerce, such products of persons so engaged. Such associations may have marketing agen ies in common; and such associations and their members may make the necessary contracts and agreements to effect such purposes . . . ."
The statute further provides that any such association must be operated for the mutual benefit of its members; that it may not pay dividends of more than 8% annually on its stock or membership capital; and that it "shall not deal in the products of nonmembers to an amount greater in value than such as are handled by it for members." Section 2 of the Act, 7 U.S.C. § 292 (1976 ed.), provides for certain regulation of the association by the Secretary of Agriculture.
5
In order to facilitate the appeal, the United States, after the District Court's decision, amended the complaint to limit its allegations of conspiracy to the members of NBMA. App. 94-95. This was done without prejudice to any later renewal of allegations abandoned by the amendment. Id., at 91. Noting that the United States did not dispute that if NBMA were a qualified cooperative, the exemption afforded by the Capper-Volstead Act provided a complete defense to the amended complaint, and restating its conclusion that NBMA's members were entitled to join in a cooperative under the Act, the District Court dismissed the amended complaint with prejudice. Id., at 105-108; 1976-1 Trade Cases ¶ 60,801.
6
Georgia Cooperative Marketing Act, Ga.Code § 65-201 et seq. (1975). The Act authorizes cooperative associations of "persons engaged in the production of . . . agricultural products." § 65-205. When first organized, NBMA was chartered as a cooperative association with capital stock. In December 1973, after the complaint in this suit had been filed, its articles of incorporation were amended to authorize the cancellation of its capital stock and the conversion of the association to a nonprofit membership cooperative association not having stock. App. 6.
There is no suggestion by the parties that this change in organization in any way affects the issue presented in the case.
7
The record includes more specific but nevertheless limited references to NBMA's activities. It has been involved in the purchasing of feed ingredients and of other specialized products used by its members in raising broilers and preparing them for market, in market research and planning, and in conducting a foreign trade sales program. Id., at 137-139. The full range of NBMA's activities may well be put in issue on remand.
8
Broilers are chickens that are slaughtered at 7 to 9 (or 8 to 10) weeks of age and processed for sale to supermarkets, restaurants, hotels and other institutions. Id., at 8, 93, 98. The United States has conceded that, for the purposes of this litigation, a broiler chicken is an agricultural product. Id., at 7.
9
Compare, for example, Department of Agriculture, Agricultural Adjustment Administration, W. Termohlen, J. Kinghorne, & E. Warren, An Economic Survey of the Commercial Broiler Industry (1936), with V. Benson & T. Witzig, The Chicken Broiler Industry: Structure, Practices, and Costs (Dept. of Agriculture, Economic Rep.No.381, 1977). See generally E. Roy, Contract Farming and Economic Integration, ch. 4, "Broiler Chickens" (2d ed. 1972); Department of Agriculture, Packers and Stockyards Administration, The Broiler Industry: An Economic Study of Structure, Practices and Problems (1967); Ohio Agricultural Research and Development Center, B. Marion & H. Arthur, Dynamic Factors in Vertical Commodity Systems: A Case Study of the Broiler System (1973).
10
See Table G-1, and the data as to Members 2, 3, and 20, attached to affidavit of I. R. Barnes, submitted by petitioner and accepted as to accuracy by the United States. Record 467; App. 187-188.
11
The Act does not remove from the general operation of the antitrust laws the dealings of such cooperatives with others. United States v. Borden Co., 308 U.S. 188, 203-205, 60 S.Ct. 182, 190, 191, 84 L.Ed. 181 (1939).
12
See Malat v. Riddell, 383 U.S. 569, 571, 86 S.Ct. 1030, 1032, 16 L.Ed.2d 102 (1966); Addison v. Holly Hill Fruit Products, Inc., 322 U.S. 607, 618, 64 S.Ct. 1215, 1221, 88 L.Ed. 1488 (1944).
13
The report on the bill that became the Act stressed that the limitations on "the kind of associations to which the legislation applies" were "aimed to exclude from the benefits of this legislation all but actual farmers and all associations not operated for the mutual help of their members as such producers." H.R.Rep.No.24, 67th Cong., 1st Sess., 1 (1921). See also H.R.Rep.No.939, 66th Cong., 2nd Sess., 1 (1920).
Senator Kellogg, a supporter of the bill, read this language to have a restrictive meaning:
"Mr. CUMMINS. . . . Are the words 'as farmers, planters, ranchmen, dairymen, nut or fruit growers' used to exclude all others who may be engaged in the production of agricultural products, or are those words merely descriptive of the general subject?
"Mr. KELLOGG. I think they are descriptive of the general subject. I think 'farmers' would have covered them all.
"Mr. CUMMINS. I think the Senator does not exactly catch my point. Take the flouring mills of Minneapolis: They are engaged, in a broad sense, in the production of an agricultural product. The packers are engaged, in a broad sense, in the production of an agricultural product. The Senator does not intend by this bill to confer upon them the privileges which the bill grants, I assume?
"Mr. KELLOGG. Certainly not; and I do not think a proper construction of the bill grants them any such privileges. The bill covers farmers, people who produce farm products of all kinds, and out of precaution the descriptive words were added.
"Mr. TOWNSEND. They must be persons who produce these things.
"Mr. KELLOGG. Yes; that has always been the understanding." 62 Cong.Rec. 2052 (1922).
14
Section 6 of the Clayton Act reads:
"The labor of a human being is not a commodity or article of commerce. Nothing contained in the antitrust laws shall be construed to forbid the existence and operation of labor, agricultural, or horticultural organizations, instituted for the purposes of mutual help, and not having capital stock or conducted for profit, or to forbid or restrain individual members of such organizations from lawfully carrying out the legitimate objects thereof; nor shall such organizations, or the members thereof, be held or construed to be illegal combinations or conspiracies in restraint of trade, under the antitrust laws."
15
See also, e. g., 59 Cong.Rec. 7851-7852 (1920) (remarks of Rep. Morgan); id., at 8017 (remarks of Rep. Volstead). See generally Ballantine, Co-operative Marketing Associations, 8 Minn.L.Rev. 1 (1923); L. Hulbert, Legal Phases of Cooperative Associations 43-47 (Department of Agriculture Bull. No. 1106, 1922).
The Court specifically has acknowledged the relationship of the exemption for labor unions and that for farm cooperatives:
"These large sections of the population—those who labored with their hands and those who worked the soil—were as a matter of economic fact in a different relation to the community from that occupied by industrial combinations. Farmers were widely scattered and inured to habits of individualism; their economic fate was in large measure dependent upon contingencies beyond their control." Tigner v. Texas, 310 U.S. 141, 145, 60 S.Ct. 879, 881, 84 L.Ed. 1124 (1940).
See also Liberty Warehouse Co. v. Tobacco Growers, 276 U.S. 71, 92-93, 48 S.Ct. 291, 295-296, 72 L.Ed. 472 (1928); Frost v. Corporation Comm'n, 278 U.S. 515, 538-543, 49 S.Ct. 235, 243-245, 73 L.Ed. 483 (1929) (Brandeis, J., dissenting).
16
See, e. g., 59 Cong.Rec. 8025 (1920) (remarks of Rep. Hersman); id., at 9154 (extended remarks of Rep. Michener); 61 Cong.Rec. 1040 (1921) (remarks of Rep. Towner); 62 Cong.Rec. 2048-2049 (1922) (remarks of Sen. Kellogg); id., at 2058 (remarks of Sen. Capper).
17
Essentially the same argument was made and rejected by the Court in Case-Swayne Co. v. Sunkist Growers, Inc., 389 U.S. 384, 393-396, 88 S.Ct. 528, 533-535, 19 L.Ed.2d 621 (1967), in which it concluded that a cooperative of orange growers, which included some members who operated packing houses but grew no fruit, was not entitled to the protection of the Act.
18
NBMA asserts that the integrator bears 90%, or more, of broiler production costs, as compared with the grower's 10%, or less. Tr. of Oral Arg. 13; Brief for Petitioner 16, 21.
19
This amendment, repeatedly introduced by Senator Phipps, would have inserted the following language after "nut or fruit growers" (see n. 4, supra ):
"and where any such agricultural product or products must be submitted to a manufacturing process, in order to convert it or them into a finished commodity, and the price paid by the manufacturer to the producer thereof is controlled by or dependent upon the price received by the manufacturer for the finished commodity by contract entered into before the production of such agricultural product or products, then any such manufacturers." 62 Cong.Rec. 2227, 2273-2275, 2281 (1922).
20
The dissent suggests, post, at 849, that petitioner's members "partake in substantially all of the risks of bringing a crop . . . from chick to broiler." Although it is true that petitioner's members bear some of the risks associated with bringing each flock to market, they do not bear all the risks. Growers dealing with many of petitioner's members, including M2, M3, and probably M20, receive no payment for their labor if a flock is lost, due, in some cases, to the weather, and in other cases, to disease. See Table G-2, App. 195. And, perhaps more importantly, petitioner's members do not bear all the risks associated with changes in demand over a longer period of time. Very few of petitioner's members, not including M2 or M3, provide the growers with whom they deal anything more than "informal assurances" that the member will continue to place flocks with the grower and therefore that the grower will receive a return on the investment he has in his grow-out facilities. See Table G-7, App. 219.
21
Because we conclude that these members have not made the kind of investment that would entitle them to the protection of the Act, we need not consider whether, even if they had, they would be ineligible for the protection of the Act because their economic position is such that they are not helplessly exposed to the risks about which Congress was concerned. Thus we need not consider here the status under the Act of the fully integrated producer that not only maintains its own breeder flock, hatchery, and grow-out facility, but also runs its own processing plant. Neither do we consider the status of the less fully integrated producer that, although maintaining a grow-out facility, also contracts with independent growers for a large portion of the broilers processed at its facility.
There is nothing in the record that would allow us to consider whether these integrators are "too small" to own their own breeder flocks, hatcheries, or grow-out facilities, or whether, because of the history of their economic development, they have concentrated only on the feed production and processing aspects of broiler production.
1
See, e. g., 59 Cong.Rec. 7855-7856 (1920) (remarks of Rep. Evans:
"[T]he liberty sought in this bill for the man who tills the soil"); id., at 8017 (remarks of Rep. Volstead); id., at 8022 (remarks of Rep. Sumners); id., at 8025 (remarks of Rep. Hersman); id., at 8026 (remarks of Rep. Towner: "[T]his privilege is not to dealers or handlers or speculators for profit; it is limited to the producers themselves"); id., at 8033 (remarks of Rep. Fields); 61 Cong.Rec. 1034 (1921) (remarks of Rep. Walsh); id., at 1037 (remarks of Rep. Blanton); id., at 1040 (remarks of Rep. Towner: "The farmer is an individual unit. He must manage his own farm. He must have his own home"); id., at 1044 (remarks of Rep. Hersey); 62 Cong.Rec. 2048, 2050 (1922) (remarks of Sen. Kellogg, noting the "individualistic nature of the farmer's occupation" and describing a farmer as "a small holder of land"); id., at 2051 (remarks of Sen. Kellogg, observing that the legislation was designed to encourage the farmer "in his ownership, in the occupation of his farm, and in the cultivation of his own land"); id., at 2052 (remarks of Sens. Cummins, Kellogg, and Townsend); id., at 2156 (remarks of Sen. Walsh, observing that the legislation protects only "an organization of the producers themselves of the product of the farm"); id., at 2 58-2059 (remarks of Sen. Capper).
2
Secretary Freeman, in recommending passage of the Agricultural Fair Practices Act, on behalf of the United States Department of Agriculture, said:
"Cooperative action in agricultural production and marketing is increasing. It is growing in response to the need, (1) to achieve more orderliness and efficiency in production and marketing, and (2) to protect and improve bargaining relationships between producers and marketing firms in the face of major changes taking place in the marketing system.
"These changes include the growing integration of production and marketing of agricultural products, the increased control of these functions by large, diversified corporations, and the expanded use of contracting by such corporations to meet their needs. Developments such as these weaken the marketing and bargaining position of individual producers." Hearings on S. 109 before a Subcommittee of the Senate Committee on Agriculture and Forestry, 90th Cong., 1st sess., 3-4 (1967) U.S.Code Cong. & Admin.News 1968, pp. 1867, 1875. (Emphasis added.)
3
The dissenting opinion finds helpful in refuting the construction of the exemption suggested in this opinion two brief excerpts from the legislative history, quoted post, at 848 n. 14. These statements merely indicate that a processor like "Mr. Armour" who operates a farm would be entitled, free from antitrust liability, to cooperate with other producers in the common handling, processing, and marketing of the products they grow. Nothing in these statements suggests that the fact of farm ownership, however, would confer upon "Mr. Armour" the privilege to conspire with "Mr. Swift" to fix prices in their processing businesses. The dissent's assertion, moreover, that the third proviso of 7 U.S.C. § 291 (1976 ed.) allows a food processor by becoming a producer as well to acquire antitrust exemption for whatever he produces and up to 50% of the product of others is surely erroneous. Both the plain language of the proviso and the statement of Senator Walsh quoted indicate that the privilege to process up to 50% of nonmember producers' products while retaining the exemption belongs to the exempt association, not its members. Indeed, the full colloquy between Senators Kellogg and Walsh indicates that the intent was to exclude processors from the exemption with respect to their processing. "The object being that a few farmers should not organize a corporation simply as a selling agency and not personally really be cooperative members." 62 Cong.Rec. 2268 (1922) (remarks of Sen. Kellogg).
The statement of Senator Kellogg quoted, moreover, refers to an amendment which was not passed and which is simply irrelevant.
4
See Brown, United States v. National Broiler Marketing Association: Will the Chicken Lickin' Stand? 56 N.C.L.Rev. 29 (1978).
1
Congressman Evans was commenting on an earlier version of the bill.
"[T]he cooperative association is most helpful and its widest field of operation is in those products which are not sold upon exchanges . . . take the fruit crop, the apple crop, the potato crop. It must be harvested at a certain time. . . . You can not dump all the production on the country at once and have the farmer receive a good price." 62 Cong.Rec. 2052 (1922) (Sen. Kellogg). See also id., at 2263 (Sen. Hitchcock).
2
See, e. g., Senator Capper's speech, id., at 2058, summing up his support for "growers . . . [who were] compelled to dump [their products] on a glutted market at prices below cost of production."
3
"Agriculture sells its product to the highest bidder in a restricted market. It sells in this sort of market at the price fixed by purchasers. . . . There must be given to agriculture some compensatory advantage to offset the present economic advantage which industry holds by reason of the fact that it can write into the selling price which it fixes all cost of production plus a profit." 59 Cong.Rec. 8022 (1920) (remarks of Cong. Sumners on an earlier version of the bill). "Operating individually, [the farmer] is helpless and falls an easy victim to the organized operators who deal in his output." Id., at 8025 (remarks of Cong. Hersman on earlier bill). "The farmers are not asking a chance to oppress the public, but insist that they should be given a fair opportunity to meet business conditions as they exist—a condition that is very unfair under the present law. Whenever a farmer seeks to sell his products he meets in the market place the representatives of vast aggregations of organized capital that largely determine the price of his products. Personally he has very little, if anything, to say about the price." Id., at 8033 (remarks of Cong. Fields on earlier bill). The Congressman stressed that the bill would give farmers "protection against the gamblers in agricultural products, who rob the producer with one hand and the consuming public with the other." Ibid. The farmer "stands defenseless against combinations of corporations. He finds that when he goes out to do business in the world that he has to do business with a combination that represents 40 or 50 or 100,000 individual incorporators, but the farmer is a unit and he can not incorporate." 61 Cong.Rec. 1040 (1921) (remarks of Cong. Towner on earlier bill). "[I]t is better to have the control of producers extend nearer than now to consumers as against the control of prices by the speculator, who has no concern in the maintenance of stable prices but whose concern is only his immediate profit." Id., at 1041 (remarks of Cong. Sumners on earlier bill). "[Cooperatives] have tended to prevent much of the gambling in foodstuffs and to eliminate many of the useless middlemen that stand between the producers, the retailers, and the consumers." H.R.Rep.No.24, 67th Cong., 1st Sess., 3 (1921).
4
See G. Stigler, The Theory of Price 207-208 (3d ed. 1966); M. Friedman, Price Theory 191-192 (1976); G. Becker, Economic Theory 94-95 (1971).
5
H.R.Rep. No. 24, supra, n. 3, at 3.
6
See, e. g., Connell Constr. Co. v. Plumbers & Steamfitters, 421 U.S. 616, 95 S.Ct. 1830, 44 L.Ed.2d 418 (1975) (labor exemption); Meat Cutters Local 189 v. Jewel Tea Co., 381 U.S. 676, 85 S.Ct. 1596, 14 L.Ed.2d 640 (1965) (labor exemption); and SEC v. National Securities, Inc., 393 U.S. 453, 89 S.Ct. 564, 21 L.Ed.2d 668 (1969) (concerning the McCarran-Ferguson Act exemption for insurance).
7
Brown, United States v. National Broiler Marketing Association : Will the Chicken Lickin' Stand?, 56 N.C.L.Rev. 29, 44 (1978).
8
Ibid.
9
Ibid.
10
See ante, at 820 n. 8.
11
For most of the NBMA members, of course, ownership starts even earlier with the eggs produced by their own breeder flock.
12
The Act explicitly protects farmers who associate for the purpose of "collectively processing, preparing for market, handling, and marketing in interstate and foreign commerce, such products of persons so engaged." And the produce of a cooperative's own members need comprise no more than 50% of the total handled by the cooperative; so it was clear that some members could be doing more processing than producing of agricultural commodities. They would still be entitled to protection because what produce they did raise was contributed to the cooperative.
13
This fact distinguishes Case-Swayne Co. v. Sunkist Growers, Inc., 389 U.S. 384, 88 S.Ct. 528, 19 L.Ed.2d 621 (1967). Capper-Volstead Act protection was denied to orange growers cooperatives in that case because they included several "non-producer interests" in the form of orange processors who did not themselves grow any citrus at all. All of the members of NBMA, by contrast, produce broiler chickens. Some contract out various stages of the growing process, but all members own the agricultural product throughout its production, from chick to broiler.
14
The concurring opinion insists that the interpretation presented here "would permit the behemoths of agribusiness to form an exempt association . . . so long as these concerns are engaged in the production of agriculture." Ante, at 834-835. If this is a fatal flaw, it is shared equally by the majority opinion, which conditions exempt status on ownership of a breeder flock, hatchery, or grow-out facility. Ante, at 827. For all the majority opinion holds, antitrust exemption would apply to the NBMA if only it purged its membership of those integrators too small to own their own flock, hatchery, or grow-out facility.
In concluding that the possible extension of any antitrust exemption to large concerns was contrary to congressional intent, the concurring opinion has overlooked several explicit references in the legislative history. These passages demonstrate the point impliedly recognized by the majority opinion and this dissent: that one necessary evil of the bill, accepted by its sponsors, was that just as producers could combine and become processors as well as producers, and yet retain their exemption, large food processors
could, by becoming producers, fall within the protection of the Act for whatever they produced (and up to 50% of the product of others not even eligible for exemption. 7 U.S.C. § 291 (third proviso) (1976 ed.)). In light of these explicit passages, the thrust of the concurring opinion's search of the legislative history is largely blunted.
"The Senator from Ohio [Mr. POMERENE] at the last session of the Senate inquired very perti ently whether that provision would not, for instance, permit Mr. Swift or Mr. Armour, or Mr. Wilson, each of whom, I undertake to say, owns a farm and raises hogs, for instance, to organize under this proposed act and deal in the products of their own farms, and also to buy extensively from other producers. I think that could be accomplished under the House bill. Recognizing that there is an evil there, and that the act might easily be abused, the Senate bill provides that such organizations cannot deal in products other than those produced by their members to an amount greater than the amount of the products which they get from their members. So that if the three gentlemen to whom I refer should organize an association under this proposed law, they could throw the product of their own farms into the association and could put just so much more into the business, but no more." 62 Cong.Rec. 2157 (1922) (Sen. Walsh).
"[W]e have not given the farmers the power to organize a complete monopoly. This amendment applies to every association, whether it is a monopoly or an attempt to create a monopoly or not, for it provides that any association must admit anyone who is qualified. If Mr. Armour should be a farmer he would have to be admitted; if a sugar manufacturer should happen to raise a little sugar he would have to be admitted." Id., at 2268 (Sen. Kellogg).
| 78
|
436 U.S. 775
98 S.Ct. 2096
56 L.Ed.2d 697
FEDERAL COMMUNICATIONS COMMISSION, Petitioner,v.NATIONAL CITIZENS COMMITTEE FOR BROADCASTING et al. CHANNEL TWO TELEVISION COMPANY et al., Petitioners, v. NATIONAL CITIZENS COMMITTEE FOR BROADCASTING et al. NATIONAL ASSOCIATION OF BROADCASTERS, Petitioner, v. FEDERAL COMMUNICATIONS COMMISSION et al. AMERICAN NEWSPAPER PUBLISHERS ASSOCIATION, Petitioner, v. NATIONAL CITIZENS COMMITTEE FOR BROADCASTING et al. ILLINOIS BROADCASTING COMPANY, INC., et al., Petitioners, v. NATIONAL CITIZENS COMMITTEE FOR BROADCASTING et al. POST COMPANY et al., Petitioners, v. NATIONAL CITIZENS COMMITTEE FOR BROADCASTING et al.
Nos. 76-1471, 76-1521, 76-1595, 76-1604, 76-1624 and 76-1685.
Argued Jan. 16, 1978.
Decided June 12, 1978.
Syllabus
After a lengthy rulemaking proceeding, the Federal Communications Commission (FCC) adopted regulations prospectively barring the initial licensing or the transfer of newspaper-broadcast combinations where there is common ownership of a radio or television broadcast station and a daily newspaper located in the same community ("co-located" combinations). Divestiture of existing co-located combinations was not required except in 16 "egregious cases," where the combination involves the sole daily newspaper published in a community and either the sole broadcast station or the sole television station providing that entire community with a clear signal. Absent waiver, divestiture must be accomplished in those 16 cases by January 1, 1980. On petitions for review of the regulations, the Court of Appeals affirmed the FCC's prospective ban but ordered adoption of regulations requiring dissolution of all existing combinations that did not qualify for waivers. The court held that the limited divestiture requirement was arbitrary and capricious within the meaning of § 10(e) of the Administrative Procedure Act. Held: The challenged regulations are valid in their entirety. Pp. 793-815.
(a) The regulations which are designed to promote diversification of the mass media as a whole, are based on public-interest goals that the FCC is authorized to pursue. As long as the regulations are not an unreasonable means for seeking to achieve those goals, they fall within the FCC's general rulemaking authority recognized in United States v. Storer Broadcasting Co., 351 U.S. 192, 76 S.Ct. 763, 100 L.Ed. 1081, and National Broadcasting Co. v. United States, 319 U.S. 190, 63 S.Ct. 997, 87 L.Ed. 1344, Pp. 793-796.
(b) Although it is contended that the rulemaking record did not conclusively establish that the prospective ban would fulfill the stated purpose, "[d]iversity and its effects are . . . elusive concepts, not easily defined let alone measured without making quality judgments objectionable on both policy and First Amendment grounds," and evidence of specific abuses by common owners is difficult to compile. In light of these considerations, the FCC clearly did not take an irrational view of the public interest when it decided to impose the prospective ban, and was entitled to rely on its judgment, based on experience, that "it is unrealistic to expect true diversity from a commonly owned station-newspaper combination." In view of changed circumstances in the broadcasting industry, moreover, the FCC was warranted in departing from its earlier licensing decisions that allowed co-located combinations. Pp. 796-797.
(c) The contention that the First Amendment rights of newspaper owners are violated by the regulations ignores the fundamental proposition that there is no "unabridgeable First Amendment right to broadcast comparable to the right of every individual to speak, write, or publish." Red Lion Broadcasting Co. v. FCC, 395 U.S. 367, 388, 89 S.Ct. 1794, 1805, 23 L.Ed.2d 371. In view of the limited broadcast spectrum, allocation and regulation of frequencies are essential. Nothing in the First Amendment prevents such allocation as will promote the "public interest" in diversification of the mass communications media. A newspaper owner need not forfeit his right to publish in order to acquire a station in another community; nor is he "singled out" for more stringent treatment than other owners of mass media under already existing multiple-ownership rules. Far from seeking to limit the flow of information, the FCC has acted "to enhance the diversity of information heard by the public without on-going government surveillance of the content of speech." The regulations are a reasonable means of promoting the public interest in diversified mass communications, and thus they do not violate the First Amendment rights of those who will be denied broadcasting licenses pursuant to them. Pp. 798-802.
(d) The limited divestiture requirement reflects a rational weighing of competing policies. The FCC rationally concluded that forced dissolution of all existing co-located combinations, though fostering diversity, would disrupt the industry and cause individual hardship and would or might harm the public interest in several respects, specifically identified by the FCC. In the past, the FCC has consistently acted on the theory that preserving continuity of meritorious service furthers the public interest. And in the instant proceeding the FCC specifically noted that the existing newspaper-broadcast combinations had a "long record of service" in the public interest and concluded that their replacement by new owners would not guarantee the same level of service, would cause serious disruption during the transition period, and would probably result in a decline of local ownership. Pp. 803-809.
(e) The function of weighing policies under the public-interest standard has been delegated by Congress to the FCC in the first instance, and there is no basis for a "presumption" that existing newspaper-broadcast combinations "do not serve the public interest." Such a presumption would not comport with the FCC's longstanding and judicially approved practice of giving controlling weight in some circumstances to its goal of achieving "the best practicable service to the public." There is no statutory or other obligation that diversification should be given controlling weight in all circumstances. The FCC has made clear that diversification of ownership is a less significant factor when the renewal of an existing license as compared with an initial licensing application is being considered, and the policy of evaluating existing licensees on a somewhat different basis from new applicants appears to have been approved by Congress. Since the decision to "grandfather" most existing combinations was based on judgments and predictions by the FCC, complete factual support in the record was not required; "a forecast of the direction in which future public interest lies necessarily involves deductions based on the expert knowledge of the agency," FPC v. Transcontinental Gas Pipe Line Corp., 365 U.S. 1, 29, 81 S.Ct. 435, 450, 5 L.Ed.2d 377. Nor was it arbitrary for the FCC to order divestiture in only the 16 "egregious cases," since the FCC made a rational judgment in concluding that the need for diversification was especially great in cases of local monopoly. Pp. 809-815.
181 U.S.App.D.C. 1, 555 F.2d 938, affirmed in part and reversed in part.
Erwin N. Griswold, Washington, D.C., for all private petitioners.
Daniel M. Armstrong, III, Washington, D.C., for petitioner and respondent Federal Communications Commission.
Lawrence G. Wallace, Washington, D.C., for respondent United States.
Charles M. Firestone, Washington, D.C., for respondent National Citizens Committee for Broadcasting.
[Amicus Curiae Information from pages 778-779 intentionally omitted] Mr. Justice MARSHALL delivered the opinion of the Court.
1
At issue in these cases are Federal Communications Commission regulations governing the permissibility of common ownership of a radio or television broadcast station and a daily newspaper located in the same community. Rules Relating to Multiple Ownership of Standard, FM, and Television Broadcast Stations, Second Report and Order, 50 F.C.C.2d 1046 (1975) (hereinafter cited as Order), as amended upon reconsideration, 53 F.C.C.2d 589 (1975), codified in 47 CFR §§ 73.35, 73.240, 73.636 (1976). The regulations, adopted after a lengthy rulemaking proceeding, prospectively bar formation or transfer of co-located newspaper-broadcast combinations. Existing combinations are generally permitted to continue in operation. However, in communities in which there is common ownership of the only daily newspaper and the only broadcast station, or (where there is more than one broadcast station) of the only daily newspaper and the only television station, divestiture of either the newspaper or the broadcast station is required within five years, unless grounds for waiver are demonstrated.
2
The questions for decision are whether these regulations either exceed the Commission's authority under the Communications Act of 1934, 48 Stat. 1064, as amended, 47 U.S.C. § 151 et seq. (1970 ed. and Supp. V), or violate the First or Fifth Amendment rights of newspaper owners; and whether the lines drawn by the Commission between new and existing newspaper-broadcast combinations, and between existing combinations subject to divestiture and those allowed to continue in operation, are arbitrary or capricious within the meaning of § 10(e) of the Administrative Procedure Act, 5 U.S.C. § 706(2)(A) (1976 ed.). For the reasons set forth below, we sustain the regulations in their entirety.
3
* A.
4
Under the regulatory scheme established by the Radio Act of 1927, 44 Stat. 1162, and continued in the Communications Act of 1934, no television or radio broadcast station may operate without a license granted by the Federal Communications Commission. 47 U.S.C. § 301. Licensees who wish to continue broadcasting must apply for renewal of their licenses every three years, and the Commission may grant an initial license or a renewal only if it finds that the public interest, convenience, and necessity will be served thereby. §§ 307(a), (d), 308(a), 309(a), (d).
5
In setting its licensing policies, the Commission has long acted on the theory that diversification of mass media ownership serves the public interest by promoting diversity of program and service viewpoints, as well as by preventing undue concentration of economic power. See, e.g., Multiple Ownership of Standard, FM and Television Broadcast Stations, 45 F.C.C. 1476, 1476-1477 (1964). This perception of the public interest has been implemented over the years by a series of regulations imposing increasingly stringent restrictions on multiple ownership of broadcast stations. In the early 1940's, the Commission promulgated rules prohibiting ownership or control of more than one station in the same broadcast service (AM radio, FM radio, or television) in the same community.1 In 1953, limitations were placed on the total number of stations in each service a person or entity may own or control.2 And in 1970, the Commission adopted regulations prohibiting, on a prospective basis, common ownership of a VHF television station and any radio station serving the same market.3
6
More generally, "[d]iversification of control of the media of mass communications" has been viewed by the Commission as "a factor of primary significance" in determining who, among competing applicants in a comparative proceeding, should receive the initial license for a particular broadcast facility. Policy Statement on Comparative Broadcast Hearings, 1 F.C.C.2d 393, 394-395 (1965) (italics omitted). Thus, prior to adoption of the regulations at issue here, the fact that an applicant for an initial license published a newspaper in the community to be served by the broadcast station was taken into account on a case-by-case basis, and resulted in some instances in awards of licenses to competing applicants.4
7
Diversification of ownership has not been the sole consideration thought relevant to the public interest, however. The Commission's other, and sometimes conflicting, goal has been to ensure "the best practicable service to the public." Id., at 394. To achieve this goal, the Commission has weighed factors such as the anticipated contribution of the owner to station operations, the proposed program service, and the past broadcast record of the applicant—in addition to diversification of ownership—in making initial comparative licensing decisions. See id., at 395-400. Moreover, the Commission has given considerable weight to a policy of avoiding undue disruption of existing service.5 As a result, newspaper own ers in many instances have been able to acquire broadcast licenses for stations serving the same communities as their newspapers, and the Commission has repeatedly renewed such licenses on findings that continuation of the service offered by the common owner would serve the public interest. See Order, at 1066-1067, 1074-1075.
B
8
Against this background, the Commission began the instant rulemaking proceeding in 1970 to consider the need for a more restrictive policy toward newspaper ownership of radio and television broadcast stations. Further Notice of Proposed Rulemaking (Docket No. 18110), 22 F.C.C.2d 339 (1970).6 Citing studies showing the dominant role of television stations and daily newspapers as sources of local news and other information, id., at 346; see id., at 344-346,7 the notice of rulemaking proposed adoption of regulations that would eliminate all newspaper-broadcast combinations serving the same market, by prospectively banning formation or transfer of such combinations and requiring dissolution of all existing combinations within five years, id., at 346. The Commission suggested that the proposed regulations would serve "the purpose of promoting competition among the mass media involved, and maximizing diversification of service sources and viewpoints." Ibid. At the same time, however, the Commission expressed "substantial concern" about the disruption of service that might result from divestiture of existing combinations. Id., at 348. Comments were invited on all aspects of the proposed rules.
9
The notice of rulemaking generated a considerable response. Nearly 200 parties, including the Antitrust Division of the Justice Department, various broadcast and newspaper interests, public interest groups, and academic and research entities, filed comments on the proposed rules. In addition, a number of studies were submitted, dealing with the effects of newspaper-broadcast cross-ownership on competition and station performance, the economic consequences of divestiture, and the degree of diversity present in the mass media. In March 1974, the Commission requested further comments directed primarily to the core problem of newspaper-television station cross-ownership, Memorandum Opinion and Order (Docket No. 18110), 47 F.C.C.2d 97 (1974), and close to 50 sets of additional comments were filed. In July 1974, the Commission held three days of oral argument, at which all parties who requested time were allowed to speak.
10
The regulations at issue here were promulgated and explained in a lengthy report and order released by the Commission on January 31, 1975. The Commission concluded, first, that it had statutory authority to issue the regulations under the Communications Act, Order, at 1048, citing 47 U.S.C. §§ 152(a), 154(i), 154(j), 301, 303, 309(a), and that the regulations were valid under the First and Fifth Amendments to the Constitution, Order, at 1050-1051. It observed that "[t]he term public interest encompasses many factors including 'the widest possible dissemination of information from diverse and antagonistic sources,' " Order, at 1048, quoting Associated Press v. United States, 326 U.S. 1, 20, 65 S.Ct. 1416, 1424, 89 L.Ed. 2013 (1945), and that "ownership carries with it the power to select, to edit, and to choose the methods, manner and emphasis of presentation," Order, at 1050. The Order further explained that the prospective ban on creation of co-located newspaper-broadcast combinations was grounded primarily in First Amendment concerns, while the divestiture regulations were based on both First Amendment and antitrust policies. Id., at 1049. In addition, the Commission rejected the suggestion that it lacked the power to order divestiture, reasoning that the statutory requirement of license renewal every three years necessarily implied authority to order divestiture over a five-year period. Id., at 1052.
11
After reviewing the comments and studies submitted by the various parties during the course of the proceeding, the Commission then turned to an explanation of the regulations and the justifications for their adoption. The prospective rules, barring formation of new broadcast-newspaper combinations in the same market, as well as transfers of existing combinations to new owners, were adopted without change from the proposal set forth in the notice of rulemaking.8 While recognizing the pioneering contributions of newspaper owners to the broadcast industry, the Commission concluded that changed circumstances made it possible, and necessary, for all new licensing of broadcast stations to "be expected to add to local diversity." Id., at 1075.9 In reaching this conclusion, the Commission did not find that existing co-located newspaper-broadcast combinations had not served the public interest, or that such combinations necessarily "spea[k] with one voice" or are harmful to competition. Id., at 1085, 1089. In the Commission's view, the conflicting studies submitted by the parties concerning the effects of newspaper ownership on competition and station performance were inconclusive, and no pattern of specific abuses by existing cross-owners was demonstrated. See id., at 1072-1073, 1085, 1089. The prospective rules were justified, instead, by reference to the Commission's olicy of promoting diversification of ownership: Increases in diversification of ownership would possibly result in enhanced diversity of viewpoints, and, given the absence of persuasive countervailing considerations, "even a small gain in diversity" was "worth pursuing." Id., at 1076, 1080 n. 30.
12
With respect to the proposed across-the-board divestiture requirement, however, the Commission concluded that "a mere hoped-for gain in diversity" was not a sufficient justification. Id., at 1078. Characterizing the divestiture issues as "the most difficult" presented in the proceeding, the Order explained that the proposed rules, while correctly recognizing the central importance of diversity considerations, "may have given too little weight to the consequences which could be expected to attend a focus on the abstract goal alone." Ibid. Forced dissolution would promote diversity, but it would also cause "disruption for the industry and hardship for individual owners," "resulting in losses or diminution of service to the public." Id., at 1078, 1080.
13
The Commission concluded that in light of these countervailing considerations divestiture was warranted only in "the most egregious cases," which it identified as those in which a newspaper-broadcast combination has an "effective monopoly" in the local "marketplace of ideas as well as economically." Id., at 1080-1081. The Commission recognized that any standards for defining which combinations fell within that category would necessarily be arbitrary to some degree, but "[a] choice had to be made." Id., at 1080. It thus decided to require divestiture only where there was common ownership of the sole daily newspaper published in a community and either (1) the sole broadcast station providing that entire community with a clear signal, or (2) the sole television station encompassing the entire community with a clear signal. Id., at 1080-1084.10
14
The Order identified 8 television-newspaper and 10 radio-newspaper combinations meeting the divestiture criteria. Id., at 1085, 1098. Waivers of the divestiture requirement were granted sua sponte to 1 television and 1 radio combination, leaving a total of 16 stations subject to divestiture. The Commission explained that waiver requests would be entertained in the latter cases,11 but, absent waiver, either the newspaper or the broadcast station would have to be divested by January 1, 1980. Id., at 1084-1086.12
15
On petitions for reconsideration, the Commission reaffirmed the rules in all material respects. Memorandum Opinion and Order (Docket No. 18110), 53 F.C.C.2d 589 (1975).
C
16
Various parties—including the National Citizens Committee for Broadcasting (NCCB), the National Association of Broadcasters (NAB), the American Newspaper Publishers Association (ANPA), and several broadcast licensees subject to the divestiture requirement petitioned for review of the regulations in the United States Court of Appeals for the District of Columbia Circuit, pursuant to 47 U.S.C. § 402(a) and 28 U.S.C. §§ 2342(1), 2343 (1970 d. and Supp. V). Numerous other parties intervened, and the United States—represented by the Justice Department—was made a respondent pursuant to 28 U.S.C. §§ 2344, 2348. NAB, ANPA, and the broadcast licensees subject to divestiture argued that the regulations went too far in restricting cross-ownership of newspapers and broadcast stations; NCCB and the Justice Department contended that the regulations did not go far enough and that the Commission inadequately justified its decision not to order divestiture on a more widespread basis.
17
Agreeing substantially with NCCB and the Justice Department, the Court of Appeals affirmed the prospective ban on new licensing of co-located newspaper-broadcast combinations, but vacated the limited divestiture rules, and ordered the Commission to adopt regulations requiring dissolution of all existing combinations that did not qualify for a waiver under the procedure outlined in the Order. 181 U.S.App.D.C. 1, 555 F.2d 938 (1977); see n. 11, supra. The court held, first, that the prospective ban was a reasonable means of furthering "the highly valued goal of diversity" in the mass media, 181 U.S.App.D.C., at 17, 555 F.2d, at 954, and was therefore not without a rational basis. The court concluded further that, since the Commission "explained why it considers diversity to be a factor of exceptional importance," and since the Commission's goal of promoting diversification of mass media ownership was strongly supported by First Amendment and antitrust policies, it was not arbitrary for the prospective rules to be "based on [the diversity] factor to the exclusion of others customarily relied on by the Commission." Id., at 13 n. 33, 555 F.2d, at 950 n. 33; see id., at 11-12, 555 F.2d, at 948-949.
18
The court also held that the prospective rules did not exceed the Commission's authority under the Communications Act. The court reasoned that the public interest standard of the Act permitted, and indeed required, the Commission to consider diversification of mass media ownership in making its licensing decisions, and that the Commission's general rule-making authority under 47 U.S.C. §§ 303(r) and 154(i) allowed the Commission to adopt reasonable license qualifications implementing the public-interest standard. 181 U.S.App.D.C., at 14-15, 555 F.2d, at 951-952. The court concluded, moreover, that since the prospective ban was designed to "increas[e] the number of media voices in the community," and not to restrict or control the content of free speech, the ban would not violate the First Amendment rights of newspaper owners. Id., at 16-17, 555 F.2d, at 953-954.
19
After affirming the prospective rules, the Court of Appeals invalidated the limited divestiture requirement as arbitrary and capricious within the meaning of § 10(e) of the Administrative Procedure Act (APA), 5 U.S.C. § 706(2)(A) (1976 ed.). The court's primary holding was that the Commission lacked a rational basis for "grandfathering" most existing combinations while banning all new combinations. The court reasoned that the Commission's own diversification policy, as reinforced by First Amendment policies and the Commission's statutory obligation to "encourage the larger and more effective use of radio in the public interest," 47 U.S.C. § 303(g), required the Commission to adopt a "presumption" that stations owned by co-located newspapers "do not serve the public interest," 181 U.S.App.D.C., at 25-26, 555 F.2d, at 962-963. The court observed that, in the absence of countervailing policies, this "presumption" would have dictated adoption of an across-the-board divestiture requirement, subject only to waiver "in those cases where the evidence clearly discloses that cross-ownership is in the public interest." Id., at 29, 555 F.2d, at 966. The countervailing policies relied on by the Commission in its decision were, in the court's view, "lesser policies" which had not been given as much weight in the past as its diversification policy. Id., at 28, 555 F.2d, at 965. And "the record [did] not disclose the extent to which divestiture would actually threaten these [other policies]." Ibid. The court concluded, therefore, that it was irrational for the Commission not to give controlling weight to its diversification policy and thus to extend the divestiture requirement to all existing combinations.13
20
The Court of Appeals held further that, even assuming a difference in treatment between new and existing combinations was justifiable, the Commission lacked a rational basis for requiring divestiture in the 16 "egregious" cases while allowing the remainder of the existing combinations to continue in operation. The court suggested that "limiting divestiture to small markets of 'absolute monopoly' squanders the opportunity where divestiture might do the most good," since "[d]ivestiture . . . may be more useful in the larger markets." Id., at 29, 555 F.2d, at 966. The court further observed that the record "[did] not support the conclusion that divestiture would be more harmful in the grandfathered markets than in the 16 affected markets," nor did it demonstrate that the need for divestiture was stronger in those 16 markets. Ibid. On the latter point, the court noted that, "[a]lthough the affected markets contain fewer voices, the amount of diversity in communities with additional independent voices may in fact be no greater." Ibid.
21
The Commission, NAB, ANPA, and several cross-owners who had been intervenors below, and whose licenses had been grandfathered under the Commission's rules but were subject to divestiture under the Court of Appeals' decision, petitioned this court for review.14 We granted certiorari, 434 U.S. 815, 98 S.Ct. 52, 54 L.Ed.2d 71 (1977), and we now affirm the judgment of the Court of Appeals insofar as it upholds the prospective ban and reverse the judgment insofar as it vacates the limited divestiture requirement.15
II
22
Petitioners NAB and ANPA contend that the regulations promulgated by the Commission exceed its statutory rule-making authority and violate the constitutional rights of newspaper owners. We turn first to the statutory, and then to the constitutional, issues.
A.
23
(1)
24
Section 303(r) of the Communications Act, 47 U.S.C. § 303(r), provides that "the Commission from time to time, as public convenience, interest, or necessity requires, shall . . . [m]ake such rules and regulations and prescribe such restrictions and conditions, not inconsistent with law, as may be necessary to carry out the provisions of [the Act]." See also 47 U.S.C. § 154(i). As the Court of Appeals recognized, 181 U.S.App.D.C., at 14, 555 F.2d, at 951, it is now well established that this general rule-making authority supplies a statutory basis for the Commission to issue regulations codifying its view of the public-interest licensing standard, so long as that view is based on consideration of permissible factors and is otherwise reasonable. If a license applicant does not qualify under standards set forth in such regulations, and does not proffer sufficient grounds for waiver or change of those standards, the Commission may deny the application without further inquiry. See United States v. Storer Broadcasting Co., 351 U.S. 192, 76 S.Ct. 763, 100 L.Ed. 1081 (1956); National Broadcasting Co. v. United States, 319 U.S. 190, 63 S.Ct. 997, 87 L.Ed. 1344 (1943).
25
This Court has specifically upheld this rule-making authority in the context of regulations based on the Commission's policy of promoting diversification of ownership. In United States v. Storer Broadcasting Co., supra, we sustained the portion of the Commission's multiple-ownership rules placing limitations on the total number of stations in each broadcast service a person may own or control. See n. 2, supra. And in National Broadcasting Co. v. United States, supra, we affirmed regulations that, inter alia, prohibited broadcast networks from owning more than one AM radio station in the same community, and from owning " 'any standard broadcast station in any locality where the existing standard broadcast stations are so few or of such unequal desirability . . . that competition would be substantially restrained by such licensing.' " See 319 U.S., at 206-208, 63 S.Ct., at 1005; n. 1, supra.
26
Petitioner NAB attempts to distinguish these cases on the ground that they involved efforts to increase diversification within the boundaries of the broadcasting industry itself, whereas the instant regulations are concerned with diversification of ownership in the mass communications media as a whole. NAB contends that, since the Act confers jurisdiction on the Commission only to regulate "communication by wire or radio," 47 U.S.C. § 152(a), it is impermissible for the Commission to use its licensing authority with respect to broadcasting to promote diversity in an overall communications market which includes, but is not limited to, the broadcasting industry.
27
This argument undersells the Commission's power to regulate broadcasting in the "public interest." In making initial licensing decisions between competing applicants, the Commission has long given "primary significance" to "diversification of control of the media of mass communications," and has denied licenses to newspaper owners on the basis of this policy in appr priate cases. See supra, at 781, and n. 4. As we have discussed on several occasions, see, e. g., National Broadcasting Co. v. United States, supra, at 210-218, 63 S.Ct., at 1006-1010; Red Lion Broadcasting Co. v. FCC, 395 U.S. 367, 375-377, 387-388, 89 S.Ct. 1794, 1798-1799, 1805, 23 L.Ed.2d 371 (1969), the physical scarcity of broadcast frequencies, as well as problems of interference between broadcast signals, led Congress to delegate broad authority to the Commission to allocate broadcast licenses in the "public interest." And "[t]he avowed aim of the Communications Act of 1934 was to secure the maximum benefits of radio to all the people of the United States." National Broadcasting Co. v. United States, supra, 319 U.S., at 217, 63 S.Ct., at 1010. It was not inconsistent with the statutory scheme, therefore, for the Commission to conclude that the maximum benefit to the "public interest" would follow from allocation of broadcast licenses so as to promote diversification of the mass media as a whole.
28
Our past decisions have recognized, moreover, that the First Amendment and antitrust values underlying the Commission's diversification policy may properly be considered by the Commission in determining where the public interest lies. "[T]he 'public interest' standard necessarily invites reference to First Amendment principles," Columbia Broadcasting System, Inc. v. Democratic National Committee, 412 U.S. 94, 122, 93 S.Ct. 2080, 2096, 36 L.Ed.2d 772 (1973), and, in particular, to the First Amendment goal of achieving "the widest possible dissemination of information from diverse and antagonistic sources," Associated Press v. United States, 326 U.S., at 20, 65 S.Ct., at 1424. See Red Lion Broadcasting Co. v. FCC, supra, 395 U.S., at 385, 390, 89 S.Ct., at 1804, 1806. See also United States v. Midwest Video Corp., 406 U.S. 649, 667-669, and n. 27, 92 S.Ct. 1860, 1870-1871, 32 L.Ed.2d 390 (1972) (plurality opinion). And, while the Commission does not have power to enforce the antitrust laws as such, it is permitted to take antitrust policies into account in making licensing decisions pursuant to the public-interest standard. See, e. g., United States v. Radio Corp. of America, 358 U.S. 334, 351, 79 S.Ct. 457, 467, 3 L.Ed.2d 354 (1959); National Broadcasting Co. v. United States, supra, 319 U.S., at 222-224, 63 S.Ct., at 1011-1013. Indeed we have noted, albeit in dictum:
29
"[I]n a given case the Commission might find that antitrust considerations alone would keep the statutory standard from being met, as when the publisher of the sole newspaper in an area applies for a license for the only available radio and television facilities, which, if granted, would give him a monopoly of that area's major media of mass communication." United States v. Radio Corp. of America, supra, 358 U.S., at 351-352, 79 S.Ct., at 467.
30
(2)
31
It is thus clear that the regulations at issue are based on permissible public-interest goals and, so long as the regulations are not an unreasonable means for seeking to achieve these goals, they fall within the general rulemaking authority recognized in the Storer Broadcasting and National Broadcasting cases. Petitioner ANPA contends that the prospective rules are unreasonable in two respects:16 first, the rulemaking record did not conclusively establish that prohibiting common ownership of co-located newspapers and broadcast stations would in fact lead to increases in the diversity of viewpoints among local communications media; and second, the regulations were based on the diversification factor to the exclusion of other service factors considered in the past by the Commission in making initial licensing decisions regarding newspaper owners, see supra, at 782. With respect to the first point, we agree with the Court of Appeals that, notwithstanding the inconclusiveness of the rulemaking record, the Commission acted rationally in finding that diversification f ownership would enhance the possibility of achieving greater diversity of viewpoints. As the Court of Appeals observed, "[d]iversity and its effects are . . . elusive concepts, not easily defined let alone measured without making qualitative judgments objectionable on both policy and First Amendment grounds." 181 U.S.App.D.C., at 24, 555 F.2d, at 961. Moreover, evidence of specific abuses by common owners is difficult to compile; "the possible benefits of competition do not lend themselves to detailed forecast." FCC v. RCA Communications, Inc., 346 U.S. 86, 96, 73 S.Ct. 998, 1005, 97 L.Ed. 1470 (1953). In these circumstances, the Commission was entitled to rely on its judgment, based on experience, that "it is unrealistic to expect true diversity from a commonly owned station-newspaper combination. The divergency of their viewpoints cannot be expected to be the same as if they were antagonistically run." Order, at 1079-1080; see 181 U.S.App.D.C., at 25, 555 F.2d, at 962.
32
As to the Commission's decision to give controlling weight to its diversification goal in shaping the prospective rules, the Order makes clear that this change in policy was a reasonable administrative response to changed circumstances in the broadcasting industry. Order, at 1074-1075; see FCC v. Pottsville Broadcasting Co., 309 U.S. 134, 137-138, 60 S.Ct. 437, 438-439, 84 L.Ed. 656 (1940). The Order explained that, although newspaper owners had previously been allowed, and even encouraged, to acquire licenses for co-located broadcast stations because of the shortage of qualified license applicants, a sufficient number of qualified and experienced applicants other than newspaper owners was now available. In addition, the number of channels open for new licensing had diminished substantially. It had thus become both feasible and more urgent for the Commission to take steps to increase diversification of ownership, and a change in the Commission's policy toward new licensing offered the possibility of increasing diversity without causing any disruption of existing service. In light of these considerations, the Commission clearly did not take an irrational view of the public interest when it decided to impose a prospective ban on new licensing of co-located newspaper-broadcast combinations.17
B
33
Petitioners NAB and ANPA also argue that the regulations, though designed to further the First Amendment goal of achieving "the widest possible dissemination of information from diverse and antagonistic sources," Associated Press v. United States, supra, 326 U.S., at 20, 65 S.Ct., at 1424, nevertheless violated the First Amendment rights of newspaper owners. We cannot agree, for this argument ignores the fundamental proposition that there is no "unabridgeable First Amendment right to broadcast comparable to the right of every individual to speak, write, or publish." Red Lion Broadcasting Co. v. FCC, 395 U.S., at 388, 89 S.Ct., at 1806.
34
The physical limitations of the broadcast spectrum are well known. Because of problems of interference between broadcast signals, a finite number of frequencies can be used productively; this number is far exceeded by the number of persons wishing to broadcast to the public. In light of this physical scarcity, Government allocation and regulation of broadcast frequencies are essential, as we have often recognized. Id., at 375-377, 387-388, 89 S.Ct., at 1798-1799, 1805; National Broadcasting Co. v. United States, 319 U.S., at 210-218, 63 S.Ct., at 1006-1010; Federal Radio Comm'n v. Nelson Bros. Bond & Mortgage Co., 289 U.S. 266, 282, 53 S.Ct. 627, 635, 77 L.Ed. 1166 (1933); see supra, at 795. No one here questions the need for such allocation and regulation, and given that need, we see nothing in the First Amendment to prevent the Commission from allocating licenses so as to promote the "public interest" in diversification of the mass communications media.
35
NAB and ANPA contend, however, that it is inconsistent with the First Amendment to promote diversification by barring a newspaper owner from owning certain broadcasting stations. In support, they point to our statement in Buckley v. Valeo, 424 U.S. 1, 96 S.Ct. 612, 46 L.Ed.2d 659 (1976), to the effect that "government may [not] restrict the speech of some elements of our society in order to enhance the relative voice of others," id., at 48-49, 96 S.Ct., at 649. As Buckley also recognized, however, " 'the broadcast media pose unique and special problems not present in the traditional free speech case.' " Id., at 50 n. 55, 96 S.Ct., at 649, quoting Columbia Broadcasting System v. Democratic National Committee, 412 U.S., at 101, 93 S.Ct., at 2085. Thus efforts to " 'enhanc[e] the volume and quality of coverage' of public issues" through regulation of broadcasting may be permissible where similar efforts to regulate the print media would not be. 424 U.S., at 50-51, and n. 55, 96 S.Ct., at 649, quoting Red Lion Broadcasting Co. v. FCC, supra, 395 U.S., at 393, 89 S.Ct., at 1808; cf. Miami Herald Publishing Co. v. Tornillo, 418 U.S. 241, 94 S.Ct. 2831, 4 L.Ed.2d 730 (1974). Requiring those who wish to obtain a broadcast license to demonstrate that such would serve the "public interest" does not restrict the speech of those who are denied licenses; rather, it preserves the interests of the "people as a whole . . . in free speech." Red Lion Broadcasting Co., supra, 395 U.S., at 390, 89 S.Ct., at 1806. As we stated in Red Lion, "to deny a station license because 'the public interest' requires it 'is not a denial of free speech.' " 395 U.S., at 389, 89 S.Ct., at 1806, quoting National Broadcasting Co. v. United States, supra, 319 U.S., at 227, 63 S.Ct., at 1014. See also Federal Radio Comm'n v. Nelson Bros. Bond & Mortgage Co., supra.
36
Relying on cases such as Speiser v. Randall, 357 U.S. 513, 78 S.Ct. 1322, 2 L.Ed.2d 1460 (1958), and Elrod v. Burns, 427 U.S. 347, 96 S.Ct. 2673, 49 L.Ed.2d 547 (1976), NAB and ANPA also argue that the regulations unconstitutionally condition receipt of a broadcast license upon forfeiture of the right to publish a newspaper. Under the regulations, however, a newspaper owner need not forfeit anything in order to acquire a license for a station located in another community.18 More importantly, in the cases relied on by those petitioners, unlike the instant case, denial of a benefit had the effect of abridging freedom of expression, since the denial was based solely on the content of constitutionally protected speech; in Speiser veterans were deprived of a special property-tax exemption if they declined to subscribe to a loyalty oath, while in Elrod certain public employees were discharged or threatened with discharge because of their political affiliation. As we wrote in National Broadcasting, supra, "the issue before us would be wholly different" if "the Commission [were] to choose among applicants upon the basis of their political, economic or social views." 319 U.S., at 226, 63 S.Ct., at 1014. Here the regulations are not content related; moreover, their purpose and effect is to promote free speech, not to restrict it.
37
Finally, NAB and ANPA argue that the Commission has unfairly "singled out" newspaper owners for more stringent treatment than other license applicants.19 But the regulations treat newspaper owners in essentially the same fashion as other owners of the major media of mass communications were already treated under the Commission's multiple-ownership rules, see supra, 780-781, and nn. 1-3; owners of radio stations, television stations, and newspapers alike are now restricted in their ability to acquire licenses for co-located broadcast stations. Grosjean v. American Press Co., 297 U.S. 233, 56 S.Ct. 444, 80 L.Ed.2d 660 (1936), in which this Court struck down a state tax imposed only on newspapers, is thus distinguishable in the degree to which newspapers were singled out for special treatment. In addition, the effect of the tax in Grosjean was "to limit the circulation of information to which the public is entitled," id., at 250, 56 S.Ct., at 449, an eff ct inconsistent with the protection conferred on the press by the First Amendment.
38
In the instant case, far from seeking to limit the flow of information, the Commission has acted, in the Court of Appeals' words, "to enhance the diversity of information heard by the public without on-going government surveillance of the content of speech." 181 U.S.App.D.C., at 17, 555 F.2d, at 954. The regulations are a reasonable means of promoting the public interest in diversified mass communications; thus they do not violate the First Amendment rights of those who will be denied broadcast licenses pursuant to them.20 Being forced to "choose among applicants for the same facilities," the Commission has chosen on a "sensible basis," one designed to further, rather than contravene, "the system of freedom of expression." T. Emerson, The System of Freedom of Expression 663 (1970).
III
39
After upholding the prospective aspect of the Commission's regulations, the Court of Appeals concluded that the Commission's decision to limit divestiture to 16 "egregious cases" of "effective monopoly" was arbitrary and capricious within the meaning of § 10(e) of the APA, 5 U.S.C. § 706(2)(A) (1976 ed.).21 We agree with the Court of Appeals that regu lations promulgated after informal rulemaking, while not subject to review under the "substantial evidence" test of the APA, 5 U.S.C. § 706(2)(E) (1976 ed.), quoted in n. 21, supra, may be invalidated by a reviewing court under the "arbitrary or capricious" standard if they are not rational and based on consideration of the relevant factors. 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). Although this review "is to be searching and careful," "[t]he court is not empowered to substitute its judgment for that of the agency." Id., at 416, 91 S.Ct., at 824.
40
In the view of the Court of Appeals, the Commission lacked a rational basis, first, for treating existing newspaper-broadcast combinations more leniently than combinations that might seek licenses in the future; and, second, even assuming a distinction between existing and new combinations had been justified, for requiring divestiture in the "egregious cases" while allowing all other existing combinations to continue in operation. We believe that the limited divestiture requirement reflects a rational weighing of competing policies, and we therefore reinstate the portion of the Commission's order that was invalidated by the Court of Appeals.
A.
41
(1)
42
The Commission was well aware that separating existing newspaper-broadcast combinations would promote diversification of ownership. It concluded, however, that ordering widespread divestiture would not result in "the best practicable service to the American public," Order, at 1074, a goal that the Commission has always taken into account and that has been specifically approved by this Court, FCC v. Sanders Bros. Radio Station, 309 U.S. 470, 475, 60 S.Ct. 693, 697, 84 L.Ed. 869 (1940); see supra, at 782. In particular, the Commission expressed concern that divestiture would cause "disruption for the industry" and "hardship for individual owners," both of which would result in harm to the public interest. Order, at 1078. Especially in light of the fact that the number of co-located newspaper-broadcast combinations was already on the decline as a result of natural market forces, and would decline further as a result of the prospective rules, the Commission decided that across-the-board divestiture was not warranted. Seeid., at 1080 n. 29.
43
The Order identifies several specific respects in which the public interest would or might be harmed if a sweeping divestiture requirement were imposed: the stability and continuity of meritorious service provided by the newspaper owners as a group would be lost; owners who had provided meritorious service would unfairly be denied the opportunity to continue in operation; "economic dislocations" might prevent new owners from obtaining sufficient working capital to maintain the quality of local programming;22 and local ownership of broadcast stations would probably decrease.23 Id., at 1078. We cannot say that the Commission acted irrationally in concluding that these public-interest harms outweighed the potential gains that would follow from increasing diversification of ownership.
44
In the past, the Commission has consistently acted on the theory that preserving continuity of meritorious service furthers the public interest, both in its direct consequence of bringing proved broadcast service to the public, and in its indirect consequence of rewarding—and avoiding losses t —licensees who have invested the money and effort necessary to produce quality performance.24 Thus, although a broadcast license must be renewed every three years, and the licensee must satisfy the Commission that renewal will serve the public interest, both the Commission and the courts have recognized that a licensee who has given meritorious service has a "legitimate renewal expectanc[y]" that is "implicit in the structure of the Act" and should not be destroyed absent good cause. Greater Boston Television Corp. v. FCC, 143 U.S.App.D.C. 383, 396, 444 F.2d 841, 854 (1970), cert. denied, 403 U.S. 923, 91 S.Ct. 2229, 29 L.Ed.2d 701 (1971); see Citizens Communications Center v. FCC, 145 U.S.App.D.C. 32, 44, and n. 35, 447 F.2d 1201, 1213, and n. 35 (1971); In re Formulation of Policies Relating to the Broadcast Renewal Applicant, Stemming From the Comparative Hearing Process, 66 F.C.C.2d 419, 420 (1977); n. 5, supra.25 Accordingly, while diversification of ownership is a relevant factor in the context of license renewal as well as initial licensing, the Commission has long considered the past performance of the incumbent as the most important factor in deciding whether to grant license renewal and thereby to allow the existing owner to continue in operation. Even where an incumbent is challenged by a competing applicant who offers greater potential in terms of diversification, the Commission's general practice has been to go with the "proved product" and grant renewal if the incumbent has rendered meritorious service. See generally In re Formulation of Policies Relating to the Broadcast Renewal Applicant, Stemming from the Comparative Hearing Process, supra ; n. 5, supra.
45
In the instant proceeding, the Commission specifically noted that the existing newspaper-broadcast cross-owners as a group had a "long record of service" in the public interest; many were pioneers in the broadcasting industry and had established and continued "[t]raditions of service" from the outset. Order, at 1078.26 Notwithstanding the Commission's diversification policy, all were granted initial licenses upon findings that the public interest would be served thereby, and those that had been in existence for more than three years had also had their licenses renewed on the ground that the public interest would be furthered. The Commission noted, moreover, that its own study of existing co-located newspaper-television combinations showed that in terms of percentage of time devoted to several categories of local programming, these stations had displayed "an undramatic but nonetheless statistically significant superiority" over other television stations. Id., at 1078 n. 26.27 An across-the-board divestiture requirement would result in loss of the services of these superior licensees, and—whether divestiture caused actual losses to existing owners, or just denial of reasonably anticipated gains—the result would be that futu e licensees would be discouraged from investing the resources necessary to produce quality service.
46
At the same time, there was no guarantee that the licensees who replaced the existing cross-owners would be able to provide the same level of service or demonstrate the same long-term commitment to broadcasting. And even if the new owners were able in the long run to provide similar or better service, the Commission found that divestiture would cause serious disruption in the transition period. Thus, the Commission observed that new owners "would lack the long knowledge of the community and would have to begin raw," and—because of high interest rates—might not be able to obtain sufficient working capital to maintain the quality of local programming. Id., at 1078; see n. 22, supra.28 The Commission's fear that local ownership would decline was grounded in a rational prediction, based on its knowledge of the broadcasting industry and supported by comments in the record, see Order, at 1068-1069, that many of the existing newspaper-broadcast combinations owned by local interests would respond to the divestiture requirement by trading stations with out-of-town owners. It is undisputed that roughly 75% of the existing co-located newspaper-television combinations are locally owned, see, 181 U.S.App.D.C., at 26-27, 555 F.2d, at 963-964, and these owners' knowledge of their local communities and concern for local affairs, built over a period of years, would be lost if they were replaced with outside interests. Local ownership in and of itself has been recognized to be a factor of some—if relatively slight significance even in the context of initial licensing decisions. See Policy Statement on Comparative Broadcast Hearings, 1 F.C.C.2d, at 396. It was not unreasonable, therefore, for the Commission to consider it as one of several factors militating against divestiture of combinations that have been in existence for many years.29
47
In light of these countervailing considerations, we cannot agree with the Court of Appeals that it was arbitrary and capricious for the Commission to "grandfather" most existing combinations, and to leave opponents of these combinations to their remedies in individual renewal proceedings. In the latter connection we note that, while individual renewal proceedings are unlikely to accomplish any "overall restructuring" of the existing ownership patterns, the Order does make clear that existing combinations will be subject to challenge by competing applicants in renewal proceedings, to the same extent as they were prior to the instant rulemaking proceedings. Order, at 1087-1088 (emphasis omitted); see n. 12, supra. That is, diversification of ownership will be a relevant but somewhat secondary factor. And, even in the absence of a competing applicant, license renewal may be denied if, inter alia, a challenger can show that a common owner has engaged in specific economic or programming abuses. See nn. 12 and 13, supra.
48
(2)
49
In concluding that the Commission acted unreasonably in not extending its divestiture requirement across the board, the Court of Appeals apparently placed heavy reliance on a "presumption" that existing newspaper-broadcast combinations "do not serve the public interest." See supra 790-791. The court derived this presumption primarily from the Commission's own diversification policy, as "reaffirmed" by adoption of the prospective rules in this proceeding, and secondarily from "[t]he policies of the First Amendment," 181 U.S.App.D.C., at 26, 555 F.2d, at 963, and the Commission's statutory duty to "encourage the larger and more effective use of radio in the public interest," 47 U.S.C. § 303(g). As explained in Part II above, we agree that diversification of ownership furthers statutory and constitutional policies, and, as the Commission recognized, separating existing newspaper-broadcast combinations would promote diversification. But the weighing of policies under the "public interest" standard is a task that Congress has delegated to the Commission in the first instance, and we are unable to find anything in the Communications Act, the First Amendment, or the Commission's past or present practices that would require the Commission to "presume" that its diversification policy should be given controlling weight in all circumstances.30
50
Such a "presumption" would seem to be inconsistent with the Commission's longstanding and judicially approved practice of giving controlling weight in some circumstances to its more general goal of achieving "the best practicable service to the public." Certainly, as discussed in Part III-A (1) above, the Commission through its license renewal policy has made clear that it considers diversification of ownership to be a factor of less significance when deciding whether to allow an existing licensee to continue in operation than when evaluating applicants seeking initial licensing. Nothing in the language or the legislativ history of § 303(g) indicates that Congress intended to foreclose all differences in treatment between new and existing licensees, and indeed, in amending § 307(d) of the Act in 1952, Congress appears to have lent its approval to the Commission's policy of evaluating existing licensees on a somewhat different basis from new applicants.31 Moreover, if enactment of the prospective rules in this proceeding itself were deemed to create a "presumption" in favor of divestiture, the Commission's ability to experiment with new policies would be severely hampered. One of the most significant advantages of the administrative process is its ability to adapt to new circumstances in a flexible manner, see FCC v. Pottsville Broadcasting Co., 309 U.S., at 137-138, 60 S.Ct., at 438-439, and we are unwilling to presume that the Commission acts unreasonably when it decides to try out a change in licensing policy primarily on a prospective basis.
51
The Court of Appeals also relied on its perception that the policies militating against divestiture were "lesser policies" to which the Commission had not given as much weight in the past as its diversification policy. See supra, at 791. This perception is subject to much the same criticism as the "presumption" that existing co-located newspaper-broadcasting combinations do not serve the public interest. The Commission's past concern with avoiding disruption of existing service is amply illustrated by its license renewal policies. In addition, it is worth noting that in the past when the Commission has changed its multiple-ownership rules it has almost invariably tailored the changes so as to operate wholly or primarily on a prospective basis. For example, the regulations adopted in 1970 prohibiting common ownership of a VHF television station and a radio station serving the same market were made to apply only to new licensing decisions; no divestiture of existing combinations was required. See n. 3, supra. The limits set in 1953 on the total numbers of stations a person could own, upheld by this Court inUnited States v. Storer Broadcasting Co., 351 U.S. 192, 76 S.Ct. 763, 100 L.Ed. 1081 (1956), were intentionally set at levels that would not require extensive divestiture of existing combinations. See Multiple Ownership of AM, FM and Television Broadcast Stations, 18 F.C.C., at 292. And, while the rules adopted in the early 1940's prohibiting ownership or control of more than one station in the same broadcast service in the same community required divestiture of approximately 20 AM radio combinations, FCC Eleventh Annual Report 12 (1946), the Commission afforded an opportunity for case-by-case review, see Multiple Ownership of Standard Broadcast Stations, 8 Fed.Reg. 16065 (1943). Moreover, television and FM radio had not yet developed, so that application of the rules to these media was wholl prospective. See Rules and Regulations Governing Commercial Television Broadcast Stations, supra, n. 1; Rules Governing Standard and High Frequency Broadcast Stations, supra, n. 1.
52
The Court of Appeals apparently reasoned that the Commission's concerns with respect to disruption of existing service, economic dislocations, and decreases in local ownership necessarily could not be very weighty since the Commission has a practice of routinely approving voluntary transfers and assignments of licenses. See 181 U.S.App.D.C., at 26-28, 555 F.2d, at 963-965. But the question of whether the Commission should compel proved licensees to divest their stations is a different question from whether the public interest is served by allowing transfers by licensees who no longer wish to continue in the business. As the Commission's brief explains:
53
"[I]f the Commission were to force broadcasters to stay in business against their will, the service provided under such circumstances, albeit continuous, might well not be worth preserving. Thus, the fact that the Commission approves assignments and transfers in no way undermines its decision to place a premium on the continuation of proven past service by those licensees who wish to remain in business." Brief for Petitioner in No. 76-1471, p. 38 (footnote omitted).32
54
The Court of Appeals' final basis for concluding that the Commission acted arbitrarily in not giving controlling weight to its divestiture policy was the Court's finding that the rulemaking record did not adequately "disclose the extent to which divestiture would actually threaten" the competing policies relied upon by the Commission. 181 U.S.App.D.C., at 28, 555 F.2d, at 965. However, to the extent that factual determinations were involved in the Commission's decision to "grandfather" most existing combinations, they were primarily of a judgmental or predictive nature—e. g., whether a divestiture requirement would result in trading of stations with out-of-town owners; whether new owners would perform as well as existing cross-owners, either in the short run or in the long run; whether losses to existing owners would result from forced sales; whether such losses would discourage future investment in quality programming; and whether new owners would have sufficient working capital to finance local programming." In such circumstances complete factual support in the record for the Commission's judgment or prediction is not possible or required; "a forecast of the direction in which future public interest lies necessarily involves deductions based on the expert knowledge of the agency," FPC v. Transcontinental Gas Pipe Line Corp., 365 U.S. 1, 29, 81 S.Ct. 435, 450, 5 L.Ed.2d 377 (1961); see Industrial Union Dept., AFL-CIO v. Hodgson, 162 U.S.App.D.C. 331, 338-339, 499 F.2d 467, 474-475 (1974).
B
55
We also must conclude that the Court of Appeals erred in holding that it was arbitrary to order divestiture in the 16 "egregious cases" while allowing other existing combinations to continue in operation. The Commission's decision was based not—as the Court of Appeals may have believed, see supra, at 792—on a conclusion that divestiture would be more harmful in the "grandfathered" markets than in the 16 affected markets, but rather on a judgment that the need for diversification was especially great in cases of local monopoly. This policy judgment was certainly not irrational, see United States v. Rad o Corp. of America, 358 U.S., at 351-352, 79 S.Ct., at 467-468, and indeed was founded on the very same assumption that underpinned the diversification policy itself and the prospective rules upheld by the Court of Appeals and now by this Court—that the greater the number of owners in a market, the greater the possibility of achieving diversity of program and service viewpoints.
56
As to the Commission's criteria for determining which existing newspaper-broadcast combinations have an "effective monopoly" in the "local marketplace of ideas as well as economically," we think the standards settled upon by the Commission reflect a rational legislative-type judgment. Some line had to be drawn, and it was hardly unreasonable for the Commission to confine divestiture to communities in which there is common ownership of the only daily newspaper and either the only television station or the only broadcast station of any kind encompassing the entire community with a clear signal. Cf. United States v. Radio Corp. of America, supra, at 351-352, 79 S.Ct., at 467-468, quoted, supra, at 796. It was not irrational, moreover, for the Commission to disregard media sources other than newspapers and broadcast stations in setting its divestiture standards. The studies cited by the Commission in its notice of rulemaking unanimously concluded that newspapers and television are the two most widely utilized media sources for local news and discussion of public affairs; and, as the Commission noted in its Order, at 1081, "aside from the fact that [magazines and other periodicals] often had only a tiny fraction in the market, they were not given real weight since they often dealt exclusively with regional or national issues and ignored local issues." Moreover, the differences in treatment between radio and television stations, see n. 10, supra, were certainly justified in light of the far greater influence of television than radio as a source for local news. See Order, at 1083.
57
The judgment of the Court of Appeals is affirmed in part and reversed in part.
58
It is so ordered.
59
Mr. Justice BRENNAN took no part in the consideration or decision of these cases.
1
See Multiple Ownership of Standard Broadcast Stations (AM radio), 8 Fed.Reg. 16065 (1943); Rules and Regulations Governing Commercial Television Broadcast Stations, § 4.226, 6 Fed.Reg. 2284, 2284-2285 (1941); Rules Governing Standard and High Frequency Broadcast Stations (FM radio), § 3.228(a), 5 Fed.Reg. 2382, 2384 (1940). In 1941 the Commission issued "chain broadcasting" regulations that, among other things, prohibited any organization from operating more than one broadcast network and barred any network from owning more than one standard broadcast station in the same community. See National Broadcasting Co. v. United States, 319 U.S. 190, 193, 206-208, 63 S.Ct. 997, 1004-1005, 87 L.Ed. 1344 (1943). In 1964 the Commission tightened its multiple-ownership regulations so as to prohibit common ownership of any stations in the same broadcast service that have overlaps in certain service contours. See Multiple Ownership of Standard, FM and Television Broadcast Stations, 45 F.C.C. 1476 (1964).
2
See Multiple Ownership of AM, FM and Television Broadcast Stations, 18 F.C.C. 288 (1953). The regulations limited each person to a total of seven AM radio stations, seven FM radio stations, and five VHF television stations. In United States v. Storer Broadcasting Co., 351 U.S. 192, 76 S.Ct. 763, 100 L.Ed. 1081 (1956), the regulations were upheld by this Court.
3
Multiple Ownership of Standard, FM and Television Broadcast Stations, 22 F.C.C.2d 306 (1970), as modified, 28 F.C.C.2d 662 (1971). No divestiture of existing television-radio combinations was required. The regulations also provided that license applications involving common ownership of a UHF television station and a radio station serving the same market would be considered on a case-by-case basis and that common ownership of AM and FM radio stations serving the same market would be permitted.
4
See, e.g., McClatchy Broadcasting Co. v. FCC, 99 U.S.App.D.C. 195, 239 F.2d 15 (1956), cert. denied, 353 U.S. 918, 77 S.Ct. 664, 1 L.Ed.2d 665 (1957); Scripps-Howard Radio, Inc. v. FCC, 89 U.S.App.D.C. 13, 189 F.2d 677, cert. denied, 342 U.S. 830, 72 S.Ct. 55, 96 L.Ed. 628 (1951).
In the early 1940's, the Commission considered adopting rules barring common ownership of newspapers and radio stations, see Order Nos. 79 and 79-A, 6 Fed.Reg. 1580, 3302 (1941), but, after an extensive rulemaking proceeding, decided to deal with the problem on an ad hoc basis, Newspaper Ownership of Radio Stations, Notice of Dismissal of Proceedings, 9 Fed.Reg. 702 (1944).
5
The Commission's policy with respect to icense renewals has undergone some evolution, but the general practice has been to place considerable weight on the incumbent's past performance and to grant renewal—even where the incumbent is challenged by a competing applicant—if the incumbent has rendered meritorious service. In 1970 the Commission adopted a policy statement purporting to codify its previous practice as to comparative license renewal hearings. Policy Statement Concerning Comparative Hearings Involving Regular Renewal Applicants, 22 F.C.C.2d 424. Citing considerations of predictability and stability, the statement adopted the policy that, where an incumbent's program service "has been substantially attuned to meeting the needs and interests of its area," the incumbent would be granted an automatic preference over any new applicant without consideration of other factors—including diversification of ownership—that are taken into account in initial licensing decisions. Id., at 425. This policy statement was overturned on appeal, Citizens Communications Center v. FCC, 145 U.S.App.D.C. 32, 447 F.2d 1201 (1971), on the ground that the Commission was required to hold full hearings at which all relevant public-interest factors would be considered. The court agreed with the Commission, however, that "incumbent licensees should be judged primarily on their records of past performance." Id., at 44, 447 F.2d, at 1213. The court stated further that "superior performance [by an incumbent] should be a plus of major significance in renewal proceedings." Ibid. (emphasis in original). After the instant regulations were promulgated, the Commission adopted a new policy statement in response to the Citizens Communications decision, returning to a case-by-case approach in which all factors would be considered, but in which the central factor would still be the past performance of the incumbent. In re Formulation of Policies Relating to the Broadcast Renewal Applicant, Stemming from the Comparative Hearing Process, 66 F.C.C.2d 419 (1977), pet. for review pending sub nom. National Black Media Coalition v. FCC, No. 77-1500(CADC).
6
This proceeding was a continuation of the earlier proceeding that had resulted in adoption of regulations barring new licensing of radio-VHF television combinations in the same market, while permitting AM-FM combinations and consigning radio-UHF television combinations to case-by-case treatment. See supra, at 781, and n.3. In addition to the proposal with respect to common ownership of newspapers and broadcast stations, the Further Notice of Proposed Rulemaking suggested the possibility of prohibiting AM-FM combinations and requiring divestiture of existing television-radio combinations serving the same market, but these latter proposals wer not adopted and they are not at issue here. See Order, at 1052-1055.
7
The studies generally showed that radio was the third most important source of news, ranking ahead of magazines and other periodicals. See 22 F.C.C.2d, at 345.
8
The rules prohibit a newspaper owner from acquiring a license for a co-located broadcast station, either by transfer or by original licensing; if a broadcast licensee acquires a daily newspaper in the same market, it must dispose of its license within a year or by the time of its next renewal date, whichever comes later. See Order, at 1074-1076, 1099-1107. Noncommercial education television stations and college newspapers are not included within the scope of the rules. 47 CFR § 73.636, and n. 10 (1976). For purposes of the rules, ownership is defined to include operation or control, § 73.636 n. 1; a "daily newspaper" is defined as "one which is published four or more days per week, which is in the English language and which is circulated generally in the community of publication," § 73.636 n. 10; and a broadcast station is considered to serve the same community as a newspaper if a specified service contour of the station—"Grade A" for television, 2 mV/m for AM, and 1mV/m for FM—encompasses the city in which the newspaper is published, Order, at 1075.
9
The Commission did provide, however, for waiver of the prospective ban in exceptional circumstances. See Order, at 1076 n. 24, 1077; Memorandum Opinion and Order (Docket No. 18110), 53 F.C.C.2d 589, 591, 592 (1975).
10
Radio and television stations are treated the same under the regulations to the extent that, if there is only one broadcast station serving a community—regardless of whether it is a radio or television station—common ownership of it and a co-located daily newspaper is barred. On the other hand, radio and television stations are given different weight to the extent that the presence of a radio station does not exempt a newspaper-television combination from divestiture, whereas the presence of a television station does exempt a newspaper-radio combination. The latter difference in treatment was explained on the ground that "[r]ealistically, a radio station cannot be considered the equal of either the paper or the television station in any se se, least of all in terms of being a source for news or for being the medium turned to for discussion of matters of local concern." Order, at 1083. The Commission also explained that the regulations did not take into account the presence of magazines and other periodicals, or out-of-town radio or television stations not encompassing the entire community with a clear signal, since—aside from their often small market share—these sources could not be depended upon for coverage of local issues. See, id., at 1081-1082.
11
While noting that the Commission "would not be favorably inclined to grant any request premised on views rejected when the rule was adopted," the Order stated that temporary or permanent waivers might be granted if the common owner were unable to sell his station or could sell it only at an artificially depressed price; if it could be shown that separate ownership of the newspaper and the broadcast station "cannot be supported in the locality"; or, more generally, if the underlying purposes of the divestiture rule "would be better served by continuation of the current ownership pattern." Id., at 1085.
12
As to existing newspaper-broadcast combinations not subject to the divestiture requirement, the Commission indicated that, within certain limitations, issues relating to concentration of ownership would continue to be considered on a case-by-case basis in the context of license renewal proceedings. Thus, while making clear the Commission's view that renewal proceedings were not a proper occasion for any "overall restructuring" of the broadcast industry, the Order stated that diversification of ownership would remain a relevant consideration in renewal proceedings in which common owners were challenged by competing applicants. Id., at 1088 (emphasis in original); see id., at 1087-1089; n. 5, supra. The Order suggested, moreover, that where a petition to deny renewal is filed, but no competing applicant steps forward, the renewal application would be set for hearing if a sufficient showing were made of specific abuses by a common owner, or of economic monopolization of the sort that would violate the Sherman Act. Order, at 1080 n. 29, 1088.
The Order does not make clear the extent to which hearings will be available on petitions to deny renewal that do not allege specific abuses or economic monopolization. Counsel for the Commission informs us, however, that the Order was intended to "limi[t] such challengers only to the extent that [the Commission] will not permit them to re-argue in an adjudicatory setting the question already decided in this rulemaking, i. e., in what circumstances is the continued existence of co-located newspaper-broadcast combinations per se undesirable." Reply Brief for Petitioner in No. 76-1471, p. 8; see n. 13, infra.
13
The Court of Appeals apparently believed that, under the terms of the Order, future petitions to deny license renewal to existing cross-owners could be set for hearing only if they alleged economic monopolization, and not if they alleged specific programming abuses. See, 181 U.S.App.D.C., at 29 n. 108, 555 F.2d, at 966 n. 108. On the basis of this assumption, the court held that the standards for petitions to deny were unreasonable. Since we do not read the Order as foreclosing the possibility of a hearing upon a claim of specific abuses, and since the Commission itself is apparently of the view that the only issue foreclosed in petitions to deny is the question of whether newspaper-broadcast ownership is per se undesirable, see n. 12, supra, we cannot say that the Order itself unreasonably limits the availability of petitions to deny renewal. The reasonableness of the Commission's actions on particular petitions to deny filed subsequent to the Order is, of course, not before us at this time.
14
Upon motion of the Commission the Court of Appeals temporarily stayed its mandate—insofar as it overturned the Commission's limited divestiture requirement—pending the filing of a petition for certiorari by the Commission. 181 U.S.App.D.C. 30, 555 F.2d 967 (1977). The Commission filed its petition for certiorari within the time allotted by the Court of Appeals, and thus the stay has remained in effect. See 28 U.S.C. § 2101(f); Fed.Rule App.Proc. 41(b).
15
Several of the petitioners contend that the Court of Appeals exceeded the proper role of a reviewing court by directing the Commission to adopt a rule requiring divestiture of all existing combinations, rather than allowing the Commission to reconsider its decision and formulate its own approach in light of the legal principles set forth by the court. Petitioners cite well-established authority to the effect that, absent extraordinary circumstances, "the function of the reviewing court ends when an error of law is laid bare. At that point the matter once more goes to the Commission for reconsideration." FPC v. Idaho Power Co., 344 U.S. 17, 20, 73 S.Ct. 85, 87, 97 L.Ed. 15 (1952); accord, NLRB v. Food Store Employees, 417 U.S. 1, 9-10, 94 S.Ct. 2074, 2079-2080, 40 L.Ed.2d 612 (1974); South Prairie Constr. Co. v. Local No. 627, Operating Engineers, 425 U.S. 800, 805-806, 96 S.Ct. 1842, 1844-1845, 48 L.Ed.2d 382 (1976). In light of our disposition of these cases, we need not decide whether the Court of Appeals was justified in departing from the latter course of action.
16
The rationality of the limited divestiture requirement is discussed in Part III, infra.
17
NAB and ANPA make one final argument in support of their position that the regulations exceed the Commission's authority. They claim that—
regardless of the otherwise broad scope of the Commission's rulemaking authority—both Congress and the Commission itself have indicated that the Commission lacks authority to promulgate any rules prohibiting newspaper owners from acquiring broadcast licenses. They rely on a legal opinion by the Commission's first General Counsel that was submitted to the Senate Interstate Commerce Committee, Memorandum to the Commission: Opinion of the General Counsel, Jan. 25, 1937, reprinted in App. 445-465, and the legislative history of proposed amendments to the Act that were considered in the late 1940's and early 1950's but never passed, S. 1333, § 25, Hearings on S. 1333 before a Subcommittee of the Senate Committee on Interstate and Foreign Commerce, 80th Cong., 1st Sess. (1947); S. 1973, § 14, 81st Cong., 1st Sess. (1949); S. 658, 82 Cong., 2d Sess. (1952) (House amendment § 7(c)).
This argument is wholly unavailing. Apart from any questions as to the weight that should be given to a General Counsel's opinion which was never formally adopted by the Commission, and to legislative statements made subsequent to enactment of the statute being construed, see, e. g., United States v. Southwestern Cable Co., 392 U.S. 157, 170, 88 S.Ct. 1994, 2001, 20 L.Ed.2d 1001 (1968); United States v. Wise, 370 U.S. 405, 411, 82 S.Ct. 1354, 1358, 8 L.Ed.2d 590 (1962), the cited materials are simply irrelevant to the issue in this case. The Commission's General Counsel merely co cluded that newspaper owners, as a class, could not be absolutely barred from owning broadcast stations; he did not address the much narrower question of whether a newspaper owner may be barred from acquiring a broadcast station located in the same community as the newspaper. See Opinion of the General Counsel, supra, App. 447, 449. Similarly, the proposed amendments to the Act apparently would have only precluded the Commission from adopting a total prohibition on newspaper ownership of broadcast stations. See Hearings on S. 1333, supra, at 44, 69-70; Hearings on S. 1973 before a Subcommittee of the Senate Committee on Interstate & Foreign Commerce, 81st Cong., 1st Sess., 20-21, 42-44, 103-105 (1949); S.Rep.No. 741, 81st Cong., 1st Sess., 2-3 (1949). Congress' rejection of the amendments as unnecessary, see House Conf.Rep.No. 2426, 82d Cong., 2d Sess., 18-19 (1952); S.Rep.No. 741, supra, at 2-3—following the Commission's representation that it lacked such authority even without the amendments, see Hearings on S. 1973, supra, at 103-104 (testimony of FCC Chairman Hyde) sheds no light on the question at issue here.
18
We note also that the regulations are in form quite similar to the prohibitions imposed by the antitrust laws. This court has held that application of the antitrust laws to newspapers is not only consistent with, but is actually supportive of the values underlying, the First Amendment. See, e. g., Associated Press v. United States, 326 U.S. 1, 65 S.Ct. 1416, 89 L.Ed. 2013 (1945); Lorain Journal Co. v. United States, 342 U.S. 143, 72 S.Ct. 181, 96 L.Ed. 62 (1951); Citizen Publishing Co. v. United States, 394 U.S. 131, 139-140, 89 S.Ct. 927, 931-940, 22 L.Ed.2d 148 (1969). See also United States v. Radio Corp. of America, 358 U.S. 334, 351-352, 79 S.Ct. 457, 467-468, 3 L.Ed.2d 354 (1959). Since the Commission relied primarily on First Amendment rather than antitrust considerations, however, the fact that the antitrust laws are fully applicable to newspapers is not a complete answer to the issues in this case.
19
NAB frames this argument in terms of the First Amendment; ANPA advances it as an equal protection claim under the Fifth Amendment.
20
The reasonableness of the regulations as a means of achieving diversification is underscored by the fact that waivers are potentially available from both the prospective and the divestiture rules in cases in which a broadcast station and a co-located daily newspaper cannot survive without common ownership. See nn. 9, 11, supra.
21
The APA provides in relevant part:
"To the extent necessary to decision and when presented, the reviewing court shall decide all relevant questions of law, interpret constitutional and statutory provisions, and determine the meaning or applicability of the terms of an agency action. The reviewing court shall—
* * * * *
"(2) hold unlawful and set aside agency action, findings, and conclusions found to be—
"(A) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law;
"(B) contrary to constitutional right, power, privilege, or immunity;
"(C) in excess of statutory jurisdiction, authority, or limitations, or short of statutory right;
"(D) without observance of procedure required by law;
"(E) unsupported by substantial evidence in a case subject to sections 556 and 557 of this title or otherwise reviewed on the record of an agency hearing provided by statute; or
"(F) unwarranted by the facts to the extent that the facts are subject to trial de novo by the reviewing court.
"In making the foregoing determinations, the court shall review the whole record or those parts of it cited by a party, and due account shall be taken of the rule of prejudical error." 5 U.S.C. § 706(2) (1976 ed.).
22
Although the Order is less than entirely clear in this regard, the Commission's theory with respect to "economic dislocations" and programming apparently was that, because of high interest rates, new owners would have to devote a substantial portion of revenues to debt service, and insufficient working capital would remain to finance local programming. See Order, at 1068 (describing comments to this effect).
23
In the Order the Commission expressed concern that a sweeping divestiture requirement "could reduce local ownership as well as the involvement of owners in management." Id., at 1078 (emphasis added). The Court of Appeals questioned the validity of any reliance on owner involvement in management, because "no evidence was presented that the local owners . . . are actively involved in daily management" and the Order itself had observed that " '[m]ost of the parties state that their broadcast stations and newspapers have separate management, facilities, and staff . . . .' " 181 U.S.App.D.C., at 27, 555 F.2d, at 964, quoting Order, at 1059. Of course, the fact that newspapers and broadcast stations are separately managed does not foreclose the possibility that the common owner participates in management of the broadcast station and not the newspaper. But in any event, the Commission clearly did not place any significant weight on this factor, and we therefore need not consider it. See 5 U.S.C. § 706 (1976 ed.), quoted in part in n. 21, supra (rule of prejudicial error).
24
We agree with the Court of Appeals that "[p]rivate losses are a relevant concern under the Communications Act only when shown to have an adverse effect on the provision of broadcasting service to the public." 181 U.S.App.D.C., at 27-28, 555 F.2d, at 964-965, citing FCC v. Sanders Bros. Radio Station, 309 U.S. 470, 474-476, 60 S.Ct. 693, 697-698, 84 L.Ed. 869 (1940), and Carroll Broadcasting v. FCC, 103 U.S.App.D.C. 346, 258 F.2d 440 (1958). Private losses that result in discouragement of investment in quality service have such an effect.
25
Section 301 of the Act provides that "no [broadcast] license shall be construed to create any right, beyond the terms, conditions, and periods of the license." 47 U.S.C. § 301. The fact that a licensee does not have any legal or proprietary right to a renewal does not mean, however, that the Commission cannot take into account the incumbent's past performance in deciding whether renewal would serve the public interest. See infra, at 810-811, and n. 31.
26
See B. Robbins, A Study of Pioneer AM Radio Stations and Pioneer Television Stations (1971), reprinted in App. 694-712.
27
Earlier in the Order, the Commission had noted that this study was the first to be based on the 1973 annual programming reports for television stations, which were not yet available at the time the programming studies submitted by the parties were conducted. Order, at 1073; see id., at 1094.
The United States suggests that the Commission could not properly have relied on this study since it was not made available to the parties for comment in advance of the Commission's decision. Brief for United States 46 n. 39. No party petitioned the Commission for reconsideration on this ground, nor was the issue raised in the Court of Appeals or in any of the petitions for certiorari, and it is therefore not before us.
28
Commissioner Hooks effectively summarized this complex of factors in his separate opinion, concurring in the Commission's decision not to order across-the-board divestiture, while dissenting on other grounds:
"[A]s I contemplate the superior performance of many newspaper-owned stations . . . and speculate on the performance of some unknown successor, my conditioned response yields 'a bird in the hand is worth two in the bush' philosophy. Opponents [of divestiture] ask: Why require divestiture for its own sake of a superior broadcaster, with experience, background and resources, for an unknown licensee whose operation may be inferior? Can we afford, through wide-scale divestiture, to experiment with a dogmatic diversity formula; and after the churning has ceased, who will profit—the new owners or the public?" Order, at 1109.
29
The fact that 75%, but not all, of the existing television-newspaper combinations are locally owned does not mean that it was irrational for the Commission to take into account local ownership as one of several factors justifying a decision to "grandfather" most existing combinations, including those that are not locally owned. The Commission has substantial discretion as to whether to proceed by rulemaking or adjudication, see SEC v. Chenery Corp., 332 U.S. 194, 201-202, 67 S.Ct. 1575, 1579-1580, 91 L.Ed. 1995 (1947), and—in the context of a rule based on a multifactor weighing process—every consideration need not be equally applicable to each individual case.
30
The Order at one point states: "If our democratic society is to function, nothing can be more important than insuring that there is a free flow of information from as many divergent sources as possible." Order, at 1079 (emphasis added). The Court of Appeals recognized, however, that "the Commission probably did not intend for this . . . statemen[t] to be read literally," 181 U.S.App.D.C., at 26, 555 F.2d, at 963, and, indeed, it appears from the context that the statement was intended only as an explanation of why the Commission was adopting a First Amendment rather than an antitrust focus.
31
Prior to 1952, § 307(d) provided that decisions on renewal applications "shall be limited to and governed by the same considerations and practice which affect the granting of original applications." See Communications Act of 1934, § 307(d), 48 Stat. 1084. In 1952 the section was amended to provide simply that renewal "may be granted . . . if the Commission finds that public interest, convenience, and necessity would be served thereby." Communications Act Amendments, 1952, § 5, 66 Stat. 714. The House Report explained that the previous language "is neither realistic nor does it reflect the way in which the Commission actually has handled renewal cases," H.R.Rep. No. 1750, 82d Cong., 2d Sess., 8 (1952), U.S.Code Cong. & Admin.News 1952, pp. 2234, 2241, and the Senate Report specifically stated that the Commission has the "right and duty to consider, in the case of a station which has been in operation and is applying for renewal, the overall performance of that station against the broad standard of public interest, convenience, and necessity," S.Rep. No. 44, 82d Cong., 1st Sess., 7 (1951).
32
The Commission also points out, Brief for Petitioner in No. 76-1471, p. 24, that it has a rule against "trafficking"—i. e., the acquisition and sale of licenses to realize a quick profit—that applies to license transfers or assignments within three years after a licensee commences operations. See 47 CFR § 1.597 (1976); Crowder v. FCC, 130 U.S.App.D.C. 198, 201-202, and nn. 22-23, 399 F.2d 569, 572-573, and nn. 22-23, cert. denied, 393 U.S. 962, 89 S.Ct. 400, 21 L.Ed.2d 375 (1968).
| 78
|
57 L.Ed.2d 91
98 S.Ct. 2207
437 U.S. 117
EXXON CORPORATION et al., Appellants,v.GOVERNOR OF MARYLAND et al. SHELL OIL COMPANY, Appellant, v. GOVERNOR OF MARYLAND et al. CONTINENTAL OIL COMPANY et al., Appellants, v. GOVERNOR OF MARYLAND et al. GULF OIL CORPORATION, Appellant, v. GOVERNOR OF MARYLAND et al. ASHLAND OIL, INC., et al., Appellants, v. GOVERNOR OF MARYLAND et al.
Nos. 77-10, 77-11, 77-12, 77-47 and 77-64.
Argued Feb. 28, 1978.
Decided June 14, 1978.
Rehearing Denied Oct. 2, 1978.
See 439 U.S. 884, 99 S.Ct. 232, 233.
Syllabus
Responding to evidence that during the 1973 petroleum shortage oil producers or refiners were favoring company-operated gasoline stations, Maryland enacted a statute prohibiting producers or refiners from operating retail service stations within the State, and requiring them to extend all "voluntary allowances" (temporary price reductions granted to independent dealers injured by local competitive price reductions) uniformly to all stations they supply. In actions by several oil companies challenging the validity of the statute on various grounds, the Maryland trial court held the statute invalid primarily on substantive due process grounds, but the Maryland Court of Appeals reversed, upholding the validity of the statute against contentions, inter alia, that it violated the Commerce and Due Process Clauses and conflicted with § 2(b) of the Clayton Act, as amended by the Robinson-Patman Act, which prohibits price discrimination, with the proviso that a seller can defend a price discrimination charge by showing that he charged a lower price in good faith to meet a competitor's equally low price. Held :
1. The Maryland statute does not violate the Due Process Clause, since, regardless of the ultimate efficacy of the statute, it bears a reasonable relation to the State's legitimate purpose in controlling the gasoline retail market. Pp. 124-125.
2. The divestiture provisions of the statute do not violate the Commerce Clause. Pp. 125-129.
(a) That the burden of such provisions falls solely on interstate companies does not, by itself, establish a claim of discrimination again t interstate commerce. The statute creates no barrier against interstate independent dealers, nor does it prohibit the flow of interstate goods, place added costs upon them, or distinguish between in-state and out-of-state companies in the retail market. Hunt v. Washington Apple Advertising Comm'n, 432 U.S. 333, 97 S.Ct. 2434, 53 L.Ed.2d 383; and Dean Milk Co. v. Madison, 340 U.S. 349, 71 S.Ct. 295, 95 L.Ed. 329, distinguished. Pp. 125-126.
(b) Nor does the fact that the burden of state regulation falls on interstate companies show that the statute impermissibly burdens interstate commerce, even if some refiners were to stop selling in the State because of the divestiture requirement and even if the elimination of company-operated stations were to deprive consumers of certain special services. Interstate commerce is not subjected to an impermissible burden simply because an otherwise valid regulation causes some business to shift from one interstate supplier to another. The Commerce Clause protects the interstate market, not particular interstate firms, from prohibitive or burdensome regulations. Pp. 127-128.
(c) The Commerce Clause does not, by its own force, pre-empt the field of retail gasoline marketing, but, absent a relevant congressional declaration of policy, or a showing of a specific discrimination against, or burdening of, interstate commerce, the States have the power to regulate in this area. Pp. 128-129.
3. The "voluntary allowances" requirement of the Maryland statute is not pre-empted by § 2(b) of the Clayton Act, as amended by the Robinson-Patman Act, or the Sherman Act. Pp. 129-134.
(a) Any hypothetical "conflict" arising from the possibility that the Maryland statute may require uniformity in some situations in which the Robinson-Patman Act would permit localized price discrimination is not sufficient to warrant pre-emption. P. 130-131.
(b) Neither § 2(b) nor the federal policy favoring competition establishes a federal right to engage in discriminatory pricing in certain situations. Section 2(b)'s proviso is merely an exception to that statute's broad prohibition against discriminatory pricing and does not create any new federal right, but rather defines a specific, limited defense. Pp. 131-133.
(c) While in the sense that the Maryland statute might have an anticompetitive effect there is a conflict between that statute and the Sherman Act's central policy of "economic liberty," nevertheless this sort of conflict cannot by itself constitute a sufficient reason for invalidating the Maryland statute, for if an adverse effect on competition were, in and of itself, enough to invalidate a state statute, the States' power to engage in economic regulation would be effectively destroyed. Pp. 133-134.
279 Md. 410, 370 A.2d 1102 and 372 A.2d 237, affirmed.
William Simon, Washington, D. C., for appellants.
Francis B. Burch, Atty. Gen., and Thomas M. Wilson, III, Chief Asst. Atty. Gen., Baltimore, Md., for appellees.
Mr. Justice STEVENS delivered the opinion of the Court.
1
A Maryland statute provides that a producer or refiner of petroleum products (1) may not operate any retail service station within the State, and (2) must extend all "voluntary
2
[Amicus Curiae Information from page 119 intentionally omitted] allowances" uniformly to all service stations it supplies.1 The questions presented are whether the statute violates either the Commerce or the Due Process Clause of the Constitution of the United States, or is directly or indirectly pre-empted by the congressional expression of policy favoring vigorous competition found in § 2(b) of the Clayton Act, 38 Stat. 730, as amended by the Robinson-Patman Act, 49 Stat. 1526.2 The Court of Appeals of Maryland answered these questions in favor of the validity of the statute. 279 Md. 410, 370 A.2d 1102 and 372 A.2d 237 (1977). We affirm.
3
* The Maryland statute is an outgrowth of the 1973 shortage of petroleum. In response to complaints about inequitable distribution of gasoline among retail stations, the Governor of Maryland directed the State Comptroller to conduct a market survey. The results of that survey indicated that gasoline stations operated by producers or refiners had received preferential treatment during the period of short supply. The Comptroller therefore proposed legislation which, according to the Court of Appeals, was "designed to correct the inequities in the distribution and pricing of gasoline reflected by the survey." Id., at 421, 370 A.2d, at 1109. After legislative hearings and a "special veto hearing" before the Governor, the bill was enacted and signed into law.
4
Shortly before the effective date of the Act, Exxon Corp. filed a declaratory judgment action challenging the statute in the Circuit Court of Anne Arundel County, Md. The essential facts alleged in the complaint are not in dispute. All of the gasoline sold by Exxon in Maryland is transported into the State from refineries located elsewhere. Although Exxon sells the bulk of this gas to wholesalers and independent retailers, it also sells directly to the consuming public through 36 company-operated stations.3 Exxon uses these stations to test innovative marketing concepts or products.4 Focusing primarily on the Act's requirement that it discontinue its operation of these 36 retail stations, Exxon's complaint challenged the validity of the statute on both constitutional and federal statutory grounds.5
5
During the ensuing nine months, six other oil companies instituted comparable actions. Three of these plaintiffs, or their subsidiaries, sell their gasoline in Maryland exclusively through company-operated stations.6 These refiners, using trade names such as "Red Head" and "Scot," concentrate largely on high-volume sales with prices consistently lower than those offered by independent dealer-operated major brand stations. Testimony presented by these refiners indicated that company ownership is essential to their method of private brand, low-priced competition. They therefore joined Exxon in its attack on the divestiture provisions of the Maryland statute.
6
The three other plaintiffs, like Exxon, sell major brands primarily through dealer-operated stations, although they also operate at least one retail station each.7 They, too, challenged the statute's divestiture provisions, but, in addition, they specially challenged the requirement that "voluntary allowances" be extended uniformly to all retail service stations supplied in the State. Although not defined in the statute, the term "voluntary allowances" refers to temporary price reductions granted by the oil companies to independent dealers who are injured by local competitive price reductions of competing retailers.8 The oil companies regard these temporary allowances as legitimate price reductions protected by § 2(b). In advance of trial, Exxon, Shell, and Gulf moved for a partial summary judgment declaring this portion of the Act invalid as in conflict with § 2(b).
7
The Circuit Court granted the motion, and the trial then focused on the validity of the divestiture provisions. As brought out during the trial, the salient characteristics of the Maryland retail gasoline market are as follows: Approximately 3,800 retail service stations in Maryland sell over 20 different brands of gasoline. However, no petroleum products are produced or refined in Maryland, and the number of stations actually operated by a refiner or an affiliate is relatively small, representing about 5% of the total number of Maryland retailers.
8
The refiners introduced evidence indicating that their ownership of retail service stations has produced significant benefits for the consuming public.9 Moreover, the three refiners that now market solely through company-operated stations may elect to withdraw from the Maryland market altogether if the statute is enforced. There was, however, no evidence that the total quantity of petroleum products shipped into Maryland would be affected by the statute.10 After trial, the Circuit Court held the entire statute invalid, primarily on substantive due process grounds.
9
The Maryland Court of Appeals reversed, rejecting all of the refiners' attacks against both the divestiture provisions and the voluntary-allowance provision. Most of those attacks are not pursued here;11 instead, appellants have focused their appeals on the claims that the Maryland statute violates the Due Process and Commerce Clauses and that it is in conflict with the Robinson-Patman Act.
II
10
Appellants' substantive due process argument requires little discussion.12 The evidence presented by the refiners may cast some doubt on the wisdom of the statute, but it is, by now, absolutely clear that the Due Process Clause does not empower the judiciary "to sit as a 'superlegislature to weigh the wisdom of legislation' . . .." Ferguson v. Skrupa, 372 U.S. 726, 731, 83 S.Ct. 1028, 1032, 10 L.Ed.2d 93 (citation omitted). Responding to evidence that producers and refiners were favoring company-operated stations in the allocation of gasoline and that this would eventually decrease the competitiveness of the retail market, the State enacted a law prohibiting producers and refiners from operating their own stations. Appellants argue that this response is irrational and that it will frustrate rather than further the State's desired goal of enhancing competition. But, as the Court of Appeals observed, this argument rests simply on an evaluation of the economic wisdom of the statute, 279 Md., at 428, 370 A.2d, at 1112, and cannot override the State's authority "to legislate against what are found to be injurious practices in their internal commercial and business affairs . . .." Lincoln Federal Labor Union v. Northwestern Iron & Metal Co., 335 U.S. 525, 536, 69 S.Ct. 251, 257, 93 L.Ed. 212.13 Regardless of the ultimate economic efficacy of the statute, we have no hesitancy in concluding that it bears a reasonable relation to the State's legitimate purpose in controlling the gasoline retail market, and we therefore reject appellants' due process claim.
III
11
Appellants argue that the divestiture provisions of the Maryland statute violate the Commerce Clause in three ways: (1) by discriminating against interstate commerce; (2) by unduly burdening interstate commerce; and (3) by imposing controls on a commercial activity of such an essentially interstate character that it is not amenable to state regulation.
12
Plainly, the Maryland statute does not discriminate against interstate goods, nor does it favor local producers and refiners. Since Maryland's entire gasoline supply flows in interstate commerce and since there are no local producers or refiners, such claims of disparate treatment between interstate and local commerce would be meritless. Appellants, however, focus on the retail market arguing that the effect of the statute is to protect in-state independent dealers from out-of-state competition. They contend that the divestiture provisions "create a protected enclave for Maryland independent dealers . . .."14 As support for this proposition, they rely on the fact that the burden of the divestiture requirements falls solely on interstate companies. But this fact does not lead, either logically or as a pra tical matter, to a conclusion that the State is discriminating against interstate commerce at the retail level.
13
As the record shows, there are several major interstate marketers of petroleum that own and operate their own retail gasoline stations.15 These interstate dealers, who compete directly with the Maryland independent dealers, are not affected by the Act because they do not refine or produce gasoline. In fact, the Act creates no barriers whatsoever against interstate independent dealers; it does not prohibit the flow of interstate goods, place added costs upon them, or distinguish between in-state and out-of-state companies in the retail market. The absence of any of these factors fully distinguishes this case from those in which a State has been found to have discriminated against interstate commerce. See, e. g., Hunt v. Washington Apple Advertising Comm'n., 432 U.S. 333, 97 S.Ct. 2434, 53 L.Ed.2d 383; Dean Milk Co. v. Madison, 340 U.S. 349, 71 S.Ct. 295, 95 L.Ed. 329. For instance, the Court in Hunt noted that the challenged state statute raised the cost of doing business for out-of-state dealers, and, in various other ways, favored the in-state dealer in the local market. 432 U.S., at 351-352, 97 S.Ct., at 2445-2446. No comparable claim can be made here. While the refiners will no longer enjoy their same status in the Maryland market, in-state independent dealers will have no competitive advantage over out-of-state dealers. The fact that the burden of a state regulation falls on some interstate companies does not, by itself, establish a claim of discrimination against interstate commerce.16
14
Appellants argue, however, that this fact does show that the Maryland statute impermissibly burdens interstate commerce. They point to evidence in the record which indicates that, because of the divestiture requirements, at least three refiners will stop selling in Maryland, and which also supports their claim that the elimination of company-operated stations will deprive the consumer of certain special services. Even if we assume the truth of both assertions, neither warrants a finding that the statute impermissibly burdens interstate commerce.
15
Some refiners may choose to withdraw entirely from the Maryland market, but there is no reason to assume that their share of the entire supply will not be promptly replaced by other interstate refiners. The source of the consumers' supply may switch from company-operated stations to independent dealers, but interstate commerce is not subjected to an impermissible burden simply because an otherwise valid regulation causes some business to shift from one interstate supplier to another.
16
The crux of appellants' claim is that, regardless of whether the State has interfered with the movement of goods in interstate commerce, it has interfered "with the natural functioning of the interstate market either through prohibition or through burdensome regulation." Hughes v. Alexandria Scrap Corp., 426 U.S. 794, 806, 96 S.Ct. 2488, 2496, 49 L.Ed.2d 220. Appellants then claim that the statute "will surely change the market structure by weakening the independent refiners . . .."17 We cannot, however, accept appellants' underlying notion that the Commerce Clause protects the particular structure or methods of operation in a retail market. See Breard v. Alexandria, 341 U.S. 622, 71 S.Ct. 920, 95 L.Ed. 1233. As indicated by the Court in Hughes, the Clause protects the interstate market, not particular interstate firms, from prohibitive or burdensome regulations. It may be true that the consuming public will be injured by the loss of the high-volume, low-priced stations operated by the independent refiners, but again that argument relates to the wisdom of the statute, not to its burden on commerce.
17
Finally, we cannot adopt appellants' novel suggestion that because the economic market for petroleum products is nationwide, no State has the power to regulate the retail marketing of gas. Appellants point out that many state legislatures have either enacted or considered proposals similar to Maryland's,18 and that the cumulative effect of this sort of legislation may have serious implications for their national marketing operations. While this concern is a significant one, we do not find that the Commerce Clause, by its own force, pre-empts the field of retail gas marketing. To be sure, "the Commerce Clause acts as a limitation upon state power even without congressional implementation." Hunt v. Washington Apple Advertising Comm'n., supra, 432 U.S., at 350, 97 S.Ct., at 2445 (citations omitted). But this Court has only rarely held that the Commerce Clause itself pre-empts an entire field from state regulation, and then only when a lack of national uniformity would impede the flow of interstate goods. See Wabash, St. L. & P. R. Co. v. Illinois, 118 U.S. 557, 7 S.Ct. 4, 30 L.Ed. 244; see also Cooley v. Board of Wardens, 12 How. 299, 319, 13 L.Ed. 996. The evil that appellants perceive in this litigation is not that the several States will enact differing regulations, but rather that they will all conclude that divestiture provisions are warranted. The problem thus is not one of national uniformity. In the absence of a relevant congressional declaration of policy, or a showing of a specific discrimination against, or burdening of, interstate commerce, we cannot conclude that the States are without power to regulate in this area.
IV
18
Exxon, Phillips, Shell, and Gulf contend that the requirement that voluntary allowances be extended to all retail service stations is either in direct conflict with § 2(b) of the Clayton Act, as amended by the Robinson-Patman Act, or, more generally, in conflict with the basic federal policy in favor of competition, which is reflected in the Sherman Act as well as § 2(b). In rejecting these contentions, the Maryland Court of Appeals noted that the Maryland statute covered two different competitive situations.19 In the first situation a competing retailer lowers its price on its own, and the oil company gives its own retailer a price reduction to enable it to meet that lower price. In the second situation, the competing retailer's lower price is subsidized by its supplier, and the oil company gives its own retailer a price reduction to meet the competition. The good-faith defense of § 2(b) is clearly not available to the oil company in the first situation because the voluntary allowance would not be a response t competition from another oil company. SeeFTC v. Sun Oil Co., 371 U.S. 505, 83 S.Ct. 358, 9 L.Ed.2d 466. In the second situation the law is unsettled,20 but the Court of Appeals concluded that the defense would also be unavailable. The court therefore reasoned that there was no conflict between the Maryland statute and § 2(b), since the statute did not apply to any allowance protected by federal law. In our opinion, it is not necessary to decide whether the § 2(b) defense would apply in the second situation, for even assuming that it does, there is no conflict between the Maryland statute and the Robinson-Patman Act sufficient to require pre-emption.
19
Appellants' first argument is that compliance with the Maryland statute may cause them to violate the Robinson-Patman Act. They stress the possibility that the requirement that a price reduction be made on a statewide basis may result in discrimination between customers who would otherwise receive the same price, and they describe various hypothetical situations to illustrate this point.21 But, "[i]n this as in other areas of coincident federal and state regulation, the 'teaching of this Court's decisions . . . enjoin[s] seeking out conflicts between state and federal regulation where none clearly exists.' Huron Cement Co. v. Detroit, 362 U.S. 440, 446, 80 S.Ct. 813, 817, 4 L.Ed.2d 852." Seagram & Sons, Inc. v. Hostetter, 384 U.S. 35, 45, 86 S.Ct. 1254, 1261, 16 L.Ed.2d 336. See also State v. Texaco, Inc., 14 Wis.2d 625, 111 N.W.2d 918 (1961). The Court in Seagram & Sons went on to say that [a]lthough it is possible to envision circumstances under which price discriminations proscribed by the Robinson-Patman Act might be compelled by [the state statute], the existence of such potential conflicts is entirely too speculative in the present posture of this case" to warrant pre-emption. 384 U.S., at 46, 86 S.Ct., at 1261. That counsel of restraint applies with even greater force here. For even if we were to delve into the hypothetical situations posed by appellants, we would not be presented with a state statute that requires a violation of the Robinson-Patman Act. Instead, the alleged "conflict" here is in the possibility that the Maryland statute may require uniformity in some situations in which the Robinson-Patman Act would permit localized discrimination.22 This sort of hypothetical conflict is not sufficient to warrant pre-emption.
20
Appellants, however, also claim that the Robinson-Patman Act does not simply permit localized discrimination, but actually establishes a federal right to engage in discriminatory pricing in certain situations. They argue that this federal right may be found directly in § 2(b), or, more generally, in our Nation's basic policy favoring competition as reflected in the Sherman Act as well as § 2(b). We find neither argument persuasive.
21
The proviso in § 2(b) of the Clayton Act, as amended by the Robinson-Patman Act, is merely an exception to that statute's broad prohibition against discriminatory pricing. It created no new federal right; quite the contrary, it defined a specific, limited defense, and even narrowed the good-faith defense that had previously existed.23 To be sure, the defense is an important one, and the interpretation of its contours has been informed by the underlying national policy favoring competition which it reflects.24 But it is illogical to infer that by excluding certain competitive behavior from the general ban against discriminatory pricing, Congress intended to pre-empt the States' power to prohibit any conduct within that exclusion. This Court is generally reluctant to infer pre-emption, see, e. g., De Canas v. Bica, 424 U.S. 351, 357-358, n. 5, 96 S.Ct. 933, 937, n. 5, 47 L.Ed.2d 43; Merrill Lynch, Pierce, Fenner & Smith v. Ware, 414 U.S. 117, 127, 94 S.Ct. 383, 389, 38 L.Ed.2d 348, and it would be particularly inappropriate to do so in this case because the basic purposes of the state statute and the Robinson-Patman Act are similar. Both reflect a policy choice favoring the interest in equal treatment of all customers over the interest in allowing sellers freedom to make selective competitive decisions.25
22
Appellants point out that the Robinson-Patman Act itself may be characterized as an exception to, or a qualification of, the more basic national policy favoring free competition,26 and argue that the Maryland statute "undermin[es]" the competitive balance that Congress struck between the Robinson-Patman and Sherman Acts.27 This is merely another way of stating that the Maryland statute will have an anticompetitive effect. In this sense, there is a conflict between the statute and the central policy of the Sherman Act—our "charter of economic liberty." Northern Pacific R. Co. v. United States, 356 U.S. 1, 4, 78 S.Ct. 514, 517, 2 L.Ed.2d 545. Nevertheless, this sort of conflict cannot itself constitute a sufficient reason for invalidating the Maryland statute. For if an adverse effect on competition were, in and of itself, enough to render a state statute invalid, the States' power to engage in economic regulation would be effectively destroyed.28 We are, therefore, satisfied that neither the broad implications of the Sherman Act nor the Robinson-Patman Act can fairly be construed as a congressional decision to pre-empt the power of the Maryland Legislature to enact this law.
23
The judgment is affirmed.
24
So Ordered.
25
Mr. Justice POWELL took no part in the consideration or decision of these cases.
26
Mr. Justice BLACKMUN, concurring in part and dissenting in part.
27
Although I agree that the Maryland Motor Fuel Inspection Law1 does not offend substantive due process or federal antitrust policy, I dissent from Part III of the Court's opinion because it fails to condemn impermissible discrimination against interstate commerce in retail gasoline marketing. The divestiture provisions, Md.Code Ann., Art. 56, §§ 157E(b) and (c) (Supp.1977) (hereinafter referred to as §§ (b) and (c)), preclude out-of-state competitors from retailing gasoline within Maryland. The effect is to protect in-state retail service station dealers from the competition of the out-of-state businesses. This protectionist discrimination is not justified by any legitimate state interest that cannot be vindicated by more evenhanded regulation. Sections (b) and (c), therefore, violate the Commerce Clause.2
28
* In Maryland the retail marketing of gasoline is interstate commerce, for all petroleum products come from outside the State. Retailers serve interstate travelers. To the extent that particular retailers succeed or fail in their businesses, the interstate wholesale market for petroleum products is affected. Cf. Dean Milk Co. v. Madison, 340 U.S. 349, 71 S.Ct. 295, 95 L.Ed. 329 (1951).3 The regulation of retail gasoline sales is therefore within the scope of the Commerce Clause. See ibid.; Minnesota v. Barber, 136 U.S. 313, 10 S.Ct. 862, 34 L.Ed. 455 (1890).4
29
The Commerce Clause forbids discrimination against interstate commerce, which repeatedly has been held to mean that States and localities may not discriminate against the transactions of out-of-state actors in interstate markets. E. g., Hunt v. Washington Apple Advertising Comm'n, 432 U.S. 333, 350-352, 97 S.Ct. 2434, 2445-2446, 53 L.Ed.2d 383 (1977); Halliburton Oil Well Co. v. Reily, 373 U.S. 64, 69-73, 83 S.Ct. 1201, 1203-1205, 10 L.Ed.2d 202 (1963); Dean Milk Co. v. Madison, 340 U.S., at 354, 71 S.Ct., at 297; Best & Co. v. Maxwell, 311 U.S. 454, 455-456, 61 S.Ct. 334, 335, 85 L.Ed. 275 (1940). The discrimination need not appear on the face of the state or local regulation. "The commerce clau e forbids discrimination, whether forthright or ingenious. In each case it is our duty to determine whether the statute under attack, whatever its name may be, will in its practical operation work discrimination against interstate commerce." Ibid. (footnote omitted). The state or local authority need not intend to discriminate in order to offend the policy of maintaining a free-flowing national economy. As demonstrated in Hunt, a statute that on its face restricts both intrastate and interstate transactions may violate the Clause by having the "practical effect" of discriminating in its operation. 432 U.S., at 350-352, 97 S.Ct., at 2434-2445.
30
If discrimination results from a statute, the burden falls upon the state or local government to demonstrate legitimate local benefits justifying the inequality and to show that less discriminatory alternatives cannot protect the local interests. Id., at 353, 97 S.Ct., at 2446; Dean Milk Co. v. Madison, 340 U.S., at 354, 71 S.Ct., at 297. This Court does not merely accept without analysis purported local interests. Instead, it independently identifies the character of the interests and judges for itself whether alternatives will be adequate. For example, in Dean Milk the city attempted to justify a milk pasteurization ordinance by claiming it to be a necessary health measure. The city's assertion was not conclusive, however:
31
"A different view, that the ordinance is valid simply because it professes to be a health measure, would mean that the Commerce Clause of itself imposes no limitations on state action other than those laid down by the Due Process Clause, save for the rare instance where a state artlessly discloses an avowed purpose to discriminate against interstate goods." Ibid.
32
In an independent assessment of the asserted purpose, the Court determined exactly how the ordinance protected public health and then concluded that other measures could accomplish the same ends. Id., at 354-356, 71 S.Ct., at 297-298. The city's public health purpose therefore did not justify the discrimination, and the ordinance violated the Commerce Clause.
B
33
With this background, the unconstitutional discrimination in the Maryland statute becomes apparent. No facial inequality exists; §§ (b) and (c) preclude all refiners and producers from marketing gasoline at the retail level. But given the structure of the retail gasoline market in Maryland, the effect of §§ (b) and (c) is to exclude a class of predominantly out-of-state gasoline retailers while providing protection from competition to a class of nonintegrated retailers that is overwhelmingly composed of local businessmen. In 1974, of the 3,780 gasoline service stations in the State, 3,547 were operated by nonintegrated local retail dealers. App. 191, 569, 755. Of the 233 company-operated stations, 197 belonged to out-ofstate integrated producers or refiners. Id., at 190-191. Thirty-four were operated by nonintegrated companies that would not have been affected immediately by the Maryland statute.5 Ibid. The only in-state integrated petroleum firm, Crown Central Petroleum, Inc., operated just two service stations. Id., at 189. Of the class of stations statutorily insulated from the competition of the out-of-state integrated firms, then, more than 99% were operated by local business interests. Of the class of enterprises excluded entirely from participation in the retail gasoline market, 95% were out-of-state firms, operating 98% of the stations in the class. Ibid.
34
The discrimination suffered by the out-of-state integrated producers and refiners is significant. Five of the excluded enterprises, Ashland Oil, Inc., BP Oil, Inc., Kayo Oil Co., Petroleum Marketing Corp., and Southern States Cooperative, Inc., market nonbranded gasoline through price competition rather than through brand recognition. Of the 98 stations marketing gasoline in this manner, all but 6 are company operated. The company operations result from the dominant fact of price competition marketing. According to repeated testimony from petroleum economics experts and officers of price marketers—testimony that the trial court did not discredit—such nonbranded stations can compete successfully only if they have day-to-day control of the retail price of their products, the hours of operation of their stations, and related business details. App. 320, 357, 370-371, 449-451, 503-504, 517, 529-530; Joint App. to Jurisdictional Statements 102a et seq. Only with such control can sufficient sales volume be achieved to produce satisfactory profits at prices two to three cents a gallon below those of the major branded stations. Dealer operation of stations precludes such control because of the illegality of vertical price fixing. See, e. g., 15 U.S.C. § 1 (1976 ed.); White Motor Co. v. United States, 372 U.S. 253, 83 S.Ct. 696, 9 L.Ed.2d 738 (1963). Therefore, because §§ (b) and (c) forbid company operations, these out-of-state competitors will have to abandon the Maryland retail market altogether. App. 100, 357-358, 455, 519; Joint App. to Jurisdictional Statements 103a et seq.6 For the same reason 32 other out-of-state national nonbranded integrated marketers, who operate their own stations without dealers, will be precluded from entering the Maryland retail gasoline market.
35
The record also contains testimony that the discrimination will burden the operations of major branded companies, such as appellants Exxon, Phillips, Shell, and Gulf, all of which are out-of-state firms. Most importantly, §§ (b) and (c) will preclude these companies, as well as those mentioned in the previous paragraph, from competing directly for the profits of retail marketing. According to Richard T. Harvin, retail sales manager for Exxon's eastern marketing region, Exxon's company-operated stations in Maryland annually return 15% of the company's investment—a profit of $700,000 in 1974. App. 316. Sections (b) and (c) will force this return to be shared with the local dealers. In addition, the ban of the sections will preclude the majors from enhancing brand recognition and consumer acceptance through retail outlets with company-controlled standards. Id., at 316, 320, 647, 668-669. Their ability directly to monitor consumer preferences and reactions will be diminished. Id., at 315, 649, 669. And their opportunity for experimentation with retail marketing techniques will be curtailed. Id., at 316-317, 647-649, 669. In short, the divestiture provisions, which will require the appellant majors to cease operation of property valued at more than $10 million, will inflict significant economic hardship on Maryland's major brand companies, all of which are out-of-state firms.
36
Similar hardship is not imposed upon the local service station dealers by the divestiture provisions. Indeed, rather than restricting their ability to compete, the Maryland Act effectively and perhaps intentionally improves their competitive position by insulating them from competition by out-of-state integrated producers and refiners. In ts answers to the various complaints in this case, the State repeatedly conceded that the Act was intended to protect "the retail dealer as an independent businessman [by] reducing the control and dominance of the vertically integrated petroleum producer and refiner in the retail market." Id., at 33; see id., at 51, 54, 104, 128, 132, 145, 147. At trial the State's expert said that the legislation would have the effect of protecting the local dealers against the out-of-state competition. Id., at 613. In short, the foundation of the discrimination in this case is that the local dealers may continue to enter retail transactions and to compete for retail profits while the statute will deny similar opportunities to the class composed almost entirely of out-of-state businesses.7
37
With discrimination proved against interstate commerce, the burden falls upon the State to justify the distinction with legitimate state interests that cannot be vindicated with more evenhanded regulation. On the record before the Court, the State fails to carry its burden. It asserts only in general terms a desire to maintain competition in gasoline retailing. Although this is a laudable goal, it cannot be accepted without further analysis, just as the Court could not accept the mere assertion of a public health justification in Dean Milk. Here, the State ignores the second half of its responsibility; it does not even attempt to demonstrate why competition cannot be preserved without banning the out-of-state interests from the retail market.
38
The State's showing may be so meager because any legitimate interest in competition can be vindicated with more evenhanded regulation. First, to the extent that the State's interest in competition is nothing more than a desire to protect particular competitors—less efficient local businessmen—from the legal competition of more efficient out-of-state firms, the interest is illegitimate under the Commerce Clause. A national economy would hardly flourish if each State could effectively insist that local nonintegrated dealers handle product retailing to the exclusion of out-of-state integrated firms that would have sufficient local political clout to challenge the influence of local businessmen with their local government leaders.8 Each State would be encouraged to "legislate according to its estimate of its own interests, the importance of its own products, and the local advantages or disadvantages of its position in a political or commercial view." J. Story, Commentaries on the Constitution of the United States § 259 (4th ed. 1873), quoted in H. P. Hood & Sons v. Du Mond, 336 U.S. 525, 533, 69 S.Ct. 657, 662, 93 L.Ed. 865 (1949). See also, e. g., The Federalist, Nos. 7, 11, 12 (Hamilton), No. 42 (Madison). The Commerce Clause simply does not countenance such parochialism.
39
Second, a legitimate concern of the State could be to limit the economic power of vertical integration. But nothing in the record suggests that the vertical integration that has already occurred in the Maryland petroleum market has inhibited competition. Indeed, the trial court found that the retail market, dominated by 3,547 dealer outlets constituting more than 90% of the State's service stations, is high competitive.9 Therefore, the State has shown no need for the divestiture of existing company-owned stations required by § (c). The legitimacy of any concern about future integration, which could support the discrimination of § (b), is suspect because of the exemption granted wholesalers, which, not surprisingly, are local businesses able to influence the state legislature.10 See n. 7, supra.
40
Third, the State appears to be concerned about unfair competitive behavior such as predatory pricing or inequitable allocation of petroleum products by the integrated firms. These are the only examples of specific misconduct asserted in the State's answers. App. 33-34, 54-55, 81-83, 109-111, 133-134, 148-149. But none of the concerns support the discrimination in §§ (b) and (c). There is no proof in the record that any significant portion of the class of out-of-state firms burdened by the divestiture sections has engaged in such misconduct. Furthermore, predatory pricing and unfair allocation already have been prohibited by both state and federal law. See, e. g., Emergency Petroleum Allocation Act of 1973, 87 Stat. 628, 15 U.S.C. § 751 et seq. (1976 ed.); Energy Policy and Conservation Act, § 461, 89 Stat. 955, 15 U.S.C. § 760g (1976 ed.); Maryland Motor Fuel Inspection Law, Md. Code Ann., Art. 56, § 157E(f) (Supp.1977); Maryland Antitrust Act, Md.Com.Law Code Ann. § 11-201 et seq. (1975); Maryland Unfair Sales Act, Md.Com.Law Code Ann. § 11-401 et seq. (1975). Less discriminatory legislation, which would regulate the leasing of all service stations, not just those owned by the out-of-state integrated producers and refiners, could prevent whatever evils arise from shortterm leases. Cf. Maryland Gasoline Products Marketing Act, Md.Com.Law Code Ann. § 11-304(g) (Supp.1977).11
41
In sum, the State has asserted before this Court only a vague interest in preserving competition in its retail gasoline market. It has not shown why its interest cannot be vindicated by legislation less discriminatory toward out-of-state retailers. It therefore has not met its burden to justify the discrimination inherent in §§ (b) and (c), and they violate the Commerce Clause.
II
42
The arguments of the Court's opinion, the Maryland Court of Appeals decision,12 and appellees do not remove the unconstitutional taint from the discrimination inherent in §§ (b) and (c).
43
* The Court offers essentially three responses to the discrimination in the retail gasoline market imposed by the divestiture provisions.13 First, the Court says that the discrimination against the class of out-of-state producers and refiners does not violate the Commerce Clause because the State has not imposed similar discrimination against other out-of-state retailers. Ante, at 125-126. This is said to distinguish the present case from Hunt v. Washington Apple Advertising Comm'n, supra. In fact, however, the unconstitutional discrimination in Hunt was not against all out-of-state interests. North Carolina had enacted a statute requiring that apples marketed in closed containers within the State bear " 'no grade other than the applicable U.S. grade or standard.' " 432 U.S., at 335, 97 S.Ct., at 2437. The Commission contended that the provision discriminated against interstate commerce because it prohibited the display of superior Washington State apple grading marks. The Court did not strike down the provision because it discriminated against the marketing techniques of all out-of-state growers. The provision imposed no discrimination on growers from States that employed only the United States Department of Agriculture grading system.14 Despite this lack of universal discrimination, the Court declared the provision unconstitutional because it discriminated against a single segment of out-of-state marketers of apples, namely the Washington State growers who employed the superior grading system. In this regard, the Maryland divestiture provisions are identical to, not distinguishable from, the North Carolina statute in Hunt. Here, the discrimination has been imposed against a segment of the out-of-state retailers of gasoline, namely, those who also refine or produce petroleum.
44
To accept the argument of the Court, that is, that discrimination must be universal to offend the Commerce Clause, naively will foster protectionist discrimination against interstate commerce. In the future, States will be able to insulate in-state interests from competition by identifying the most potent segments of out-of-state business, banning them, and permitting less effective out-of-state actors to remain. The record shows that the Court permits Maryland to effect just such discrimination in this case. The State bans the most powerful out-of-state firms from retailing gasoline within its boundaries. It then insulates the forced divestiture of 199 service stations from constitutional attack by permitting out-of-state firms such as Pantry Pride, Fisca, Hi-Way, and Midway to continue to operate 34 gasoline stations. Effective out-of-state competition is thereby emasculated—no doubt, an ingenious discrimination. But as stated at the outset, "the commerce clause forbids discrimination, whether forthright or ingenious." Best & Co. v. Maxwell, 311 U.S., at 455, 61 S.Ct., at 335.
45
Second, the Court contends, as a subpart of its primary argument, that the discrimination in Hunt "raised the cost of doing business for out-of-state dealers, and, in various other ways, favored the in-state dealer in the local market. 432 U.S., at 351-352, 97 S.Ct., at 2445-2446. No comparable claim can be made here." Ante, at 126. Once it is seen that the discrimination in Hunt raised the cost of doing business for only one group of the out-of-state marketers of apples, the fallacy of the Court's argument appears. In fact, here the burden imposed upon the class of out-of-state retailers subject to the discrimination of §§ (b) and (c) far exceeds the burdens in Hunt. In Hunt the statute merely increased costs and deprived the Washington growers of the competitive advantages of the use of their grading system. Here, the statute bans the refiners and producers from the retail market altogether—a burden that lacks comparability with the effects in Hunt only because it is more severe.
46
Third, the Court asserts without citation: "The fact that the burden of a state regulation falls on some interstate companies does not, by itself, establish a claim of discrimination against interstate commerce." Ante, at 126. This proposition is correct only to the extent that it is incomplete; it does not apply to the facts present here. It is true that merely demonstrating a burden on some out-of-state actors does not prove unconstitutional discrimination. But when the burden is significant, when it falls on the most numerous and effective group of out-of-state competitors, when a similar burden does not fall on the class of protected in-state businessmen, and when the State cannot justify the resulting disparity by showing that its legislative interests cannot be vindicated by more evenhanded regulation, unconstitutional discrimination exists. The facts of this litigation demonstrate such discrimination, and the Court does not argue persuasively to the contrary.
B
47
The contentions of the Maryland Court of Appeals, which also found no violation of the Commerce Clause, are no more convincing than the arguments of the Court's opinion. First, the Court of Appeals reasoned that §§ (b) and (c) did not discriminate against the class of out-of-state refiners and producers because the wholesale flow of petroleum products into the State was not restricted. 279 Md. 410, 431, 370 A.2d 1102, 1114 (1977). This supposedly distinguished the present facts from those of Dean Milk Co. v. Madison, which involved unconstitutional discrimination against interstate commerce. To begin with, however, the distinction drawn by the Court of Appeals is basically irrelevant. The Maryland statute has not effected discrimination with regard to the wholesaling or interstate transport of petroleum. The discrimination e ists with regard to retailing. The fact that gasoline will continue to flow into the State does not permit the State to deny out-of-state firms the opportunity to retail it once it arrives.
48
Furthermore, Dean Milk cannot be distinguished on the ground asserted by the Court of Appeals. There, this Court invalidated § 7.21 of the General Ordinances of the city of Madison (1949), which outlawed the local sale of milk not pasteurized within five miles of the city. The section did not legally or effectively block the flow of out-of-state milk into Madison to any greater extent than the restrictions on sales of gasoline by out-of-state companies block the flow of gasoline here. In Dean Milk out-of-state producers could bring their milk to Madison, have it pasteurized in Madison, and sell it in Madison without violating § 7.21. If the flow of milk were at all restricted, it was merely because the out-of-state producers chose not to deal with the Madison pasteurizers. Similarly, the flow of gasoline into Maryland may be restricted if the out-of-state producers and refiners choose not to supply the dealers who replace the company-owned operations.15
49
Second, the Court of Appeals said the Maryland legislation did not offend the Commerce Clause because the legislature intended to preserve competition, not to discriminate against interstate commerce. 279 Md., at 431, 370 A.2d, at 1114. With this argument, the court fell into the same trap that confines the State's proffered justifications for the discrimination of §§ (b) and (c). To begin with, the fact that no discrimination was intended is irrelevant where, as here, discriminatory effects result from the statutory scheme. Furthermore, the fact that the legislature might have had a laudable intent when it passed the law cannot by itself justify the divestiture provisions. The State must also show that its interests cannot be vindicated by less discriminatory alternatives. The Court of Appeals erroneously failed to require such a showing from the appellees.
50
Third, the Court of Appeals resurrected the outdated notion that retailing is merely local activity not subject to the strictures of the Commerce Clause. 279 Md., at 432, 370 A.2d, at 1114-1115, citing Crescent Oil Co. v. Mississippi, 257 U.S. 129, 42 S.Ct. 42, 66 L.Ed. 166 (1921). In Crescent Oil the Court said that the operation of cotton gins was local manufacturing rather than interstate commerce. As explained at the beginning of Part I of this opinion, however, the interstate character of the retail gasoline market and 57 years of intervening constitutional and economic development prevent the application of Crescent Oil to the facts of this litigation. See nn. 3 and 4, and, accompanying text, supra.
C
51
Finally, nothing in the argument of the appellees saves the distinctions in §§ (b) and (c) from the taint of unconstitutionality. First, the State argues that discrimination against interstate commerce has not occurred because [n]o nexus between interstate as opposed to local interests inheres in the production or refining of petroleum." Brief for Appellees 23. Although this statement might be correct in the abstract, it is incorrect in reality, given the structure of the Maryland petroleum market. Due to geological formation as so far known, no petroleum is produced in Maryland; due to the economics of production and refining, as well as to the geology, no petroleum is refined in Maryland. As a matter of actual fact, then, an inherent nexus does exist between the out-of-state status f producers and refiners and the distribution and retailing of gasoline in Maryland. The Commerce Clause does not forbid only legislation that discriminates under all factual circumstances. It forbids discrimination in effect against interstate commerce on the specific facts of each case. If production or refining of gasoline occurred in Maryland, §§ (b) and (c) might not be unconstitutional. Under those different circumstances, however, the producers and refiners would have a fair opportunity to influence their local legislators and thereby to prevent the enactment of economically disruptive legislation. Under those circumstances, the economic disruption would be felt directly in Maryland, which would tend to make the local political processes responsive to the problems thereby created. Under those circumstances, §§ (b) and (c) might never have been passed. In this case however, the economic disruption of the sections is visited upon out-of-state economic interests and not upon in-state businesses. One of the basic assumptions of the Commerce Clause is that local political systems will tend to be unresponsive to problems not felt by local constituents; instead, local political units are expected to act in their constituents' interests.16 One of the basic purposes of the Clause, therefore, is to prevent the vindication of such self-interest from unfairly burdening out-of-state concerns and thereby disrupting the national economy.
52
Second, appellees argue, as did the Court of Appeals, that §§ (b) and (c) do not discriminate impermissibly because the Maryland Legislature passed them with the intent to preserve competition. As explained above, however, the mere assertion of a laudable purpose does not carry the State's burden to justify the discriminatory effects of the statute. See Parts I-B and II-B, supra.
53
Third, appellees rely upon the Court of Appeals' contention that unconstitutional discrimination against interstate commerce can be found only where the flow of interstate goods is curtailed. Appellees' assertion fares no better than did the court's because the appellees fail to show how the effect on the flow of interstate goods varies in kind between this case and Dean Milk. See Part II-B, supra.
III
54
The Court's decision brings to mind the well-known words of Mr. Justice Cardozo:
55
"To give entrance to [protectionism] would be to invite a speedy end of our national solidarity. The Constitution was framed under the dominion of a political philosophy less parochial in range. It was framed upon the theory that the peoples of the several states must sink or swim together, and that in the long run prosperity and salvation are in union and not division." Baldwin v. G. A. F. Seelig, Inc., 294 U.S. 511, 523, 55 S.Ct. 497, 500, 79 L.Ed. 1032 (1935).
56
Today, the Court fails to heed the Justice's admonition. The parochial political philosophy of the Maryland Legislature thereby prevails. I would reverse the judgment of the Maryland Court of Appeals.
1
The pertinent provisions of the statute are as follows:
"(b) After July 1, 1974, no producer or refiner of pet oleum products shall open a major brand, secondary brand or unbranded retail service station in the State of Maryland, and operate it with company personnel, a subsidiary company, commissioned agent, or under a contract with any person, firm, or corporation, managing a service station on a fee arrangement with the producer or refiner. The station must be operated by a retail service station dealer.
"(c) After July 1, 1975, no producer or refiner of petroleum products shall operate a major brand, secondary brand, or unbranded retail service station in the State of Maryland, with company personnel, a subsidiary company, commissioned agent, or under a contract with any person, firm, or corporation managing a service station on a fee arrangement with the producer or refiner. The station must be operated by a retail service station dealer.
"(d) Every producer, refiner, or wholesaler of petroleum products supplying gasoline and special fuels to retail service station dealers shall extend all voluntary allowances uniformly to all retail service station dealers supplied." Md.Ann.Code, Art. 56, § 157E (Supp.1977).
2
"Upon proof being made, at any hearing on a complaint under this section, that there has been discrimination in price or services or facilities furnished, the burden of rebutting the prima-facie case thus made by showing justification shall be upon the person charged with a violation of this section, and unless justification shall be affirmatively shown, the Commission is authorized to issue an order terminating the discrimination: Provided, however, That nothing herein contained shall prevent a seller rebutting the prima-facie case thus made by showing that his lower price or the furnishing of services or facilities to any purchaser or purchasers was made in good faith to meet an equally low price of a competitor, or the services or facilities furnished by a competitor." 15 U.S.C. § 13(b) (1976 ed.).
3
As used by the Court of Appeals and in this opinion, "company-operated station" refers to a retail service station operated directly by employees of a refiner or producer of petroleum products (or a subsidiary). 279 Md., at 419 n. 2, 370 A.2d, at 1108 n. 2.
4
For instance, Exxon has used its company-operated stations to introduce such marketing ideas as partial self-service, in-bay car-wash units, and motor-oil vending machines. App. 205-209.
5
Exxon presen ed nine arguments, both constitutional and statutory. It contended that the statute was arbitrary and irrational under the Due Process Clause; constituted an unconstitutional taking of property without just compensation; denied it, in two distinct ways, the equal protection of the laws; constituted an unlawful delegation of legislative authority; was unconstitutionally vague; discriminated against and burdened interstate commerce; and was pre-empted by the Robinson-Patman Act and the Federal Emergency Petroleum Allocation Act of 1973. Id., at 14-16.
6
These plaintiffs are Continental Oil Co. (and its subsidiary Kayo Oil Co.), Commonwealth Oil Refining Co. (and its subsidiary Petroleum Marketing Corp.), and Ashland Oil Co.
7
These plaintiffs are Phillips Petroleum Co., Shell Oil Co., and Gulf Oil Corp.
8
See 279 Md., at 445-446, 370 A.2d, at 1121-1122.
9
Id., at 418-420, 370 A.2d, at 1107-1108.
10
The Court of Appeals stated that the statute "would not in any way restrict the free flow of petroleum products into or out of the state." Id., at 431, 370 A.2d, at 1114. While the evidence in the record does not directly support this assertion, it is certainly a permissible inference to be drawn from the evidence, or lack thereof, presented by the appellants. See Reply B ief for Appellants in No. 77-64, p. 7.
11
See n. 5, supra.
12
Indeed, although the Circuit Court's decision rested primarily on the substantive due process claim, only appellants Continental Oil and its subsidiary, Kayo Oil, press that claim here.
13
It is worth noting that divestiture is by no means a novel method of economic regulation, and is found in both federal and state statutes. To date, the courts have had little difficulty sustaining such statutes against a substantive due process attack. See, e. g., Paramount Pictures, Inc. v. Langer, 23 F.Supp. 890 (ND 1938), dismissed as moot, 306 U.S. 619, 59 S.Ct. 641, 83 L.Ed. 1025; see generally Comment, Gasoline Marketing Practices and "Meeting Competition" under the Robinson-Patman Act, 37 Md.L.Rev. 323, 329 n. 44 (1977).
14
Brief for Appellants in No. 77-10, p. 27.
15
For instance, as of July 1, 1974, such interstate, nonrefining or nonproducing, companies as Sears, Roebuck & Co., Hudson Oil Co., and Pantry Pride operated retail gas stations in Maryland. App. 190-191. Hudson has, however, recently acquired a refinery. See Brief for Appellants in No. 77-10, p. 33 n. 17.
16
If the effect of a state regulation is to cause local goods to constitute a larger share, and goods with an out-of-state source to constitute a smaller share, of the total sales in the market—as in Hunt, 432 U.S., at 347, 97 S.Ct., at 2443 and Dean Milk, 340 U.S., at 354, 71 S.Ct., at 297—the regulation may have a discriminatory effect on interstate commerce. But the Maryland statute has no impact on the relative proportions of local and out-of-state goods sold in Maryland and, indeed, no demonstrable effect whatsoever on the interstate flow of goods. The sales by independent retailers are just as much a part of the flow of interstate commerce as the sales made by the refiner-operated stations.
17
Reply Brief for Appellants in No. 77-64, p. 7.
18
California, Delaware, the District of Columbia, and Florida have adopted laws restricting refiners' operation of service stations. Similar proposals have been before the legislatures of 32 other jurisdictions. See Brief for Appellants in No. 77-10, p. 45 nn. 21 and 22; Brief for the State of California as Amicus Curiae.
19
The Court of Appeals also noted that there is a third competitive situation—a discriminatory price reduction made to meet an equally low price offered to the same buyer by a competing seller. In the lower court's view, this situation clearly fell within the § 2(b) defense, but was not encompassed by the term "voluntary allowances." 279 Md., at 452, 370 A.2d, at 1125.
20
The Court left the question open in Sun Oil, 371 U.S., at 512, n. 7, 83 S.Ct., at 363 n. 7, and the lower courts have reached conflicting results. Compare Enterprise Industries v. Texas Co., 136 F.Supp. 420 (Conn.1955), rev'd on other grounds, 240 F.2d 457 (CA2 1957), cert. denied, 353 U.S. 965, 77 S.Ct. 1049, 1 L.Ed.2d 914, with Bargain Car Wash, Inc. v. Standard Oil Co. (Indiana), 466 F.2d 1163 (CA7 1972).
21
Appellants argue that compliance with the "voluntary allowance" provision may expose them to both primary-line and secondary-line liability under § 2(a) of the Clayton Act, as amended by the Robinson-Patman Act. With respect to primary-line liability, they pose the hypothesis of a seller who responds to a competitor's lower price in Baltimore. Under the statute, he must lower his prices throughout the State, even though the competitive market justifying that price is confined to Baltimore. Appellants then argue that a competitor operating only in Salisbury, Md., may be injured by this price reduction. But an injury flowing from a uniform price reduction is not actionable under the Robinson-Patman Act, which only prohibits price discrimin tion. See F. Rowe, Price Discrimination Under the Robinson-Patman Act 93 (1962).
22
Thus, appellants' claim that the statute will create secondary-line liability is premised on the possibility that price differentials may arise between stations located in Maryland and those in neighboring States. With respect to this claim, it is sufficient to note that, although the Maryland statute may affect the business decision of whether or not to reduce prices, it does not create any irreconcilable conflict with the Robinson-Patman Act. The statute may require that a voluntary allowance that could legally have been confined to the Baltimore area be extended to Salisbury. We may then assume, arguendo, that the Robinson-Patman Act could require a further extension of the allowance into the neighboring State. The possible scope of the voluntary allowance may, therefore, have an impact on the company's decision on whether or not to meet the competition in Baltimore, but the state statute does not in any way require discriminatory prices. See also n. 20, supra.
23
Section 2 of the original Clayton Act, 38 Stat. 730, established an absolute defense for a seller's reductions in price made "in good faith to meet competition . . . ." The legislative history of the Robinson-Patman Act shows that § 2(b) was intended to limit that broad defense. See Standard Oil Co. v. FTC, 340 U.S. 231, 247-249, n. 14, 71 S.Ct. 240, 248-249, n. 14, 95 L.Ed. 239.
24
In holding that § 2(b) created a substantive, rather than merely a procedural defense, the Court explained:
"The heart of our national economic policy long has been faith in the value of competition. In the Sherman and Clayton Acts, as well as in the Robinson-Patman Act, 'Congress was dealing with competition, which it sought to protect, and monopoly, which it sought to prevent.' Staley Mfg. Co. v. Federal Trade Comm'n, 135 F.2d 453, 455. We need not now reconcile, in its entirety, the economic theory which underlies the Robinson-Patman Act with that of the Sherman and Clayton Acts. It is enough to say that Congress did not seek by the Robinson-Patman Act either to abolish competition or so radically to curtail it that a seller would have no substantial right of self-defense against a price raid by a competitor." Standard Oil Co., supra, 340 U.S., at 248-249, 71 S.Ct., at 249 (footnote omitted).
25
Just as the political and economic stimulus for the Robinson-Patman Act was the perceived need to protect independent retail stores from "chain stores," see U.S. Department of Justice, Report on the Robinson-Patman Act 114-124 (1977), so too the Maryland statute was prompted by the perceived need to protect independent retail service station dealers from the vertically integrated oil companies. 279 Md., at 422, 370 A.2d, at 1109.
26
Indeed, many have argued that the Robinson-Patman Act is fundamentally anticompetitive and undermines the purposes of the Sherman Act. See generally U.S. Department of Justice Report, supra.
27
Brief for Appellants in No. 77-10, p. 80.
28
Appellants argue that Maryland has actually regulated beyond its boundaries, pointing to the possibility that they may have to extend voluntary allowances into neighboring States in order to avoid liability under the Robinson-Patman Act. See 21 and 22, supra. But this alleged extraterritorial effect arises from the Robinson-Patman Act, not the Maryland statute.
1
The presently challenged portions of the law were enacted four years ago and amended once since then. 1974 Md.Laws, ch. 854; 1975 Md.Laws, ch. 608. The statute is now codified as Md.Code Ann., Art. 56, § 157E (Supp.1977), and reads:
"(a) For the purpose of this law all gasoline and special fuels sold or offered or exposed for sale shall be subject to inspection and analysis as hereinafter provided. . . .
"(b) After July 1, 1974, no producer or refiner of petroleum products shall open a major brand, secondar brand or unbranded retail service station in the State of Maryland, and operate it with company personnel, a subsidiary company, commissioned agent, or under a contract with any person, firm, or corporation, managing a service station on a fee arrangement with the producer or refiner. The station must be operated by a retail service station dealer.
"(c) After July 1, 1975, no producer or refiner of petroleum products shall operate a major brand, secondary brand, or unbranded retail service station in the State of Maryland, with company personnel, a subsidiary company, commissioned agent, or under a contract with any person, firm, or corporation managing a service station on a fee arrangement with the producer or refiner. The station must be operated by a retail service station dealer.
"(d) Every producer, refiner or wholesaler of petroleum products supplying gasoline and special fuels to retail service station dealers shall extend all voluntary allowances uniformly to all retail service station dealers supplied.
"(e) Every producer, refiner, or wholesaler of petroleum products supplying gasoline and special fuels to retail service station dealers shall apply all equipment rentals uniformly to all retail service station dealers supplied.
"(f) Every producer, refiner, or wholesaler of petroleum products shall apportion uniformly all gasoline and special fuels to all retail service station dealers during periods of shortages on an equitable basis, and shall not discriminate among the dealers in their allotments."
2
U.S.Const., Art. I, § 8, cl. 3:
"The Congress shall have Power . . .
"To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes."
3
The inherent effect of local regulation of retail sales on interstate commerce is well illustrated by Dean Milk. The city of Madison forbade the sale of pasteurized milk unless pasteurization occurred at a plant located within five miles of the center of the city. General Ordinances of the City of Madison § 7.21 (1949). Even though only local sale was prohibited, the Court considered the ordinance to be a regulation of interstate commerce.
4
Cf. Best & Co. v. Maxwell, 311 U.S. 454, 61 S.Ct. 334, 85 L.Ed. 275 (1940) (holding that taxation of local retailing was within the reach of the Commerce Clause); United States v. Frankfort Distilleries, Inc., 324 U.S. 293, 65 S.Ct. 661, 89 L.Ed. 951 (1945) (holding that retailing was interstate commerce within the scope of the Sherman Act). See generally Note, Gasoline Marketing Divestiture Statutes: A Preliminary Constitutional and Economic Assessment, 28 Vand.L.Rev. 1277, 1303 (1975).
5
In 1974 Fisca Oil Co., Giant Food, Inc., Hi-Way Oil, Inc., Homes Oil Co., Hudson Oil Co., Midway Petroleum, National Oil Co., Pantry Pride, Savon Gas Stations, and Sears, Roebuck & Co. operated gasoline stations in Maryland. Because none of these organizations produced or refined petroleum at that time, the statute would not have restricted their operations. It should be noted, however, that the statute will reach any of thes firms deciding to integrate backwards from retailing to refining or producing. After this suit was filed, Hudson Oil Co. acquired a refinery and thus became another out-of-state business subject to the ban of §§ (b) and (c). App. 518-519.
6
The sections will force Ashland to divest 17 stations in which it has invested $2,381,385. Id., at 257, 258-259. Petroleum Marketing has 21 stations valued at $2,043,710. Id., at 656.
7
Another indication of the discrimination against out-of-state business was the amendment of the original legislative proposal to exempt wholesalers of gasoline from the divestiture requirements. The author of the proposal intended to ban retailing by wholesalers and "not to discriminate against one class as to another." Id., at 568. On cross-examination he was asked why the exemption was enacted. He replied:
"It was up to the General Assembly to make that decision. Apparently the wholesalers were represented at the testimony in the hearings. . . . I did hear at a later date that they wanted to be exempt from it because some of the wholesalers being local jobbers had no investment or financial activity or engagement with the producer-refiner so they wanted to plea upon the mercy of the committee so to speak . . . .
* * * * *
"Q. You have no information then as to why the Legislature of Maryland chose to make that discrimination? A. Not other than hearsay as to the general data that these men were local businessmen, had no definite tie in with the refinery . . . ." Id., at 568-569.
8
There is support in the record for the inference that the Maryland Legislature passed the divestiture provisions in response to the pleas of local
gasoline dealers for protection against the competition of both the price marketers and the major oil companies. For example, the executive director of the Greater Washington/Maryland Service Station Association, which represents almost 700 local Maryland dealers, testified before the Economic Matters Committee of the Maryland Senate:
"I would like to begin by telling you gentlemen that these are desperate days for service station dealers. . . .
* * * * *
"Now beset by the critical gasoline supply situation, the squeeze by his landlord-supplier and the shrinking service and tire, battery and accessory market, the dealer is now faced with an even more serious problem.
"That is the sinister threat of the major oil companies to complete their takeover of the retail-marketing of gasoline, not just to be in competition with their own branded dealers, but to squeeze them out and convert their stations to company operation.
* * * * *
"Our oil industry has grown beyond the borders of our country to where its American character has been replaced by a multinational one.
"Are the legislators of Maryland now about to let this octopus loose and unrestricted in the state of Maryland, among our small businessmen to devour them? We sincerely hope not.
"The men that you see here today are the back-bone of American small business. . . .
"We are here today asking you, our own legislators to protect us from an economic giant who would take away our very livelihood and our children's future in its greed for greater profits. Please give us the protection we need to save our stations." Id., at 755, 756, 761.
9
From the facts stipulated by the parties, the trial court found:
"Retail petroleum marketing in the State of Maryland is and has been a highly competitive industry. This is a result of the number and location of available facilities, the comparatively small capital costs for entering the business, the mobility of the purchaser at the time of purchasing the products, the relative interchangeability of one competitor's products with another in the mind of the consumer, the visibility of price information, and the many choices the consumer has in terms of prices, brands, and services offered." Joint App. to Jurisdictional Statements 99a.
The continuing competitive nature of the Maryland gasoline market provided one basis for the trial court's holding that the State had not "demonstrated a real and substantial relation to the object sought to be attained by the means selected[;] the evidence presented before it indicates that the statute is inversely related to the public welfare." Id., at 131a-132a. The trial court therefore considered the statute unconstitutional.
10
The trial court entered several findings about the integration of the oil companies and the need for divestiture:
"Apart from restraining free competition, it was shown that divestiture would be harmful to competition in the industry, and would primarily serve to protect the independent dealers rather han the public at large. There was no proven detrimental effect upon the retail market caused by company-owned-and-operated stations which could not be curbed by federal and state anti-trust laws.
* * * * *
"The court also finds from the preponderance of the evidence that the law will preclude all of some thirty-two producer-refiners not now in the State from ever entering the competitive market in Maryland, and vertical integration will be prohibited. Neither effect is in the public interest since competition is essentially for consumer benefit.
"Noteworthy also is the fact that the original draft of the law included wholesalers in the prohibition against retail selling. The final draft of the law eliminated wholesalers, for the sole reason, according to Mr. Coleman, that the wholesalers requested their elimination from the act. There is no evidence whatsoever relative to why wholesalers should have been included initially, nor how the general public benefited from their exemption.
"In all the more than one hundred eighty-five pounds of pleadings, motions, briefs, exhibits and depositions before this court, there is no concrete evidence that the act was justified as to the classes of operators singled out to be affected in order to promote the general welfare of the citizens of the State. Rather, it is apparent that the entire bill is designed to benefit one class of merchants to the detriment of another." Id., at Jurisdictional Statement 130a-131a (emphasis supplied).
11
This statute states:
"(g) Distributor may not unreasonably withhold certain consents . . . The distributor may not unreasonably withhold his consent to any assignment, transfer, sale, or renewal of a marketing agreement. . . ."
12
279 Md. 410, 370 A.2d 1102 and 372 A.2d 237 (1977). The trial court, the Circuit Court for Anne Arundel County, Md., did not address the question whether §§ (b) and (c) unconstitutionally discriminated against interstate commerce. It held that the statute of ended substantive due process, in violation of the Maryland Declaration of Rights, Art. 23.
13
The Court also notes that §§ (b) and (c) do not discriminate against interstate goods and do not favor local producers and refiners. While true, the observation is irrelevant because it does not address the discrimination inflicted upon retail marketing in the State. Cf. Part II-B, infra.
Footnote 16 of the Court's opinion, ante, at 126-127, suggests that unconstitutional discrimination does not exist unless there is an effect on the quantity of out-of-state goods entering a State. This is too narrow a view of the Commerce Clause. First, interstate commerce consists of far more than mere production of goods. It also consists of transactions—of repeated buying and selling of both goods and services. By focusing exclusively on the quantity of goods, the Court limits the protection of the Clause to producers and handlers of goods before they enter a discriminating State. In our complex national economy, commercial transactions continue after the goods enter a State. The Court today permits a State to impose protectionist discrimination upon these later transactions to the detriment of out-of-state participants. Second, the Court cites no case in which this Court has held that a burden on the flow of goods is a prerequisite to establishing a case of unconstitutional discrimination against interstate commerce. Neither Hunt nor Dean Milk contains such a holding. In both of those cases the Court upheld the claims of discrimination; in neither did it say that a burden on the wholesale flow of goods was a necessary part of its holding. Regarding Hunt,
the Court cites to 432 U.S., at 347, 97 S.Ct., at 2443, which discusses only whether the appellants had met the $10,000 amount-in-controversy requirement of 28 U.S.C. § 1331. As explained in Part II-B, infra, this case presents a threat to the flow of gasoline in Maryland identical to the threat to the flow of milk in Dean Milk.
14
Growers from 13 States marketed apples in North Carolina. Six of the States did not have state grading systems apart from the USDA regulations. 432 U.S., at 349, 97 S.Ct., at 2444.
15
In fact, the disruption of the flow of gasoline in this case would be greater than the disruption of the flow of milk in Madison. The record supports the proposition that the ban on company operations may so unsettle the wholesale and refining enterprises of the independent price marketers that they will not be able profitably to supply gasoline to the stations of nonintegrated retailers in Maryland. App. 504-505, 509, 531.
16
Given the Nation's experience under the Articles of Confederation, the assumption is not an unreasonable one. At that time authority to regulate commerce rested with the States rather than with Congress. The pursuit by each State of the particular interests of its economy and constituents nearly wrecked the national economy. "The almost catastrophic results from this sort of situation were harmful commercial wars and reprisals at home among the States . . . ." P. Hartman, State Taxation of Interstate Commerce 2 (1953), citing, e. g., The Federalist, Nos. 7, 11, 22 (Hamilton), No. 42 (Madison).
| 78
|
437 U.S. 28
98 S.Ct. 2156
57 L.Ed.2d 24
Roger CRIST, as Warden of the Montana State Penitentiary, Deer Lodge, Montana, et al., Appellants,v.L. R. BRETZ et al.
No. 76-1200.
Argued Nov. 1, 1977.
Decided June 14, 1978.
Syllabus
The federal rule that jeopardy attaches in a jury trial when the jury is empaneled and sworn, a rule that reflects and protects the defendant's interest in retaining a chosen jury, is an integral part of the Fifth Amendment guarantee against double jeopardy made applicable to the States by the Fourteenth Amendment. Hence, a Montana statute providing that jeopardy does not attach until the first witness is sworn cannot constitutionally be applied in a jury trial. Pp. 32-38.
546 F.2d 1336, affirmed.
Robert S. Keller, Kalispell, Mont., for appellants.
W. William Leaphart, Helena, Mont., for appellee Merrel Cline.
Charles F. Moses, Billings, Mont., for appellee L. R. Bretz.
Kenneth S. Geller, Washington, D. C., for United States, amicus curiae.
Mr. Justice STEWART delivered the opinion of the Court.
1
This case involves an aspect of the constitutional guarantee against being twice put in jeopardy. The precise issue is whether the federal rule governing the time when jeopardy attaches in a jury trial is binding on Montana through the Fourteenth Amendment. The federal rule is that jeopardy attaches when the jury is empaneled and sworn; a Montana statute provides that jeopardy does not attach until the first witness is sworn.1
2
* The appellees, Merrel Cline2 and L. R. Bretz, were brought to trial in a Montana court on charges of grand larceny, obtaining money and property by false pretenses, and several counts of preparing or offering false evidence. A jury was empaneled and sworn following a three-day selection process. Before the first witness was sworn, however, the appellees filed a motion drawing attention to the allegation in the false-pretenses charge that the defendants' illegal conduct began on January 13, 1974.3 Effective January 1, 1974, the particular statute relied on in that count of the information, Mont.Rev.Codes Ann. § 94-1805 (1947), had been repealed. The prosecutor moved to amend the information, claiming that "1974" was a typographical error, and that the date on which the defendants' alleged violation of the statute had commenced was actually January 13, 1973, the same date alleged in the grand larceny count. The trial judge denied the prosecutor's motion to amend the information and dismissed the false-pretenses count. The State promptly but unsuccessfully asked the Montana Supreme Court for a writ of supervisory control ordering the trial judge to allow the amendment.
3
Returning to the trial court, the prosecution then asked the trial judge to dismiss the entire information so that a new one could be filed. That motion was granted, and the jury was dismissed. A new information was then filed, charging the appellees with grand larceny and obtaining money and property by false pretenses. Both charges were based on conduct commencing January 13, 1973. Other than the change in dates, the new false-pretenses charge described essentially the same offense charged in the earlier defective count.
4
After a second jury had been selected and sworn, the appellees moved to dismiss the new information, claiming that the Double Jeopardy Clauses of the United States and Montana Constitutions barred a second prosecution. The motion was denied, and the trial began. The appellees were found guilty on the false-pretenses count, and sentenced to terms of imprisonment. The Montana Supreme Court, which had previously denied appellees habeas corpus relief, State ex rel. Bretz v. Sheriff, 167 Mont. 363, 539 P.2d 1191, affirmed the judgment as to Bretz on the ground that under state law jeopardy had not attached in the first trial. State v. Cline, Mont., 555 P.2d 724.
5
In the meantime, the appellees had brought a habeas corpus proceeding in a Federal District Court, again alleging that their convictions had been unconstitutionally obtained because the second trial violated the Fifth and Fourteenth Amendments guarantee against double jeopardy. The federal court denied the petition, holding that the Montana statute providing that jeopardy does not attach until the first witness is sworn does not violate the United States Constitution. The court held in the alternative that even if jeopardy had attached, a second prosecution was justified, as manifest necessity supported the first dismissal. Cunningham v. District Court, 406 F.Supp. 430 (Mont.).4
6
The Court of Appeals for the Ninth Circuit reversed. 546 F.2d 1336. It held that the federal rule governing the time when jeopardy attaches is an integral part of the constitutional guarantee, and thus is binding upon the States under the Fourteenth Amendment. The appellate court further held that there had been no manifest necessity for the Montana trial judge's dismissal of the defective c unt, and, accordingly, that a second prosecution was not constitutionally permissible.5
7
Appellants appealed pursuant to 28 U.S.C. § 1254(2), seeking review only of the holding of the Court of Appeals that Montana is constitutionally required to recognize that, for purposes of the constitutional guarantee against double jeopardy, jeopardy attaches in a criminal trial when the jury is empaneled and sworn. We postponed consideration of probable jurisdiction sub nom. Crist v. Cline, 430 U.S. 982, 98 S.Ct. 1676, 52 L.Ed.2d 376, and the case was argued. Thereafter the case was set for reargument, 434 U.S. 980, 98 S.Ct. 603, 54 L.Ed.2d 475, and the parties were asked to address the following two questions:
8
"1. Is the rule heretofore applied in the federal courts that jeopardy attaches in jury trials when the jury is sworn constitutionally mandated?
9
"2. Should this Court hold that the Constitution does not require jeopardy to attach in any trial—state or federal, jury or nonjury—until the first witness is sworn?"
II
A.
10
The unstated premise of the questions posed on reargument is that if the rule "that jeopardy attaches in jury trials when the jury is sworn" is "constitutionally mandated," then that rule is binding on Montana, since "the double jeopardy prohibition of the Fifth Amendment . . . [applies] to the States through the Fourteenth Amendment," and "the same constitutional standards" must apply equally in federal and state courts. Benton v. Maryland, 395 U.S. 784, 794-795, 89 S.Ct. 2056, 2062, 23 L.Ed.2d 707. The single dispositive question, therefore, is whether the federal rule is an integral part of the constitutional guarantee.
11
The Double Jeopardy Clause of the Fifth Amendment is stated in brief compass: "[N]or shall any person be subject for the same offence to be twice put in jeopardy of life or limb." But this deceptively plain language has given rise to problems both subtle and complex, problems illustrated by no less than eight cases argued here this very Term.6 This case, however, presents a single straightforward issue concerning the point during a jury trial when a defendant is deemed to have been put in jeopardy, for only if that point has once been reached does any subsequent prosecution of the defendant bring the guarantee against double jeopardy even potentially into play. Serfass v. United States, 420 U.S. 377, 388, 95 S.Ct. 1055, 1062, 43 L.Ed.2d 265; Illinois v. Somerville, 410 U.S. 458, 467, 93 S.Ct. 1066, 1072, 35 L.Ed.2d 425.
12
The Fifth Amendment guarantee against double jeopardy derived from English common law, which followed then, as it does now,7 the relatively simple rule that a defendant has but put in jeopardy only when there has been a conviction or an acquittal—after a complete trial.8 A primary purpose served by such a rule is akin to that served by the doctrines of res judicata and collateral estoppel—to preserve the finality of judgments.9 And it is clear that in the early years of our national history the constitutional guarantee against double jeopardy was considered to be equally limited in scope. As Mr. Justice Story explained:
13
"[The Double Jeopardy Clause] does not mean, that [a person] shall not be tried for the offence a second time, if the jury shall have been discharged without giving any verdict; . . . for, in such a case, his life or limb cannot judicially be said to have been put in jeopardy." 3 J. Story, Commentaries on the Constitution § 1781, pp. 659-660 (1833).
14
But this constitutional understanding was not destined to endure. Beginning with this Court's decision in United iStates v. Perez, 9 Wheat. 579, 6 L.Ed. 165, it became firmly established by the end of the 19th century that a defendant could be put in jeopardy even in a prosecution that did not culminate in a conviction or an acquittal, and this concept has been long established as an integral part of double jeopardy jurisprudence. 10 Thus in Wade v. Hunter, 336 U.S. 684, 688, 69 S.Ct. 834, 837, 93 L.Ed. 974, the Court was able accurately to say: "Past cases have decided that a defendant, put to trial before a jury, may be subjected to the kind of 'jeopardy' that bars a second trial for the same offense even though his trial is discontinued without a verdict." See also, e. g., Arizona v. Washington, 434 U.S. 497, 98 S.Ct. 824, 54 L.Ed.2d 717.
15
The basic reason for holding that a defendant is put in jeopardy even though the criminal proceeding against him terminates before verdict was perhaps best stated in Green v. United States, 355 U.S. 184, 187-188, 78 S.Ct. 221, 223, 2 L.Ed.2d 199:
16
"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 insecurity, as well as enhancing the possibility that even though innocent he may be found guilty."
17
Although it has thus long been established that jeopardy may attach in a criminal trial that ends inconclusively, the precise point at which jeopardy does attach in a jury trial might have been open to argument before this Court's decision in Downum v. United States, 372 U.S. 734, 83 S.Ct. 1033, 10 L.Ed.2d 100.11 There the Court held that the Double Jeopardy Clause prevented a second prosecution of a defendant whose first trial had ended just after the jury had been sworn and before any testimony had been taken. The Court thus necessarily pinpointed the stage in a jury trial when jeopardy attaches, and the Downum case has since been understood as explicit authority for the proposition that jeopardy attaches when the jury is empaneled and sworn. See United States v. Martin Linen Supply Co., 430 U.S. 564, 569, 97 S.Ct. 1349, 1353, 51 L.Ed.2d 642; Serfass v. United States, 420 U.S., at 388, 95 S.Ct. 1055, 1062, 43 L.Ed.2d 265.
18
The reason for holding that jeopardy attaches when the jury is empaneled and sworn lies in the need to protect the interest of an accused in retaining a chosen jury. That interest was described in Wade v. Hunter, supra, as a defendant's "valued right to have his trial completed by a particular tribunal." 336 U.S. at 689, 69 S.Ct. at 837. It is an interest with roots deep in the historic development of trial by jury in the Anglo-American system of criminal justice.12 Throughout that history there ran a strong tradition that once banded together a jury should not be discharged until it had completed its solemn task of announcing a verdict.13
19
Regardless of its historic origin, however, the defendant's "valued right to have his trial completed by a particular tribunal" is now within the protection of the constitutional guarantee against double jeopardy, since it is that "right" that lies at the foundation of the federal rule that jeopardy attaches when the jury is empaneled and sworn. United States v. Martin Linen Supply Co., supra; Serfass v. United States, supra, 420 U.S. 377, at 388, 95 S.Ct. 1055, at 1062, 43 L.Ed.2d 265; Illinois v. Somerville, 410 U.S., at 467, 93 S.Ct., at 1072, 35 L.Ed.2d 425; United States v. Jorn, 400 U.S. 470, 478-480, 484-485, 91 S.Ct. 547, 553-554, 556-557, 27 L.Ed.2d 543 (plurality opinion).
B
20
It follows that Montana's view as to when jeopardy attaches is impermissible under the Fourteenth Amendment unless it can be said that the federal rule is not "at the core" of the Double Jeopardy Clause. See Pointer v. Texas, 380 U.S. 400, 406, 85 S.Ct. 1065, 1069, 13 L.Ed.2d 923; Malloy v. Hogan, 378 U.S. 1, 11, 84 S.Ct. 1489, 1495, 12 L.Ed.2d 653; Ker v. California, 374 U.S. 23, 33, 83 S.Ct. 1623, 1629, 10 L.Ed.2d 726. In asking us to hold that it is not, appellants argue that the federal standard is no more than an arbitrarily chosen rule of convenience,14 similar in its lack of constitutional status to the federal requirement of a unanimous verdict by 12 jurors, which has been held not to bind the States. Apodaca v. Oregon, 406 U.S. 404, 92 S.Ct. 1628, 32 L.Ed.2d 184; Williams v. Florida, 399 U.S. 78, 90 S.Ct. 1893, 26 L.Ed.2d 446. But see Ballew v. Georgia, 435 U.S. 223, 98 S.Ct. 1029, 55 L.Ed.2d 234.
21
If the rule that jeopardy attaches when the jury is sworn were simply an arbitrary exercise of line drawing, this argument might well be persuasive, and it might reasonably be concluded that jeopardy does not constitutionally attach until the first witness is sworn, to provide consistency in jury and nonjury trials.15 Indeed, it might then be concluded that the point of the attachment of jeopardy could be moved a few steps forward or backward without constitutional significance.16
22
But the federal rule as to when jeopardy attaches in a jury trial is not only a settled part of federal constitutional law. It is a rule that both reflects and protects the defendant's interest in retaining a chosen jury. We cannot hold that this rule, so grounded, is only at the periphery of double jeopardy concerns. Those concerns—the finality of judgments, the minimization of harassing exposure to the harrowing experience of a criminal trial, and the valued right to continue with the chosen jury—have combined to produce the federal law that in a jury trial jeopardy attached when the jury is empaneled and sworn.
23
We agree with the Court of Appeals that the time when jeopardy attaches in a jury trial "serves as the lynchpin for all double jeopardy jurisprudence." 546 F.2d, at 1343. In Illinois v. Somerville, supra, 410 U.S. 458, at 467, 93 S.Ct. 1066, 1072, 35 L.Ed.2d 425, a case involving the application of the Double Jeopardy Clause through the Fourteenth Amendment, the Court said that "jeopardy 'attached' when the first jury was selected and sworn." Today we explicitly hold what Somerville assumed: The federal rule that jeopardy attaches when the jury is empaneled and sworn is an integral part of the constitutional guarantee against double jeopardy. The judgment is
24
Affirmed.
25
Mr. Justice BLACKMUN, concurring.
26
Although I join the Court's opinion, I write to emphasize the fact that I am not content to rest the result, as the Court seems to be, ante, at 36, solely on the defendant's "valued right to have his trial completed by a particular tribunal," a factor mentioned by Mr. Justice Black, speaking for the Court, in Wade v. Hunter, 336 U.S. 684, 689, 69 S.Ct. 834, 837, 93 L.Ed. 974 (1949). That approach would also support a conclusion that jeopardy attaches at the very beginning of the jury selection process. See Schulhofer, Jeopardy and Mistrials, 125 U.Pa.L.Rev. 449, 512-514 (1977).
27
Other interests are involved here as well: repetitive stress and anxiety upon the defendant; continuing embarrassment for him; and the possibility of prosecutorial overreaching in the opening statement.
28
It is perhaps true that each of these interests could be used, too, to support an argument that jeopardy attaches at some point before the jury is sworn. I would bring all these interests into focus, however, at the point where the jury is sworn because it is then and there that the defendant's interest in the jury reaches its highest plateau, because the opportunity for prosecutorial overreaching thereafter increases substantially, and because stress and possible embarrassment for the defendant from then on is sustained.
29
Mr. Chief Justice BURGER, dissenting.
30
As a "rulemaking" matter, the result reached by the Court is a reasonable one; it is the Court's decision to constitutionalize the rule that jeopardy attaches at the point when the jury is sworn—so as to bind the States—that I reject. This is but another example of how constitutional guarantees are trivialized by the insistence on mechanical uniformity between state and federal practice. There is, of course, no reason why the state and federal rules must be the same. In the period between the swearing of the jury and the swearing of the first witness, the concerns underlying the constitutional guarantee against double jeopardy are simply not threatened in any meaningful sense even on the least sanguine of assumptions about prosecutorial behavior. We should be cautious about constitutionalizing every procedural device found useful in federal courts, thereby foreclosing the States from experimentation with different approaches which are equally compatible with constitutional principles. All things "good" or "desirable" are not mandated by the Constitution. States should remain free to have procedures attuned to the special problems of the criminal justice system at the state and local levels. Principles of federalism should not so readily be compromised for the sake of a uniformity finding sustenance perhaps in considerations of convenience but certainly not in the Constitution. Countless times in the past 50 years this Court has extolled the virtues of allowing the States to serve as "laboratories" to experiment with procedures which differ from those followed in the federal courts. Yet we continue to press the States into a procrustean federal mold. The Court's holding will produce no great mischief, but it continues, I repeat, the business of trivializing the Constitution on matters better left to the States.
31
Accordingly, I join Mr. Justice POWELL'S dissent.
32
Mr. Justice POWELL, with whom THE CHIEF JUSTICE and Mr. Justice REHNQUIST join, dissenting.
33
The rule that jeopardy attaches in a jury trial at the moment the jury is sworn is not mandated by the Constitution. It is the product of historical accident, embodied in a Court decision without the slightest consideration of the policies it purports to serve. Because these policies would be served equally well by a rule fixing the attachment of jeopardy at the swearing of the first witness, I would uphold the Montana statute. Even if one assumed that the Fifth Amendment now requires the attachment of jeopardy at the swearing of the jury, I would view that rule as incidental to the purpose of the Double Jeopardy Clause and hence not incorporated through the Due Process Clause of the Fourteenth Amendment and not applicable to the States. I therefore dissent.
34
* As the Court correctly observes, ante, at 33, it is clear that in the early years of our national history the constitutional guarantee against double jeopardy was restricted to cases in which there had been a complete trial—culminating in acquittal or conviction. The limited debate on the Double Jeopardy Clause in the House of Representatives confirms this proposition. 1 Annals of Cong. 753 (1789). See generally United States v. Wilson, 420 U.S. 332, 339-342, 95 S.Ct. 1013, 1019-1021, 43 L.Ed.2d 232 (1975). This was consonant with the prevailing English practice regarding pleas in bar. The pleas of autrefois acquit and autrefois convict, which implemented the maxim, repeated by Blackstone, that no man should twice be placed in jeopardy for the same offense,1 could be interposed only on the basis of an actual verdict of acquittal or conviction.2 It was to these pleas in bar—which embody a res judicata policy, as the Court describes it,ante, at 33 that the Double Jeopardy Clause was directed. See, e. g., United States v. Haskell, 26 Fed.Cas. 207, 212 (No. 15,321)(CC Pa. 1823)(Washington, J.); People v. Goodwin, 18 Johns. 187, 205 (N.Y.Sup.Ct.1820); cf. People v. Olcott, 2 Johns.Cas. 301 (N.Y.Sup.Ct.1801) (Kent, J.). This remains the English rule. See n. 2, supra.
35
But there existed a separate rule of English practice that has become intertwined with the doctrine of pleas in bar in the development of our Double Jeopardy Clause. This was the rule based upon a dictum of Lord Coke, that once the "[j]ury is retorned and sworn, their verdict must be heard, and they cannot be discharged . . . ." 3 E. Coke, Institutes 110 (6th ed. 1681); accord, 1 id., at 227(b). That this rule arose as an aspect of jury practice, rather than as an element of the guarantee against double jeopardy, is supported by several facts. First, it applied in civil cases as well as criminal. Kirk, "Jeopardy" During the Period of the Year Books, 82 U.Pa.L.Rev. 602, 609 (1934). Second, the early cases and treaties laid down no clear standard as to the effect of a failure to follow the rule. See, e. g., C. St. Germain Doctor and Student 1531, Dialogue 2, ch. 52 (1970). Third, it seems never to have been pleaded successfully in bar of a second prosecution in the period of the Yearbooks, when the rule is said to have arisen. Kirk, supra, at 611. Fourth, Blackstone dealt with the rule governing the discharge of the jury not in his section on pleas in bar, but in his discussion dealing with verdicts. Compare 4 W. Blackstone, Commentaries * 335-* 338, with id., at * 360.3 Hence, it is reasonably clear that the rule forbidding discharge of the jury arose out of the circumstances of medieval England, "when jurors of the counties where the facts occurred were summoned to give testimony at Westminster on a trial based on those facts. It seems not to have been an invariable rule and has never been found to have had any connection, in the cases at English common law, with the problem of two trials for the same offense." Kirk, supra, at 612 (footnote omitted).
36
Notwithstanding its origin as an aspect of jury practice, the rule against discharge of the jury became a useful defense against Crown oppression in the 17th century. Reaction to the "tyrannical practice," The Queen v. Charlesworth, 1 B. & S. 460, 500, 121 Eng.Rep. 786, 801 (Q.B.1861), of discharging juries and permitting reindictment when acquittal appeared likely4 was so strong that the common-law judges declared "that in all capital cases, a juror cannot be withdrawn, though the parties consent to it; that in criminal cases, not capital, a juror may be withdrawn, if both parties consent, but not otherwise . . . ." The King v. Perkins, Holt. 403, 90 Eng.Rep. 1122 (K.B.1698). Whether or not this strict rule was ever stringently applied, it was modified soon after it was announced. The King v. Kinloch, Fost. 16, 168 Eng.Rep. 9 (K.B.1746). In any event, it seems never to have furnished the basis for a plea of autrefois acquit. Rather, it was viewed as a matter committed to the discretion of the trial judge, from which no writ of error would lie nor any plea in bar of a future prosecution would be allowed. The Queen v. Winsor, 10 Cox C.C. 276, 313-323, 325-326 (Q.B.1865); The Queen v. Charlesworth, supra, at 507-515, 121 Eng.Rep., at 803-806.5 Thus, while the English judges had adapted Lord Coke's rule to the protection of interests later recognized in this country as within the sphere of the Double Jeopardy Clause, compare The Queen v. Winsor, supra, at 301-302, with United States v. Green, 355 U.S. 184, 187-188, 78 S.Ct. 221, 223-224, 2 L.Ed.2d 199 (1957), they refused to import the rule into the realm of pleas in bar, and it was the latter which informed the framing of the Double Jeopardy Clause.
37
But it was the common-law rule of jury practice—a rule that we well might have come to regard as an aspect of due process if it had not been absorbed in this country by the Double Jeopardy Clause—with which this Court concerned itself in United States v. Perez, 9 Wheat. 579, 6 L.Ed. 165 (1824). Sitting on the Perez Court was Mr. Justice Washington, who one year earlier had written that "the jeopardy spoken of in [the Fifth Amendment] can be interpreted to mean nothing short of the acquittal or conviction of the prisoner, and the judgment of the court thereupon." United States v. Haskell, 26 Fed.Cas., at 212. Mr. Justice Story authored the opinion of the Court in Perez. Nine years later he would explain in his treatise on the Constitution that the meaning of the Double Jeopardy Clause is "that a party shall not be tried a second time for the same offence, after he has once been convicted, or acquitted of the offence charged, by the verdict of a jury, and judgment has passed thereon for or against him." 3 J. Story, Commentaries on the Constitution § 1781, p. 659 (1833).6 It seems most unlikely that either of these Members of the Perez Court thought that the decision was interpreting the Fifth Amendment when it declared that the discharge of a jury, before verdict, on grounds of "manifest necessity" was not a bar to a retrial.7 9 Wheat., at 580. As both Justices Washington and Story believed that the Double Jeopardy Clause embraced only actual acquittal and conviction, they must have viewed Perez as involving the independent rule barring needless discharges of the jury.8 The decisions of this Court throughout the 19th and early 20th centuries dealing with discharges of the jury are ambiguous, but can be read merely as reaffirming the principle of Perez that discharges before verdict may be justified by manifest necessity, without adding a Fifth Amendment gloss.9
38
Throughout the 19th century, however, many state courts began to blend the rule against needless discharges of juries into the guarantee against double jeopardy contained in the Federal and State Constitutions.10 It was recognized that the discharge rule provided significant protection against being twice vexed:
39
"The right of trial by jury is of but little value to the citizen in a criminal prosecution against him if [the guarantee against double jeopardy] can be violated and the accused left without remedy. If the judge can arbitrarily discharge and impanel juries until one is obtained that will render such a verdict as the state demands, or the attorney for the prosecution desires, and the only protection against such oppression is that a new trial may be ordered in the court trying him, or by the court of last resort, then of what value is this boasted right?" O'Brian v. Commonwealth, 72 Ky. 333, 339 (1873).
40
Cf. Green v. United States, 355 U.S., at 187-188, 78 S.Ct. 221, 223-224, 2 L.Ed.2d 199. Thus, the state courts were putting Lord Coke's rule to a use similar to that of the 17th-century English judges, but they did so—with no apparent awareness of the novelty of their action—under the rubric of the Double Jeopardy Clause. Given this rather unreflective incorporation of a common-law rule of jury practice into the guarantee against double jeopardy, it is not surprising that the state courts also generally fixed the attachment of jeopardy at the swearing of the jury.11 Because the state courts do not appear to have been aware that they were adapting a separate rule to a different area of individual rights, they perceived no need to examine all the trappings of the rule in light of the new uses to which it was being put.12
41
It was after more than a century of development in state courts that the "defendant's valued right to have his trial completed by a particular tribunal" appeared in the decisions of this Court for the first time, also without analysis, as an element of the Double Jeopardy Clause. Wade v. Hunter, 336 U.S. 684, 689, 69 S.Ct., at 837 (1949). The policies underlying this "valued right" were not spelled out in Wade,13 but the rationale expressed inGreen v. United States, supra, 335 U.S., at 187-188, 78 S.Ct., at 223—a case not involving midtrial discharge of the jury—appears to echo the state courts of a century earlier:
42
". . . [T]he 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 possibility that even though innocent he may be found guilty."
43
Although neither Wade nor Green confronted the question of when jeopardy attached, the Green Court declared that "[t]his Court, as well as most others, has taken the position that a defendant is placed in jeopardy once he is put to trial before a jury so that if the jury is discharged without his consent he cannot be tried again." 355 U.S., at 188, 78 S.Ct., at 224.
44
Having accepted almost without articulated thought the doctrine that the Double Jeopardy Clause protects against needless discharge of the jury, this Court proceeded to adopt with a similar lack of reason or analysis the implementing rule that jeopardy attaches when the jury is sworn. In Downum v. United States, 372 U.S. 734, 83 S.Ct. 1033, 10 L.Ed.2d 100 (1963), the trial court declared a mistrial after the jury had been sworn but before any witnesses had been called. Finding an absence of "imperious necessity," id., at 736, 83 S.Ct., at 1034, the Court held that the Fifth Amendment barred reprosecution. The Downum opinion contains no discussion of the point of jeopardy's attachment or of the policies underlying the selection of the swearing of the jury as the determinative moment.14 Nevertheless, the swearing of the jury has been accepted since Downum as the constitutional line of demarcation for the attachment of jeopardy, see, e. g., Illinois v. Somerville, 410 U.S. 458, 466, 93 S.Ct. 1066, 1071, 35 L.Ed.2d 425 (1973); United States v. Sisson, 399 U.S. 267, 305, 90 S.Ct. 2117, 2137, 26 L.Ed.2d 608 (1970), even though no case before this Court has presented a contest over that issue.15
45
This Court, following the lead of the state courts, simply enlisted the doctrine concerning needless discharge of juries in the service of double jeopardy principles, largely without analysis and apparently with little awareness of history. In view, however, of the consistency with which federal courts have assumed without question that the swearing of the jury triggers jeopardy, I would accept this as the established supervisory rule within the federal system. But the acceptance of a supervisory rule, primarily on grounds of long tenure and convenience, is no justification for elevating it to constitutional doctrine. We should be hesitan to constitutionalize a rule that derives no support from the Framers' understanding of the English practice from which the Double Jeopardy Clause was derived, and which is supported by no doctrinal reasoning that reaches constitutional dimension. Restraint is doubly indicated with respect to this rule since it is applied only in jury trials. Where a criminal case is tried to the court, jeopardy does not attach until "the court begins to hear evidence." Serfass v. United States, 420 U.S. 377, 388, 95 S.Ct. 1055, 1062, 43 L.Ed.2d 265 (1975). No compelling reason has been suggested today, or in earlier decisions of this Court, why the time when jeopardy attaches should be different depending upon whether the defendant's "valued right" is asserted in a jury trial rather than a bench trial.
46
I turn next to an examination of the jury trial rule in light of the double jeopardy policies it is now belatedly thought to advance.
II
47
Three aspects of criminal process ordinarily precede the initial introduction of evidence in a jury trial: motions, jury selection, and opening statements. Defendants are vitally interested in each, yet it is far from clear that any should trigger the attachment of jeopardy.
48
Defendants may, and sometimes must, see, e. g., Fed.Rule Crim.Proc. 12, move for various rulings on the indictment and the admissibility of evidence before trial. These motions, in practical terms, may decide the defendant's case. They sometimes may require a devotion of time, energies, and resources exceeding that necessary for the trial itself. Yet it has never been held that jeopardy attaches as of the making or deciding of pretrial motions. See Serfass v. United States, supra. Appellee does not contend otherwise. It is clear, then, that the central concern of the Double Jeopardy Clause cannot be regarded solely as protecting against repeated expenditures of the defendant's efforts and resources.
49
Opening statements may be made in both bench and jury trials.16 In either type of trial, statements by counsel or questions by the court may prompt the prosecutor to abort—by dismissing the indictment or otherwise—the proceedings with the view to reindicting the defendant and commencing anew. The prosecutor also may simply request a continuance to gain time to meet some unexpected defense stratagem, although such a motion rarely would prevail. In any event, delay or postponement occasioned during or as a result of the opening-statement phase of a trial would be equally adverse to the defendant without regard to whether he were being tried by the court or a jury. The Due Process Clause would protect such a defendant in either case against prosecutorial abuse. Thus, with respect to the opening-statement phase of a criminal trial, there appears to be no difference of substance between jury and bench trials in terms of serving double jeopardy policies.
50
The situation does differ in some respects where a jury is selected, and the defendant—by voir dire and challenges participates in the selection of the factfinder. It is not unusual for this process to entail a major effort and extend over a protracted period. But, as in the case of pretrial motions, expenditure of effort alone is not sufficient to trigger the attachment of jeopardy.17 The federal rule of attachment in jury trials offers no basis for a double jeopardy claim if the prosecutor—dissatisfied by the jury selection process—is successful in dismissing the prosecution before the last juror is seated, or indeed before the whole panel is sworn. A defendant's protection against denial or abuse of his rights in this respect lies in the Due Process Clause.
51
Moreover, the Double Jeopardy Clause cannot be viewed as a guarantee of the defendant's claim to a factfinder perceived as favorably inclined toward his cause. That interest does not bar pretrial reassignment of his case from one judge to another, even though he may have waived jury trial on the belief that the original judge viewed his case favorably. Thus, the Double Jeopardy Clause interest in having his "trial completed by a particular tribunal," Wade v. Hunter, 336 U.S., at 689, 69 S.Ct., at 837 must refer to some interest other than retaining a factfinder thought to be disposed favorably toward defendant.
52
The one event that can distinguish one factfinder from another in the eyes of the law in general, and the Double Jeopardy Clause in particular, is the beginning of the factfinder's work. As the Court stated in Green, "a defendant is placed in jeopardy once he is put to trial before" a factfinder. 355 U.S., at 188, 78 S.Ct., at 224 (emphasis added). When the Court or jury has undertaken its constitutional duty—the hearing of evidence—the trial quite clearly is under way, and the prosecution's case has begun to unfold before the trier of fact. Cf. United States v. Scott, 437 U.S. 82, at 95, 98 S.Ct. 2187, at 2196, 57 L.Ed. 65. As testimony commences, the evidence of the alleged criminal conduct is presented to the factfinder and becomes a matter of public record. The on, retrial will mean repeating painful and embarrassing testimony, together with the possibility that the earlier "trial run" will strengthen the prosecution's case. At a retrial, for example, prosecution witnesses may be better prepared for the rigors of cross-examination. Thus, the defendant has a strong interest in taking his case to the first jury, once witnesses testify. Carsey v. United States, 129 U.S.App.D.C. 205, 208-209, 392 F.2d 810, 813-814 (1967) (Leventhal, J., concurring). The rationale of the Double Jeopardy Clause is implicated once this threshold is crossed, but not before.
53
That this is the crucial time for Double Jeopardy Clause purposes is evident from the attachment rule in bench trials. Once the judge has embarked upon his factfinding mission, the defendant is justified in concluding that his ordeal has begun; he is in the hands of his judge and may expect the matter to proceed to a finish. This same principle should apply in jury trials.
54
Thus, Montana's rule fixing the attachment of jeopardy at the swearing of the first witness is consonant with the central concerns of the Double Jeopardy Clause. It furnishes a clear line of demarcation for the attachment of jeopardy, and it places that line in advance of the point at which real jeopardy—in Fifth Amendment terms—can be said to begin.
III
55
Even if I were to conclude that the Fifth Amendment—merely by virtue of long, unreasoned acceptance—required attachment of jeopardy at the swearing of the jury, I would not hold that the Fourteenth Amendment necessarily imposes that requirement upon the States. This issue would turn on the answer to the question whether jeopardy's attachment at that point is fundamental to the guarantees of the Double Jeopardy Clause. Apodaca v. Oregon, 406 U.S. 404, 373, 92 S.Ct. 1628, 1634, 1635, 1639, 32 L.Ed.2d 184 (1972) (Powell, J., concurring in judgment); Ludwig v. Massachusetts, 427 U.S. 618, 632, 96 S.Ct. 2781, 2788, 49 L.Ed.2d 732 (1976) (Powell, J., concurring). As the previous discussion makes clear, the jury trial rule accorded constitutional status by the Court today implicates no rights that have been identified as fundamental in a constitutional sense. There is no basis for incorporating t "jot-for-jot" into the Fourteenth Amendment. See Duncan v. Louisiana, 391 U.S. 145, 181, 88 S.Ct. 1444, 1465, 20 L.Ed.2d 491 (1968) (Harlan, J., dissenting).
IV
56
Aside from paying cryptic homage to the hitherto unexplained "valued right" to a particular jury, the Court does not even attempt to justify its holding that the Fifth Amendment mandates the rule of attachment that it adopts. It identifies no policy of the Double Jeopardy Clause, and no interests of a fair system of criminal justice, that elevate this "right" to constitutional status. The Court's rule is not even a "line-drawing" that finds support in logic or significant convenience.
57
I perceive no reason for this Court to impose what, in effect, is no more than a supervisory rule of practice upon the courts of every State in the Union.
1
Montana Rev.Codes Ann. § 95-1711(3) (1947) provides in pertinent part:
"[A] prosecution based upon the same transaction as a former prosecution is barred by such former prosecution under the following circumstances: . . . (d) The former prosecution was improperly terminated. Except as provided in this subsection, there is an improper termination of a prosecution if the termination is for reasons not amounting to an acquittal, and it takes place after the first witness is sworn but before verdict. . . ."
See also State v. Cunningham, 166 Mont. 530, 535-536, 535 P.2d 186, 189. In addition to Montana, Arizona also holds that jeopardy does not attach until "proceedings commence," although this may be as early as the opening statement. Klinefelter v. Superior Court, 108 Ariz. 494, 495, 502 P.2d 531, 532; State v. Mojarro Padilla, 107 Ariz. 134, 139-140, 483 P.2d 549, 553. Until recently, New York had a similar rule. See Mizell v. Attorney General, 442 F.Supp. 868 (E.D.N.Y.).
2
We were informed during argument that the conviction of Merrel Cline has been reversed, see State v. Cline, 170 Mont. 520, 555 P.2d 724, and the charges against him dismissed. This appeal, therefore, has become moot as to him.
3
The motion asked that the prosecution's evidence be limited to the time period alleged in the information.
4
The Cunningham case, involving the same issue, was consolidated with the appellees' case.
5
In this Court the appellants specifically waived any challenge to the Court of Appeals' ruling on manifest necessity, and we intimate no view as to its correctness.
6
In addition to the present case, see Arizona v. Washington, 434 U.S. 497, 98 S.Ct. 824, 54 L.Ed.2d 717; United States v. Wheeler, 435 U.S. 313, 98 S.Ct. 1079, 55 L.Ed.2d 303; Burks v. United States, 437 U.S. 1, 98 S.Ct. 2141, 57 L.Ed.2d 1; Greene v. Massey, 437 U.S. 19, 98 S.Ct. 2151, 57 L.Ed.2d 15; Sanabria v. United States, 437 U.S. 54, 98 S.Ct. 2170, 57 L.Ed.2d 43; Swisher v. Brady, 438 U.S. 204, 98 S.Ct. 2699, 57 L.Ed.2d 705; United States v. Scott, 437 U.S. 82, 98 S.Ct. 2187, 57 L.Ed.2d 65.
7
11 Halsbury's Laws of England ¶ 242 (4th ed. 1076).
8
Establi hed at least by 1676, Turner's Case, 89 Eng.Rep. 158, the rule was embodied in defensive pleas of former conviction or former acquittal. Although the pleas did not mention jeopardy, Blackstone commented that they were based on the "universal maxim . . . that no man is to be brought into jeopardy of his life, more than once, for the same offence." 4 W. Blackstone, Commentaries * 335. See generally J. Sigler, Double Jeopardy 1-37 (1969).
9
See Mayers & Yarbrough, Bis Vexari: New Trials and Successive Prosecutions, 74 Harv.L.Rev. 1 (1960). See also M. Friedland, Double Jeopardy 6 (1969); ALI, Administration of the Criminal Law: Double Jeopardy 7 (1935).
10
In perhaps the first expression of this concept, a state court in 1822 concluded that jeopardy may attach prior to a verdict, because "[t]here is a wide difference between a verdict given and the jeopardy of a verdict." Commonwealth v. Cook, 6 Serg.&R. 577, 596 (Pa.).
In the Perez case, the trial judge had discharged a deadlocked jury, and the defendant argued in this Court that the discharge was a bar to a second trial. The case has long been understood as standing for the proposition that jeopardy attached during the first trial, but that despite the former jeopardy a second trial was not barred by the Double Jeopardy Clause because there was a "manifest necessity" for the discharge of the first jury. See e. g., United States v. Tateo, 377 U.S. 463, 467, 84 S.Ct. 1587, 1589, 12 L.Ed.2d 448; Wade v. Hunter, 336 U.S. 684, 689-690, 69 S.Ct. 834, 837-838, 93 L.Ed. 974. In fact, a close reading of the short opinion in that case could support the view that the Court was not purporting to decide a constitutional question, but simply settling a problem arising in the administration of federal criminal justice. But to cast such a new light on Perez at this late date would be of academic interest only.
In two cases decided in the wake of Perez the Court simply followed its precedential authority: Simmons v. United States, 142 U.S. 148, 12 S.Ct. 171, 35 L.Ed. 968; Thompson v. United States, 155 U.S. 271, 15 S.Ct. 73, 39 L.Ed. 146. But it had become clear at least by the time of Kepner v. United States, 195 U.S. 100, 24 S.Ct. 797, 49 L.Ed. 114, decided in 1904, that jeopardy does attach even in a trial that does not culminate in a jury verdict: "[A] person has been in jeopardy when he is regularly charged with a crime before a tribunal properly organized and competent to try him . . . . Undoubtedly in those jurisdictions where a trial of one accused of crime can only be to a jury, and a verdict of acquittal or conviction must be by a jury, no legal jeopardy can attach until a jury has been called and charged with the deliverance f the accused." Id., at 128, 24 S.Ct., at 804. See also United States v. Dinitz, 424 U.S. 600, 96 S.Ct. 1075, 47 L.Ed.2d 267; United States v. Wilson, 420 U.S. 332, 343-344, 95 S.Ct. 1013, 1021-1022, 43 L.Ed.2d 232; Gori v. United States, 367 U.S. 364, 81 S.Ct. 1523, 6 L.Ed.2d 901.
11
But see Kepner v. United States, supra, 195 U.S. 100, at 128, 24 S.Ct. 797, at 804, 49 L.Ed. 114; n. 10, supra.
12
Trial juries were at first merely a substitute for other inscrutable methods of decisionmaking, such as trial by battle, compurgation, and ordeal. See W. Holdsworth, A History of English Law 317 (7th ed. 1956). See also T. Plucknett, A Concise History of the Common Law 125 (5th ed. 1956). They soon evolved, however, into a more rational instrument of decisionmaking—serving as a representative group of peers to sit in judgment on a defendant's guilt.
13
Illustrative of this tradition was the practice of keeping the jury together unfed and without drink until it delivered its unanimous verdict. See Y.B. Trin. 14 Hen. VII, pl. 4. See Plucknett, supra, at 119. As Lord Coke put the matter: "A jury sworn and charged in case of life or member, cannot be discharged by the court or any other, but they ought to give a verdict." 1 E. Coke, Institutes, 227(b) (6th ed. 1861). And an English court said as late as 1866: "[The rule] seems to command the confinement of the jury till death if they do not agree, and to avoid any such consequence an exception was introduced in practice which Blackstone has described by the words 'except in case of evident necessity.' " Winsor v. The Queen, [1866] 1 Q.B. 390, 394.
14
The United States as amicus curiae makes a similar argument.
15
In nonjury trials jeopardy does not attach until the first witness is sworn. Serfass v. United States, 420 U.S. 377, 388, 95 S.Ct. 1055, 1062, 43 L.Ed.2d 265.
16
The United States alternatively proposes a due process sliding "interest balancing test" under which the further the trial has proceeded the more the justification required for a midtrial termination. Montana alternatively proposes that jeopardy should not be held to attach until a prima facie case has been made, on the premise that only then will a defendant truly be in jeopardy. The legal literature provides at least one other approach: jeopardy should attach "as soon as the process of selecting the jury begins." See Schulhofer, Jeopardy and Mistrials, 125 U.Pa.L.Rev. 449, 512-514 (1977).
1
4 W. Blackstone, Commentaries * 335. See also 3 E. Coke, Institute 213-214 (6th ed. 1681).
2
J. Archbold, Pleading, Evidence & Practice in Criminal Cases §§ 435-459 (35th ed. 1962).
3
Interestingly, Blackstone wrote that the jury could not be discharged, not as soon as it was sworn, but only after evidence had been introduced. 4 W. Blackstone, Commentaries * 360. A relatively recent edition of Blackstone, compiled from the earliest editions, indicates that the close of the ev dence may have been the point at which the rule against discharge of the jury originally was fixed by that authority. J. Ehrlich, Ehrlich's Blackstone 941 (1959).
4
2 M. Hale, Pleas of the Crown 294-295 (W. Stokes & E. Ingersoll ed. 1847). In the infamous Ireland's Case, 7 How.St.Tr. 79 (1679), five defendants were accused of high treason. The court permitted the jury to deliberate as to three defendants, but instructed the jury that the evidence against Whitebread and Fenwick was not sufficient to convict, even though "so full, as to satisfy a private conscience." Id., at 121. The court therefore discharged the jury of those two, declaring that it would "be convenient, from what is already proved, to have them stay until more proof may come in." Ibid. They were reindicted, convicted, and executed, Whitebread's Case, 7 How.St.Tr. 311 (1679), despite their pleas of former jeopardy, id., at 315-318.
5
In Conway and Lynch v. The Queen, 7 Ir. 149 (Q.B.1845), the Irish Court of Queen's Bench did review on writ of error the prisoners' convictions after reindictment, holding that where the trial judge failed to state on the record the condition of necessity which had prompted the discharge of the first jury, there was an abuse of discretion preventing subsequent trial. The English Court of Queen's Bench, however, rejected this view in Charlesworth and in Winsor. Indeed, that court adopted the view of Justice Crampton, who had dissented in Conway and Lynch.
6
See also United States v. Coolidge, 25 Fed.Cas. 622 (No. 14,858) (CC Mass.1815) (Story, J.). Despite the view clearly expressed in Mr. Justice Story's Commentaries, there is some evidence that by the year following its publication he was beginning to consider the rule against discharge of the jury as embodying some double jeopardy concerns. See United States v. Gibert, 25 Fed.Cas. 1287, 1295-1296 (No. 15,204) (CC Mass.1834).
7
That Perez was not concerned with pleas in bar—and therefore not with the Double Jeopardy Clause—is supported by its recognition of the doctrine of manifest necessity. No "necessity" for example, discovery of incontrovertible evidence that a previously acquitted person was guilty—sufficed to overcome a valid plea in bar. Necessity went only to the propriety of discharging the jury. See United States v. Bigelow, 14 D.C. 393, 401-403 (1884).
8
The Court recognizes that Perez probably cannot be viewed as a double jeopardy case. Ante, at 34 n. 10.
9
Simmons v. United States, 142 U.S. 148, 12 S.Ct. 171, 35 L.Ed. 968 (1891); Logan v. United States, 144 U.S. 263, 12 S.Ct. 617, 36 L.Ed. 429 (1892); Thompson v. United States, 155 U.S. 271, 15 S.Ct. 73, 39 L.Ed. 146 (1894); Dreyer v. Illinois, 187 U.S. 71, 23 S.Ct. 28, 47 L.Ed. 79 (1902); Lovato v. New Mexico, 242 U.S. 199, 37 S.Ct. 107, 61 L.Ed. 244 (1916). See also United States v. Morris, 26 Fed.Cas. 1323 (No. 15,815) (CC Mass.1851) (Curtis, J.). But see Keerl v. Montana, 213 U.S. 135, 29 S.Ct. 469, 53 L.Ed. 734 (1909); cf. Kepner v. United States, 195 U.S. 100, 128, 24 S.Ct. 797, 804, 49 L.Ed. 114 (1904). See also United States v. Shoemaker, 27 Fed.Cas. 1067 (No. 16,279) (CC Ill.1840); United States v. Watson, 28 Fed.Cas. 499 (No. 16,651) (S.D.N.Y.1868).
10
See, e. g., State v. Garrigues, 2 N.C. 188 (1795) (semble ); Commonwealth v. Cook, 6 Serg. & R. 577 (Pa.1822); State v. M'Kee, 1 Bailey 651 (S.C.1830); Mahala v. State, 18 Tenn. 532 (1837); State v. Roe, 12 Vt. 93 (1840); Morgan v. State, 13 Ind. 215 (1859); People v. Webb, 38 Cal. 467 (1869); Nolan v. State, 55 Ga. 521 (1875); Teat v. State, 53 Miss. 439 (1876); Ex parte Maxwell, 11 Nev. 428, 435 (1876); Mitchell v. State, 42 Ohio St. 383 (1884); State v. Ward, 48 Ark. 36, 2 S.W. 191 (1886); People v. Gardner, 62 Mich. 307, 29 N.W. 19 (1886); Commonwealth v. Hart i, 149 Mass. 7, 20 N.E. 310 (1889); State v. Paterno, 43 La.Ann. 514, 9 So. 442 (1891); McDonald v. State, 79 Wis. 651, 48 N.W. 863 (1891); State v. Sommers, 60 Minn. 90, 61 N.W. 907 (1895); Dulin v. Lillard, 91 Va. 718, 20 S.E. 821 (1895). But see, e. g., People v. Goodwin, 18 Johns. 187 (N.Y.Sup.Ct.1820); Commonwealth v. Wade, 34 Mass. 395 (1835); Hoffman v. State, 20 Md. 425, 433 (1863); United States v. Bigelow, 14 D.C. 393 (1884); State v. Van Ness, 82 N.J.L. 181, 83 A. 195 (1912).
American treatises also included the rule against discharge of the jury under the heading of Double Jeopardy. See M. Bigelow, Estoppel 36 (2d ed. 1876); 1 J. Bishop, Commentaries on the Criminal Law § 1016 (5th ed. 1872); T. Cooley, Constitutional Limitations 325-327 (2d ed. 1871). See generally ALI, Administration of the Criminal Law, Commentary to § 6, pp. 61-72 (1935). The leading English criminal law treatise was to the contrary. See 1 J. Chitty, Criminal Law 451-463, 480 (J. Perkins ed. 1847).
11
See, e. g., State v. M'Kee, supra, at 655 (1830); Morgan v. State, supra, at 216; State v. Redman, 17 Iowa 329, 333 (1864); People v. Webb, supra, at 478; Nolan v. State, supra, at 523; State v. Davis, 80 N.C. 384 (1879); Mitchell v. State, supra, at 393; State v. Ward, supra, at 38, 2 S.W. 191; People v. Gardner, supra, at 311, 29 N.W., at 20; State v. Paterno, supra, at 515, 9 So. 442; McDonald v. State, supra, at 653, 48 N.W., at 864; State v. Sommers, supra, at 91, 61 N.W. 907; Dulin v. Lillard, supra, at 722, 20 S.E., at 822; accord, Bishop, supra, n. 10; Cooley, supra, n. 10.
12
But see United States v. Bigelow, supra.
13
Similarly, the Court today does not explore the reasons supporting valuation of this particular right, merely announcing that it is "valued." Ante, at 38.
14
The Government in Downum conceded that jeopardy attaches at the time the jury is sworn. Brief for United States, O.T.1962, No. 489, p. 31. In support of this concession, the Government cited Lovato v. New Mexico, 242 U.S. 199, 37 S.Ct. 107, 61 L.Ed. 244 (1916), apparently believing that Lovato had involved discharge of the jury immediately after swearing. In that case, however, the witnesses for both sides had been sworn, so that it actually furnished no support for the concession. Since the parties did not dispute the point of jeopardy's attachment, the Court did not discuss the matter. Because the rule of attachment was not put in issue and not discussed in Downum, we owe this sub silentio determination less deference than a holding arrived at after full argument and consideration, see Monell v. New York City Dept. of Social Services, 436 U.S. 658, 709-710, n. 6, 98 S.Ct. 2018, 2045, 56 L.Ed.2d 611 (1978) (Powell, J., concurring), particularly in a constitutional case.
15
In Serfass v. United States, 420 U.S. 377, 95 S.Ct. 1055, 43 L.Ed.2d 265 (1975), the petitioner sought to have the point of attachment moved forward to the filing of pretrial motions. The Court's refusal to fix the attachment of jeopardy at that stage of the litigation did not require any consideration of the policies underlying the rule assumed in Downum and reaffirmed today.
16
Apparently, defense counsel often choose to reserve their opening statements until the close of the prosecution's case. Tr. of Oral Arg. 10, 15-17; Brief on Reargument for United States as Amicus Curiae 23 n. 25. Where this course is followed, there will be no early disclosure of defense strategy.
17
At l ast one commentator has proposed fixing jeopardy's attachment at the start of voir dire, in order to protect the defendant's interest in each juror, as selected. Schulhofer, Jeopardy and Mistrial 125 U.Pa.L.Rev. 449, 513 (1977). This proposal, however, has no historical foundation nor any clear grounding in the concerns of the Double Jeopardy Clause.
| 01
|
437 U.S. 19
98 S.Ct. 2151
57 L.Ed.2d 15
Richard Austin GREENE, Petitioner,v.Raymond D. MASSEY, Superintendent, Union Correctional Institution.
No. 76-6617.
Argued Nov. 28, 1977.
Decided June 14, 1978.
Syllabus
On appeal of the first-degree murder convictions of petitioner and another, the Florida Supreme Court reversed by a per curiam opinion and ordered a new trial. That opinion, which a majority of four justices joined, stated that "the evidence was definitely lacking in establishing beyond a reasonable doubt that the defendants committed murder in the first degree," and that the "interests of justice require a new trial." Three justices dissented without opinion. Three of the justices who had joined the per curiam also filed a "special concurrence," which, though concerned only with trial error, concluded that "[f]or the reasons stated the judgments should be reversed and remanded for a new trial so we have agreed to the Per Curiam order doing so." Before the second trial defendants unsuccessfully contended in the state courts that the per curiam opinion was tantamount to a finding that the trial court should have directed a verdict of not guilty and that a second trial for first-degree murder would constitute double jeopardy; and the defendants were retried and convicted of first-degree murder. Petitioner and his codefendant, by appeal in the state courts and petitioner by application for habeas corpus in the District Court and Court of Appeals, unavailingly pressed their double jeopardy claims. Held: Burks v. United States, 437 U.S. 1, 98 S.Ct. 2141, 57 L.Ed.2d 1, precludes a second trial once a reviewing court has determined that the evidence introduced at trial is insufficient to sustain the verdict. Standing by itself, the per curiam would therefore clearly compel the conclusion that petitioner's second trial violated the Double Jeopardy Clause. But the special concurrence leaves open the possibility that three of the justices who joined the per curiam were concerned simply with trial error and joined in the remand solely to give the defendants an error-free trial—even though they were satisfied that the evidence was sufficient to support the verdict. So that the ambiguity can be resolved, the case is remanded to the Court of Appeals for reconsideration in light of the Court's opinion and Burks, supra. Pp. 24-27.
546 F.2d 51, reversed and remanded.
John T. Chandler, Gainesville, Fla., for petitioner, pro hac vice, by special leave of Court.
Harry M. Hipler, West Palm Beach, Fla., for respondent, pro hac vice, by special leave of Court.
Mr. Chief Justice BURGER delivered the opinion of the Court.
1
We granted certiorari to decide whether a State may retry a defendant after his conviction has been reversed by an appellate court on the ground that the evidence introduced at the prior trial was insufficient, as a matter of law, to sustain the jury's verdict.
2
* On September 7, 1965, petitioner Greene and Jose Manuel Sosa were indicted by a Florida grand jury for the murder of Nicanor Martinez. The indictment charged that Sosa "did hire, procure, aid, abet and counsel" Greene to murder Martinez and that petitioner had carried out the premeditated plan, shooting the victim to death with a pistol. A state-court jury subsequently found the defendants guilty of first-degree murder, without a recommendation of mercy. Pursuant to Florida law at the time, the trial court sentenced both defendants to death.
3
On appeal to the Florida Supreme Court, the convictions of Greene and Sosa were reversed and new trials ordered. The reviewing court was sharply divided, however, with a majority composed of four justices joining a brief per curiam opinion which disposed of the case in the following terms:
4
"After a careful review of the voluminous evidence here we are of the view that the evidence was definitely lacking in establishing beyond a reasonable doubt that the defendants committed murder in the first degree, and that the interests of justice require a new trial. The judgments are accordingly reversed and remanded for a new trial." Sosa v. State, 215 So.2d 736, 737 (1968). (Emphasis added.)
5
Three justices dissented without opinion; we can do no more than speculate that the dissenting justices concluded there was sufficient evidence to support the jury verdict. In addition, a separate "special concurrence" was filed on behalf of three of the four justices who had also joined the per curiam opinion remanding for a new trial. These three concurring justices undertook a detailed examination of various asserted trial errors and found that on at least one claim the trial court had committed reversible error.1 This point concerned the improper admission of certain hearsay evidence which, in the opinion of the concurring justices, had a "potential probative force" that could have been "highly incriminating or critical to the establishment of an ultimate fact in dispute." Id., at 745. While the concurrence of the three justices makes no mention of evidentiary insufficiency as such, the opinion concludes:
6
"For the reasons stated the judgments should be reversed and remanded for a new trial so we have agreed to the Per Curiam order doing so." Id., at 746.
7
The "reasons stated" by the concurring justices thus concerned trial error, but paradoxically, the three explicitly joined the Court's per curiam opinion which rested exclusively on the ground that the evidence was insufficient to support the verdict.
8
The case was then remanded, and after some intervening procedural maneuvering, the defendants were ordered retried in the Circuit Court of Orange County, Fla. Prior to their second trial, however, the defendants filed a suggestion for a writ of prohibition, claiming that their retrial would violate the Double Jeopardy Clause of the Federal Consti ution, as it was applied to the States by Benton v. Maryland, 395 U.S. 784, 89 S.Ct. 2056, 23 L.Ed.2d 707 (1969). They contended that the per curiam opinion of the State Supreme Court was tantamount to a finding that the trial court should have directed a verdict of not guilty and hence a second trial for first-degree murder would constitute double jeopardy. When the trial court refused to issue the writ, review was sought in the Second District Court of Appeal of Florida. That court likewise declined to issue a writ of prohibition, but expressly stated that it was not rendering "an opinion as to the propriety of a new trial after a reversal for lack of sufficient evidence to establish, as a matter of law, the essential elements of the crime charged." Sosa v. Maxwell, 234 So.2d 690, 692 (1970). Rather, the District Court of Appeal was of the view that the Supreme Court's reversal "appear[ed] to be based on a finding that the evidence, though technically sufficient, [was] so tenuous as to prompt an appellate court to exercise its discretion and, in the interest of justice, grant a new trial." Id., at 691.2 Considering the case in this posture, the court indicated that it could find no precedent in Florida law which would bar a retrial on double jeopardy grounds.3 Certiorari was subsequently sought in the Supreme Court of Florida, which denied the petition without comment. 240 So.2d 640 (1970).
9
Greene and Sosa were then retried. On January 15, 1972, they were convicted of first-degree murder and each received a life sentence, the second jury having recommended mercy. From this judgment they appealed to the Fourth District Court of Appeal of Florida, raising again their contention that the second trial violated the Double Jeopardy Clause. While conceding "the point to be academically intriguing," Greene v. State, 302 So.2d 202, 203 (1974), that court refused to reach the merits of the double jeopardy claim, holding instead that the Court of Appeal's earlier disposition of the issue was res judicata. Greene and Sosa applied for a writ of certiorari in this Court and certiorari was denied. Greene v. Florida, 421 U.S. 932, 95 S.Ct. 1660, 44 L.Ed.2d 89 (1975).
10
Having exhausted all avenues of direct relief, petitioner Greene4 applied for a writ of habeas corpus in the United States District Court, arguing once more that his second trial was held in violation of the Double Jeopardy Clause. Although the District Court was sympathetic to petitioner's claim,5 it felt constrained by prior Fifth Circuit precedent to dismiss the petition. From this ruling petitioner appealed to the Court of Appeals, which affirmed the District Court on the basis of an earlier Fifth Circuit case, United States v. Musquiz, 445 F.2d 963 (1971). 546 F.2d 51 (1977). The Musquiz decision had interpreted several of this Court's cases6 to mean that under 28 U.S.C § 2106, a court of appeals could order a new trial after a conviction had been reversed due to evidentiary insufficiency "if a motion for a new trial was made in the trial court." Greene, 546 F.2d at 56. Noting that Greene had made a motion for a new trial after his first conviction, and that the Florida Supreme Court had "review power at least equal to that possessed by this Court [of Appeals] under § 2106," ibid., the court held that a new trial had been a constitutionally permissible remedy.
11
We granted certiorari, 432 U.S. 905, 97 S.Ct. 2949, 53 L.Ed.2d 1077 (1977), to review the judgment of the United States Court of Appeals.
II
12
In Burks v. United States, 437 U.S. 1, 98 S.Ct. 2141, 57 L.Ed.2d 1, decided today, we have held that the Double Jeopardy Clause precludes a second trial once a reviewing court has determined that the evidence introduced at trial was insufficient to sustain the verdict. Since the constitutional prohibition against double jeopardy is fully applicable to state criminal proceedings, Benton v. Maryland, supra, we are bound to apply the standard announced in Burks to the case now under review.
13
If we were confronted only with the per curiam opinion of the Florida Supreme Court, reversal in this case would follow. The per curiam disposition, standing by itself, leaves no room for interpretation by us other than that a majority of the State Supreme Court was "of the view that the evidence was definitely lacking in establishing beyond a reasonable doubt that the defendants committed murder in the first degree . . . ." By using a precise terminology "lacking in establishing beyond a reasonable doubt," the highest court in Florida seems to have clearly said that there was insufficient evidence to permit the jury to convict petitioner at his first trial.7 The dispositive per curiam opinion makes no reference to the trial errors raised on appeal. Viewed in this manner, the reasoning enunciated in Burks would obviously compel the conclusion that Green's second trial violated the Double Jeopardy Clause.
14
But the situation is confused by the fact that three of the four justices who joined in the per curiam disposition expressly qualified their action by "specially concurring" in an opinion which discussed only trial error. One could interpret this action to mean that the three concurring justices were concerned simply with trial error and joined in the remand solely to afford Greene and Sosa a fair, error-free trial—even though they were satisfied that the evidence was sufficient to support the verdict. A reversal grounded on such a holding, of course, would not prevent a retrial.8 See Burks, ante, 437 U.S., at 15-16, 98 S.Ct., at 2149; United States v. Tateo, 377 U.S. 463, 465, 84 S.Ct. 1587, 1588, 12 L.Ed.2d 448 (1964). The problem with this interpretation is that the opinion concludes by expressly stating that the three concurring justices had "agreed to the Per Curiam order . . . ." When the concurrence is considered in light of the language of the per curiam opinion, it could reasonably be said that the concurring justices thought that the legally competent evidence adduced at the first trial was insufficient to prove guilt. That is, they were of the opinion that once the inadmissible hearsay evidence was discounted, there was insufficient evidence to permit the jury to convict.9
15
Given the varying interpretations10 that can be placed on the actions of the several Florida appellate courts, we conclude that this case should be remanded to the Court of Appeals for reconsideration in light of this opinion and Burks v. United States, 437 U.S. 1, 98 S.Ct. 2141, 57 L.Ed.2d 437. The Court of Appeals will be free to direct further proceedings in the District Court or to certify unresolved questions of state law to the Florida Supreme Court. See Fla.Stat. § 25.031 (1977), Fla.App. Rule 4.61; Lehman Bros. v. Schein, 416 U.S. 386, 94 S.Ct. 1741, 40 L.Ed.2d 215 (1974).
16
Reversed and remanded.
17
Mr. Justice BLACKMUN took no part in the consideration or decision of this case.
18
Mr. Justice POWELL, concurring.
19
I concur in the opinion of the Court except insofar as it states that the constitutional prohibition against double jeopardy is fully applicable to state criminal proceedings. See Crist v. Bretz, 437 U.S. 28, 40, 98 S.Ct. 2156, 2163, 57 L.Ed.2d 24 (POWELL, J., dissenting). I bel eve however, that under our decision today in Burks v. United States, 437 U.S. 1, 98 S.Ct. 2141, 57 L.Ed.2d 1, a fundamental component of the prohibition against double jeopardy is the right not to be retried once an appellate court has found the evidence insufficient as a matter of law to support the jury's guilty verdict.
20
Mr. Justice REHNQUIST, concurring in the judgment.
21
For the reasons stated by Mr. Justice POWELL in his dissenting opinion in Crist v. Bretz, 437 U.S. 28, 40, 98 S.Ct. 2156, 2163, 57 L.Ed.2d 24. I do not agree with the Court's premise, ante, p. 24, that "the constitutional prohibition against double jeopardy is fully applicable to state criminal proceedings." Even if I did agree with that view, I would want to emphasize more than the Court does in its opinion the varying practices with respect to motions for new trial and other challenges to the sufficiency of the evidence both at the trial level and on appeal in the 50 different States in the Union. Thus, to the extent that Florida practice in this regard differs from practice in the federal system, the impact of the Double Jeopardy Clause may likewise differ with respect to a particular proceeding. I therefore concur only in the Court's judgment.
1
The concurrence also concluded that the trial court had improperly ruled on a question concerning a subpoena duces tecum, the result of which was that the defense may have been deprived of evidence to which it was entitled. It is not clear from the opinion whether the concurring justices would have regarded this error, in and of itself, as requiring reversal.
2
The District Court of Appeal noted that "on many occasions" Florida courts had "held that where the weight of evidence appears . . . to the appellate court to be very weak, although apparently legally sufficient if all permissible inferences are made and certain witnesses believed or disbelieved, a new trial may be granted." 234 So.2d, at 691. That court construed the language in the per curiam opinion of the State Supreme Court "as indicating that although some evidence on all elements of the crime was present, a grave doubt that affirmance would be in the interests of justice was raised in the minds of those members of the supreme court joining in the per curiam decision." Id., at 691 n. 10.
3
Although the District Court of Appeal thus failed to decide whether the State might retry a defendant after a conviction has been reversed on the ground that the evidence was insufficient to support the verdict, it did opine in dictum that in such circumstances "the trial judge should have directed a verdict of acquittal." Id., at 692.
4
Sosa was not a party to the federal habeas corpus action; accordingly, our holding here has no effect on his conviction.
5
In its unreported order dismissing the petition, the District Court stated that "if this were a question of first impression in the Fifth Circuit, this Court might be inclined to grant the petition. Regardless of whether an appellate court or a trial jury makes the determination that the evidence is insufficient to sustain a finding of guilt as to a particular charge, and regardless of whether a petitioner moves for a new trial on other grounds in addition to asserting the ground of insufficiency of evidence, it would seem that the double jeopardy clause would preclude giving the prosecution a second chance."
6
These included Forman v. United States, 361 U.S. 416, 80 S.Ct. 481, 4 L.Ed.2d 412 (1960); Sapir v. United States, 348 U.S. 373, 75 S.Ct. 422, 99 L.Ed. 426 (1955); Bryan v. United States, 338 U.S. 552, 70 S.Ct. 317, 94 L.Ed. 335 (1950).
7
Arguably, the per curiam opinion might be read as meaning that although there was insufficient evidence to convict the defendants of "murder in the first degree," there was nonetheless evidence to support a conviction for a lesser included offense, e. g., second-degree murder, see Fla.Stat. § 782.04 (1977). At the time of the Florida Supreme Court's holding in this case, the Double Jeopardy Clause was not applicable to state proceedings, and hence that court conceivably did not see any need to consider whether, under the Federal Constitution, a retrial would be allowed only for some lesser included offense. Cf. Green v. United States, 355 U.S. 184, 78 S.Ct. 221, 2 L.Ed.2d 199 (1957). Indeed, even if Benton v. Maryland, 395 U.S. 784, 89 S.Ct. 2056, 23 L.Ed.2d 707 (1969), had been decided prior to the State Supreme Court's action, the Florida court might have reasonably c ncluded from our decisions that a retrial for first-degree murder was permissible under the Double Jeopardy Clause. See Burks, 395 U.S., at 10, 98 S.Ct., at 2147. Given our decision today to remand this case for reconsideration by the Court of Appeals, we need not reach the question of whether the State could, consistent with the Double Jeopardy Clause, try Greene for a lesser included offense in the event that his first-degree murder conviction is voided.
8
Even if this view of the concurrence is accepted, it would still mean that only a plurality of the Florida Supreme Court embraced the conclusion that reversal was justified solely on trial-error grounds. We leave resolution of this ambiguity to the Court of Appeals on remand, which will undoubtedly be in a better position to understand how Florida law would construe such a disposition.
9
We express no opinion as to the double jeopardy implications of a retrial following such a holding.
10
We note that the Second District Court of Appeal attached still another interpretation to the Florida Supreme Court's action, namely, that a new trial was being granted "in the interests of justice," even though the evidence was technically sufficient to support a verdict of guilty. See supra, at 22 n. 2. We are unaware, however, of the amount of weight that Florida law would afford to a district court of appeal's interpretation of its Supreme Court's actions. Nor are we willing to express an opinion as to the double jeopardy implications of a retrial ordered on such grounds. We leave both of these considerations to the Court of Appeals on remand.
| 01
|
437 U.S. 82
98 S.Ct. 2187
57 L.Ed.2d 65
UNITED STATES, Petitioner,v.John Arthur SCOTT.
No. 76-1382.
Argued Feb. 21, 1978.
Decided June 14, 1978.
Rehearing Denied Oct. 2, 1978.
See 439 U.S. 883, 99 S.Ct. 226.
Syllabus
Respondent, indicted for federal drug offenses, moved before trial and twice during trial for dismissal of two counts of the indictment on the ground that his defense had been prejudiced by preindictment delay. At the close of all the evidence the trial court granted respondent's motion. The Government sought to appeal the dismissals under 18 U.S.C. § 3731 (1976 ed.), which allows the United States to appeal from a district court's dismissal of an indictment except where the Double Jeopardy Clause of the Fifth Amendment prohibits further prosecution. The Court of Appeals, concluding that that Clause barred further prosecution, dismissed the appeal, relying on United States v. Jenkins, 420 U.S. 358, 95 S.Ct. 1006, 43 L.Ed.2d 250. In that case the Court, following the principle underlying the Double Jeopardy Clause that the Government with all its resources and power should not be allowed to make repeated attempts to convict an individual for an alleged offense, held that, whether or not a dismissal of an indictment after jeopardy had attached amounted to an acquittal on the merits, the Government had no right to appeal because "further proceedings of some sort, devoted to the resolution of factual issues going to the elements of the offense charged, would have been required upon reversal and remand."
Held : Where a defendant himself seeks to have his trial terminated without any submission to either judge or jury as to his guilt or innocence, an appeal by the Government from his successful effort to do so does not offend the Double Jeopardy Clause, and hence is not barred by 18 U.S.C. § 3731 (1976 ed.). United States v. Jenkins, supra, overruled. Pp. 87-101.
(a) The successful appeal of a judgment of conviction, except on the ground of insufficiency of the evidence to support the verdict, Burks v. United States, 437 U.S. 1, 98 S.Ct. 2141, 57 L.Ed.2d 1 does not bar further prosecution on the same charge. A judgment of acquittal, whether based on a jury verdict of not guilty or on a ruling by the court that the evidence is insufficient to convict, may not be appealed and terminates the prosecution when a second trial would be necessitated by a reversal. Pp. 87-92.
(b) Where no final determination of guilt or innocence has been made a trial judge may declare a mistrial on the motion of the prosecution or upon his own initiative only if "there is a manifest necessity for the act, or the ends of public justice would otherwise be defeated," United States v. Perez, 9 Wheat. 579, 580, 6 L.Ed. 165, but where a defendant successfully seeks to avoid his trial prior to its conclusion by a motion for a mistrial, the Double Jeopardy Clause is not offend d by a second prosecution. Such a motion by the defendant is deemed to be a deliberate election on his part to forgo his valued right to have his guilt or innocence determined by the first trier of fact. United States v. Dinitz, 424 U.S. 600, 609, 96 S.Ct. 1075, 1080, 47 L.Ed.2d 267. Pp. 92-94.
(c) At least in some cases, the dismissal of an indictment after jeopardy has "attached" may be treated on the same basis as the declaration of a mistrial even though a successful Government appeal would require further trial court proceedings leading to the factual resolution of the issue of guilt or innocence, see Lee v. United States, 432 U.S. 23, 97 S.Ct. 2141, 53 L.Ed.2d 80, and the Court's growing experience with Government appeals calls for a re-examination of the rationale in Jenkins in light of Lee; United States v. Martin Linen Supply Co., 430 U.S. 564, 97 S.Ct. 1349, 51 L.Ed.2d 642; and other recent expositions of the Double Jeopardy Clause. Pp. 94-95.
(d) In a situation such as the instant one, where a defendant chooses to avoid conviction, not because of his assertion that the Government has failed to make out a case against him, but because of a legal claim that the Government's case against him must fail even though it might satisfy the trier of fact that he was guilty beyond a reasonable doubt, the defendant by deliberately choosing to seek termination of the trial suffers no injury cognizable under the Double Jeopardy Clause if the Government is permitted to appeal from such a trial-court ruling favoring the defendant. The Double Jeopardy Clause, which guards against Government oppression, does not relieve a defendant of the consequences of his voluntary choice. Pp. 95-101.
544 F.2d 903, reversed and remanded.
Andrew L. Frey, Washington, D. C., for petitioner.
William C. Marietti, Muskegon, Mich., for respondent.
Mr. Justice REHNQUIST delivered the opinion of the Court.
1
On March 5, 1975, respondent, a member of the police force in Muskegon, Mich., was charged in a three-count indictment with distribution of various narcotics. Both before his trial in the United States District Court for the Western District of Michigan, and twice during the trial, respondent moved to dismiss the two counts of the indictment which concerned transactions that took place during the preceding September, on the ground that his defense had been prejudiced by preindictment delay. At the close of all the evidence, the court granted respondent's motion. Although the court did not explain its reasons for dismissing the second count, it explicitly concluded that respondent had "presented sufficient proof of prejudice with respect to Count I. App. to Pet. for Cert. 8a. The court submitted the third count to the jury, which returned a verdict of not guilty.
2
The Government sought to appeal the dismissals of the first two counts to the United States Court of Appeals for the Sixth Circuit. That court, relying on our opinion in United States v. Jenkins, 420 U.S. 358, 95 S.Ct. 1006, 43 L.Ed.2d 250 (1975), concluded that any further prosecution of respondent was barred by the Double Jeopardy Clause of the Fifth Amendment, and therefore dismissed the appeal. 544 F.2d 903 (1976). The Government has sought review in this Court only with regard to the dismissal of the first count. We granted certiorari to give further consideration to the applicability of the Double Jeopardy Clause to Government appeals from orders granting defense motions to terminate a trial before verdict. We now reverse.
3
* The problem presented by this case could not have arisen during the first century of this Court's existence. The Court has long taken the view that the United States has no right of appeal in a criminal case, absent explicit statutory authority. United States v. Sanges, 144 U.S. 310, 12 S.Ct. 609, 36 L.Ed. 445 (1892). Such authority was not provided until the enactment of the Criminal Appeals Act, Act of Mar. 2, 1907, h. 2564, 34 Stat. 1246, which permitted the United States to seek a writ of error in this Court from any decision dismissing an indictment on the basis of "the invalidity, or construction of the statute upon which the indictment is founded." Our consideration of Government appeals over the ensuing years ordinarily focused upon the intricacies of the Act and its amendments.1 In 1971, however, Congress adopted the current language of the Act, permitting Government appeals from any decision dismissing an indictment, "except that no appeal shall lie where the double jeopardy clause of the United States Constitution prohibits further prosecution." 18 U.S.C. § 3731 (1976 ed.). Soon thereafter, this Court remarked in a footnote with more optimism than prescience that "[t]he end of our problems with this Act is finally in sight." United States v. Weller, 401 U.S. 254, 255 n. 1, 91 S.Ct. 602, 604, 28 L.Ed.2d 26 (1971). For in fact the 1971 amendment did not end the debate over appeals by the Government in criminal cases; it simply shifted the focus of the debate from issues of statutory construction to issues as to the scope and meaning of the Double Jeopardy Clause.
4
In our first encounter with the new statute, we concluded that "Congress intended to remove all statutory barriers to Government appeals and to allow appeals whenever the Constitution would permit." United States v. Wilson, 420 U.S. 332, 337, 95 S.Ct. 1013, 1018, 43 L.Ed.2d 232 (1975). Since up to that point Government appeals had been subject to statutory restrictions independent of the Double Jeopardy Clause, our previous cases construing the statute proved to be of little assistance in determining when the Double Jeopardy Clause of the Fifth Amendment would prohibit further prosecution. A detailed canvass of the history of the double jeopardy principles in English and American law led us to conclude that the Double Jeopardy Clause was primarily "directed at the threat of multiple prosecutions," and posed no bar to Government appeals "where those appeals would not require a new trial." Id., at 342, 95 S.Ct., at 1021. We accordingly held in Jenkins, supra, 420 U.S., at 370, 95 S.Ct., at 1013, that, whether or not a dismissal of an indictment after jeopardy had attached amounted to an acquittal on the merits, the Government had no right to appeal, because "further proceedings of some sort, devoted to the resolution of factual issues going to the elements of the offense charged, would have been required upon reversal and remand."2
5
If Jenkins is a correct statement of the law, the judgment of the Court of Appeals relying on that decision, as it was bound to do, would in all likelihood have to be affirmed.3 Yet, though our assessment of the history and meaning of the Double Jeopardy Clause in Wilson, Jenkins, and Serfass v. United States, 420 U.S. 377, 95 S.Ct. 1055, 43 L.Ed.2d 265 (1975), occurred only three Terms ago, our vastly in reased exposure to the various facets of the Double Jeopardy Clause has now convinced us that Jenkins was wrongly decided. It placed an unwarrantedly great emphasis on the defendant's right to have his guilt decided by the first jury empaneled to try him so as to include those cases where the defendant himself seeks to terminate the trial before verdict on grounds unrelated to factual guilt or innocence. We have therefore decided to overrule Jenkins, and thus to reverse the judgment of the Court of Appeals in this case.
II
6
The origin and history of the Double Jeopardy Clause are hardly a matter of dispute. See generally Wilson, supra, 420 U.S., at 339-340, 95 S.Ct., at 1019-1020; Green v. United States, 355 U.S. 184, 187-188, 78 S.Ct. 221, 223-224, 2 L.Ed.2d 199 (1957); id., at 200, 78 S.Ct., at 230 (Frankfurter, J., dissenting). The constitutional provision had its origin in the three common-law pleas of autrefois acquit, autrefois convict, and pardon. These three pleas prevented the retrial of a person who had previously been acquitted, convicted, or pardoned for the same offense. As this Court has described the purpose underlying the prohibition against double jeopardy:
7
"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 insecurity, as well as enhancing the possibility that even though innocent he may be found guilty." Green, supra, at 187-188, 78 S.Ct., at 223.
8
These historical purposes are necessarily general in nature, and their application has come to abound in often subtle distinctions which cannot by any means all be traced to the original three common-law pleas referred to above.
9
Part of the difficulty arises from the development of other protections for criminal defendants in the years since the adoption of the Bill of Rights. At the time the Fifth Amendment was adopted, its principles were easily applied, since most criminal prosecutions proceeded to final judgment, and neither the United States nor the defendant had any right to appeal an adverse verdict. See Act of Sept. 24, 1789, ch. 20, § 22, 1 Stat. 84. The verdict in such a case was unquestionably final, and could be raised in bar against any further prosecution for the same offense.
10
Soon thereafter, Congress made provision for review of certain criminal cases by this Court, but only upon a certificate of division from the circuit court, and not at the instigation of the defendant. Act of April 29, 1802, ch. 31, § 6, 2 Stat. 159. It was not until 1889 that Congress permitted criminal defendants to seek a writ of error in this Court, and then only in capital cases. Act of Feb. 6, 1889, ch. 113, § 6, 25 Stat. 656.4 Only then did it become necessary for this Court to deal with the issues presented by the challenge of verdicts on appeal.
11
And, in the very first case presenting the issues, United States v. Ball, 163 U.S. 662, 16 S.Ct. 1192, 41 L.Ed. 300 (1896), the Court established principles that have been adhered to ever since. Three persons had been tried together for murder; two were convicted, the other acquitted. This Court reversed the convictions, finding the indictment fatally defective, Ball v. United States, 140 U.S. 118, 11 S.Ct. 761, 35 L.Ed. 377 (1891), whereupon all three defendants were tried again. This time all three were convicte and they again sought review here. This Court held that the Double Jeopardy Clause precluded further prosecution of the defendant who had been acquitted at the original trial5 but that it posed no such bar to the prosecution of those defendants who had been convicted in the earlier proceeding. The Court disposed of their objection almost peremptorily:
12
"Their plea of former conviction cannot be sustained, because upon a writ of error sued out by themselves the judgment and sentence against them were reversed, and the indictment ordered to be dismissed. . . . [I]t is quite clear that a defendant, who procures a judgment against him upon an indictment to be set aside, may be tried anew upon the same indictment, or upon another indictment, for the same offence of which he had been convicted." 163 U.S., at 671-672, 16 S.Ct., at 1195.
13
Although Ball firmly established that a successful appeal of a conviction precludes a subsequent plea of double jeopardy, the opinion shed no light on whether a judgment of acquittal could be reversed on appeal consistently with the Double Jeopardy Clause. Because of the statutory restrictions upon Government appeals in criminal cases, this Court in the years after Ball was faced with that question only in unusual circumstances, such as were present in Kepner v. United States, 195 U.S. 100, 24 S.Ct. 797, 49 L.Ed. 114 (1904). That case arose out of a criminal prosecution in the Philippine Islands, to which the principles of the Double Jeopardy Clause had been expressly made applicable by Act of Congress. Although the defendant had been acquitted in his original trial, traditional Philippine procedure provided for a trial de novo upon appeal. This Court, in reversing the resulting conviction, remarked:
14
"The court of first instance, having jurisdiction to try the question of the guilt or innocence of the accused, found Kepner not guilty; to try him again upon the merits, even in an appellate court, is to put him a second time in jeopardy for the same offense . . . ." Id., at 133, 24 S.Ct., at 806.6
15
More than 50 years later, in Fong Foo v. United States, 369 U.S. 141, 82 S.Ct. 671, 7 L.Ed.2d 629 (1962), this Court reviewed the issuance of a writ of mandamus by the Court of Appeals for the First Circuit instructing a District Court to vacate certain judgments of acquittal. Although indicating its agreement with the Court of Appeals that the judgments had been entered erroneou ly, this Court nonetheless held that a second trial was barred by the Double Jeopardy Clause. Id., at 143, 82 S.Ct., at 672. Only last Term, this Court relied upon these precedents in United States v. Martin Linen Supply Co., 430 U.S. 564, 97 S.Ct. 1349, 51 L.Ed.2d 642 (1977), and held that the Government could not appeal the granting of a motion to acquit pursuant to Fed.Rule Crim.Proc. 29 where a second trial would be required upon remand. The Court, quoting language in Ball, supra, 163 U.S., at 671, 16 S.Ct., at 1195, stated: "Perhaps the most fundamental rule in the history of double jeopardy jurisprudence has been that '[a] verdict of acquittal . . . could not be reviewed, on error or otherwise, without putting [a defendant] twice in jeopardy, and thereby violating the Constitution.' " 430 U.S., at 571, 97 S.Ct., at 1354.
16
These, then, at least, are two venerable principles of double jeopardy jurisprudence. The successful appeal of a judgment of conviction, on any ground other than the insufficiency of the evidence to support the verdict, Burks v. United States, 437 U.S. 1, 98 S.Ct. 2141, 57 L.Ed.2d 1, poses no bar to further prosecution on the same charge. A judgment of acquittal, whether based on a jury verdict of not guilty or on a ruling by the court that the evidence is insufficient to convict, may not be appealed and terminates the prosecution when a second trial would be necessitated by a reversal.7 What may seem superficially to be a disparity in the rules governing a defendant's liability to be tried again is explainable by reference to the underlying purposes of the Double Jeopardy Clause. As Kepner and Fong Foo illustrate, the law attaches particular significance to an acquittal. To permit a second trial after an acquittal, however mistaken the acquittal may have been, would present an unacceptably high risk that the Government, with its vastly superior resources, might wear down the defendant so that "even though innocent, he may be found guilty." Green, 355 U.S., at 188, 78 S.Ct., at 223. On the other hand, to require a criminal defendant to stand trial again after he has successfully invoked a statutory right of appeal to upset his first conviction is not an act of governmental oppression of the sort against which the Double Jeopardy Clause was intended to protect. The common sense of the matter is most pithily, if not most elegantly, expressed in the words of Mr. Justice McLean on circuit in United States v. Keen, 26 F.Cas. p. 686, No. 15,510 (CC Ind.1839). He vigorously rejected the view that the Double Jeopardy Clause prohibited any new trial after the setting aside of a judgment of conviction against the defendant or that it "guarantees to him the right of being hung, to protect him from the danger of a second trial." Id., at 690.
III
17
Although the primary purpose of the Double Jeopardy Clause was to protect the integrity of a final judgment, see Crist v. Bretz, 437 U.S. 28, at 33, 98 S.Ct. 2156, at 2159, 57 L.Ed.2d 24, this Court has also developed a body of law g arding the separate but related interest of a defendant in avoiding multiple prosecutions even where no final determination of guilt or innocence has been made. Such interests may be involved in two different situations: the first, in which the trial judge declares a mistrial; the second, in which the trial judge terminates the proceedings favorably to the defendant on a basis not related to factual guilt or innocence.
A.
18
When a trial court declares a mistrial, it all but invariably contemplates that the prosecutor will be permitted to proceed anew notwithstanding the defendant's plea of double jeopardy. See Lee v. United States, 432 U.S. 23, 30, 97 S.Ct. 2141, 2146, 53 L.Ed.2d 80 (1977). Such a motion may be granted upon the initiative of either party or upon the court's own initiative. The fact that the trial judge contemplates that there will be a new trial is not conclusive on the issue of double jeopardy; in passing on the propriety of a declaration of mistrial granted at the behest of the prosecutor or on the court's own motion, this Court has balanced "the valued right of a defendant to have his trial completed by the particular tribunal summoned to sit in judgment on him," Downum v. United States, 372 U.S. 734, 736, 83 S.Ct. 1033, 1034, 10 L.Ed.2d 100 (1963), against the public interest in insuring that justice is meted out to offenders.
19
Our very first encounter with this situation came in United States v. Perez, 9 Wheat. 579, 6 L.Ed. 165 (1824), in which the trial judge had on his own motion declared a mistrial because of the jury's inability to reach a verdict. The Court said that trial judges might declare mistrials "whenever, in their opinion, taking all the circumstances into consideration, there is a manifest necessity for the act, or the ends of public justice would otherwise be defeated." Id., at 580. In our recent decision in Arizona v. Washington, 434 U.S. 497, 98 S.Ct. 824, 54 L.Ed.2d 717 (1975), we reviewed this Court's attempts to give content to the term "manifest necessity." That case, like Downum, supra,8 arose from a motion of the prosecution for a mistrial, and we noted that the trial court's discretion must be exercised with a careful regard for the interests first described in United States v. Perez. Arizona v. Washington, supra, at 514-516, 98 S.Ct., at 836.
20
Where, on the other hand, a defendant successfully seeks to avoid his trial prior to its conclusion by a motion for mistrial, the Double Jeopardy Clause is not offended by a second prosecution. "[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 a prosecutorial or judicial error." United States v. Jorn, 400 U.S. 470, 485, 91 S.Ct. 547, 557, 27 L.Ed.2d 543 (1971) (opinion of Harlan, J.). Such a motion by the defendant is deemed to be a deliberate election on his part to forgo his valued right to have his guilt or innocence determined before the first trier of fact. "The important consideration, for purposes of the Double Jeopardy Clause, is that the defendant retain primary control over the course to be followed in the event of such err r." United States v. Dinitz, 424 U.S. 600, 609, 96 S.Ct. 1075, 1080, 47 L.Ed.2d 267 (1976). But "[t]he 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." Id., at 611, 96 S.Ct., at 1081.
B
21
We turn now to the relationship between the Double Jeopardy Clause and reprosecution of a defendant who has successfully obtained not a mistrial but a termination of the trial in his favor before any determination of factual guilt or innocence. Unlike the typical mistrial, the granting of a motion such as this obviously contemplates that the proceedings will terminate then and there in favor of the defendant. The prosecution, if it wishes to reinstate the proceedings in the face of such a ruling, ordinarily must seek reversal of the decision of the trial court.
22
The Criminal Appeals Act, 18 U.S.C. § 3731 (1976 ed.), as previously noted, makes appealability of a ruling favorable to the defendant depend upon whether further proceedings upon reversal would be barred by the Double Jeopardy Clause. Jenkins, 420 U.S., at 370, 95 S.Ct., at 1013, held that, regardless of the character of the midtrial termination, appeal was barred if "further proceedings of some sort, devoted to the resolution of factual issues going to the elements of the offense charged, would have been required upon reversal and remand." However, only last Term, in Lee, supra, the Government was permitted to institute a second prosecution after a midtrial dismissal of an indictment. The Court found the circumstances presented by that case "functionally indistinguishable from a declaration of mistrial." 432 U.S., at 31, 97 S.Ct., at 2146. Thus, Lee demonstrated that, at least in some cases, the dismissal of an indictment may be treated on the same basis as the declaration of a mistrial.
23
In the present case, the District Court's dismissal of the first count of the indictment was based upon a claim of preindictment delay and not on the court's conclusion that the Government had not produced sufficient evidence to establish the guilt of the defendant. Respondent Scott points out quite correctly that he had moved to dismiss the indictment on this ground prior to trial, and that had the District Court chosen to grant it at that time the Government could have appealed the ruling under our holding in Serfass v. United States, 420 U.S. 377, 95 S.Ct. 1055, 43 L.Ed.2d 265 (1975). He also quite correctly points out that jeopardy had undeniably "attached" at the time the District Court terminated the trial in his favor; since a successful Government appeal would require further proceedings in the District Court leading to a factual resolution of the issue of guilt or innocence, Jenkins bars the Government's appeal. However, our growing experience with Government appeals convinces us that we must re-examine the rationale of Jenkins in light of Lee, Martin Linen, and other recent expositions of the Double Jeopardy Clause.
IV
24
Our decision in Jenkins was based upon our perceptions of the underlying purposes of the Double Jeopardy Clause, see ante, at 87:
25
" '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 insecurity . . . .' " Jenkins, supra, 420 U.S., at 370, 95 S.Ct., at 1013, quoting Green, 355 U.S., at 187, 78 S.Ct., at 223.
26
Upon fuller consideration, we are now of the view that this language from Green, while entirely appropriate in the circumstances of that opinion, is not a principle which can be expanded to include situations in which the defendant is responsible for the second prosecution. t is quite true that the Government with all its resources and power should not be allowed to make repeated attempts to convict an individual for an alleged offense. This truth is expressed in the three common-law pleas of autrefois acquit, autrefois convict, and pardon, which lie at the core of the area protected by the Double Jeopardy Clause. As we have recognized in cases from United States v. Ball, 163 U.S. 662, 16 S.Ct. 1192, 41 L.Ed. 300 (1896), to Sanabria v. United States, 437 U.S. 54, 98 S.Ct. 2170, 57 L.Ed.2d 43, a defendant once acquitted may not be again subjected to trial without violating the Double Jeopardy Clause.
27
But that situation is obviously a far cry from the present case, where the Government was quite willing to continue with its production of evidence to show the defendant guilty before the jury first empaneled to try him, but the defendant elected to seek termination of the trial on grounds unrelated to guilt or innocence. This is scarcely a picture of an all-powerful state relentlessly pursuing a defendant who had either been found not guilty or who had at least insisted on having the issue of guilt submitted to the first trier of fact. It is instead a picture of a defendant who chooses to avoid conviction and imprisonment, not because of his assertion that the Government has failed to make out a case against him, but because of a legal claim that the Government's case against him must fail even though it might satisfy the trier of fact that he was guilty beyond a reasonable doubt.
28
We have previously noted that "the trial judge's characterization of his own action cannot control the classification of the action." Jorn, 400 U.S., at 478 n. 7, 91 S.Ct., at 554 (opinion of Harlan, J.), citing United States v. Sisson, 399 U.S. 267, 290, 90 S.Ct. 2117, 2129, 26 L.Ed.2d 608 (1970). See also Martin Linen, 430 U.S., at 571, 97 S.Ct., at 1354; Wilson, 420 U.S., at 336, 95 S.Ct., at 1018. Despite respondent's contentions, an appeal is not barred simply because a ruling in favor of a defendant "is based upon facts outside the face of the indictment," id., at 348, 95 S.Ct., at 1024, or because it "is granted on the ground . . . that the defendant simply cannot be convicted of the offense charged," Lee, 432 U.S., at 30, 97 S.Ct., at 2146. Rather, a defendant is acquitted only when "the ruling of the judge, whatever its label, actually represents a resolution [in the defendant's favor], correct or not, of some or all of the factual elements of the offense charged," Martin Linen, supra, 430 U.S., at 571, 97 S.Ct., at 1355. Where the court, before the jury returns a verdict, enters a judgment of acquittal pursuant to Fed.Rule Crim.Proc. 29, appeal will be barred only when "it is plain that the District Court . . . evaluated the Government's evidence and determined that it was legally insufficient to sustain a conviction." 430 U.S., at 572, 97 S.Ct., at 1355.9
29
Our opinion in Burks necessarily holds that there has been a "failure of proof," 437 U.S., at 16, 98 S.Ct., at 2149, requiring an acquittal when the Government does not submit sufficient evidence to rebut a defendant's essentially factual defense of insanity, though it may otherwise be entitled to have its case submitted to the jury. The defense of insanity, like the defense of entrapment, arises from "the notion that Congress could not have intended criminal punishment for a defendant who has committed all the elements of a proscribed offense," United States v. Russell, 411 U.S. 423, 435, 93 S.Ct. 1637, 1644, 36 L.Ed.2d 366 (1973), where other facts established to the satisfaction of the trier of fact provide a legally adequate justification for otherwise criminal acts.10 Such a factual finding does "necessarily establish the criminal defendant's lack of criminal culpability," post, at 106 (BRENNAN, J., dissenting), under the existing law; the fact that "the acquittal may result from erroneous evidentiary rulings or erroneous interpretations of governing legal principles," ibid., affects the accuracy of that determination, but it does not alter its essential character. By contrast, the dismissal of an indictment for preindictment delay represents a legal judgment that a defendant, although criminally culpable, may not be punished because of a supposed constitutional violation.11
30
We think that in a case such as this the defendant, by deliberately choosing to seek termination of the proceedings against him on a basis unrelated to factual guilt or innocence of the offense of which he is accused, suffers no injury cognizable under the Double Jeopardy Clause if the Government is permitted to appeal from such a ruling of the trial court in favor of the defendant. We do not thereby adopt the doctrine of "waiver" of double jeopardy rejected in Green.12 Rather, we conclude that the Double Jeopardy Clause, which guards against Government oppression, does not relieve a defendant from the consequences of his voluntary choice. In Green the question of the defendant's factual guilt or innocence of murder in the first degree was actually submitted to the jury as a trier of act; in the present case, respondent successfully avoided such a submission of the first count of the indictment by persuading the trial court to dismiss it on a basis which did not depend on guilt or innocence. He was thus neither acquitted nor convicted, because he himself successfully undertook to persuade the trial court not to submit the issue of guilt or innocence to the jury which had been empaneled to try him.
31
The reason for treating a trial aborted on the initiative of the trial judge differently from a trial verdict reversed on appeal, for purposes of double jeopardy, is thus described in Jorn, 400 U.S., at 484, 91 S.Ct., at 556 (opinion of Harlan, J.):
32
"[I]n the [second] situation the defendant has not been deprived of his option to go to the first jury, and, perhaps, end the dispute then and there with an acquittal. On the other hand, where the judge, acting without the defendant's consent, aborts the proceeding, the defendant has been deprived of his 'valued right to have his trial completed by a particular tribunal.' "
33
We think the same reasoning applies in pari passu where the defendant, instead of obtaining a reversal of his conviction on appeal, obtains the termination of the proceedings against him in the trial court without any finding by a court or jury as to his guilt or innocence. He has not been "deprived" of his valued right to go to the first jury; only the public has been deprived of its valued right to "one complete opportunity to convict those who have violated its laws." Arizona v. Washington, supra, 434 U.S., at 509, 98 S.Ct., at 832. No interest protected by the Double Jeopardy Clause is invaded when the Government is allowed to appeal and seek reversal of such a midtrial termination of the proceedings in a manner favorable to the defendant.13
34
It is obvious from hat we have said that we believe we pressed too far in Jenkins, the concept of the "defendant's 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). We now conclude that where the defendant himself seeks to have the trial terminated without any submission to either judge or jury as to his guilt or innocence, an appeal by the Government from his successful effort to do so is not barred by 18 U.S.C. § 3731 (1976 ed.).
35
We recognize the force of the doctrine of stare decisis, but we are conscious as well of the admonition of Mr. Justice Brandeis:
36
"[I]n cases involving the Federal Constitution, where correction through legislative action is practically impossible, this Court has often overruled its earlier decisions. The Court bows to the lessons of experience and the force of better reasoning, recognizing that the process of trial and error, so fruitful in the physical sciences, is appropriate also in the judicial function." Burnet v. Coronado Oil & Gas Co., 285 U.S. 393, 406-408, 52 S.Ct. 443, 448, 76 L.Ed. 815 (1932) (dissenting opinion).
37
Here, "the lessons of experience" indicate that Government appeals from midtrial dismissals requested by the defendant would significantly advance the public interest in assuring that each defendant shall be subject to a just judgment on the merits of his case, without "enhancing the possibility that even though innocent he may be found guilty." Green, 355 U.S., at 188, 78 S.Ct., at 223. Accordingly, the contrary holding of United States v. Jenkins is overruled.
38
The judgment of the Court of Appeals is therefore reversed, and the cause is remanded for further proceedings.
39
It is so ordered.
40
Mr. Justice BRENNAN, with whom Mr. Justice WHITE, Mr. Justice MARSHALL, and Mr. Justice STEVENS join, dissenting.
41
On the basis of his evaluation of the trial evidence, the District Judge concluded that unjustifiable preindictment delay had so prejudiced respondent's defense as to preclude consistently with the Due Process Clause—his conviction of the offense alleged in count one of the indictment. He therefore dismissed this count with prejudice. Under the principles of double jeopardy law that controlled until today, further prosecution of respondent under count one would unquestionably be prohibited, and appeal by the United States from the judgment of dismissal thus would not lie. See 18 U.S.C. § 3731 (1976 ed.). The dismissal would, under prior law, have been treated as an "acquittal"—i. e., "a legal determination on the basis of facts adduced at the trial relating to the general issue of the case." United States v. Martin Linen Supply Co., 430 U.S. 564, 575, 97 S.Ct. 1349, 1357, 51 L.Ed.2d 642 (1977) (citations omitted). Indeed, further proceedings would have been barred even if the dismissal could not have been so characterized. United States v. Jenkins, 420 U.S. 358, 95 S.Ct. 1006, 43 L.Ed.2d 250 (1975), established that, even if a midtrial termination does not amount to an "acquittal," an appeal by the United States from the dismissal would not lie if a reversal would, as is of course true in the present case, require "further proceedings of some sort, devoted to the resolution of factual issues going to the elements of the offense charged." Id., at 370, 95 S.Ct., at 1013. This principle was reaffirmed only last Term in Lee v. United States, 432 U.S. 23, 30, 97 S.Ct. 2141, 2146, 53 L.Ed.2d 80 (1977): "Where a midtrial dismissal is granted on the ground, correct or not, that the defendant simply cannot be convicted of the offense charged, . . . further prosecution is barred by the Double Jeopardy Clause."1
42
But the Court today overrules the principle recognized in Jenkins and Lee. While reaffirming that the Government may not appeal from judgments of "acquittal" when reversals would require new trials, the Court holds that appeals by the United States will lie from all other final judgments favorable to the accused. The Court implements this new rule by fashioning a more restrictive definition of "acquittal" than heretofore followed—i. e., "a resolution, correct or not, of some or all of the factual elements of the offense"—and holds, without explanation, that, under that restrictive definition, respondent was not "acquitted" when the District Judge concluded that the facts adduced at trial established that unjustifiable and prejudicial preindictment delay gave respondent a complete defense to the charges contained in count one.
43
I dissent. I would not overrule the rule announced in Jenkins and reaffirmed in Lee. This principle is vital to the implementation of the values protected by the Double Jeopardy Clause; indeed, it follows necessarily from the very rule the Court today reaffirms. The Court's attempt to draw a distinction between "true acquittals" and other final judgments favorable to the accused, quite simply, is unsupportable in either logic or policy. Equally fundamental, the decision today indefensibly adopts an overly restrictive definition of "acquittal." Its definition, moreover, in sharp contrast to the rule of Jenkins, is incapable of principled application. That is vividly evident in the Court's own distinction between a dismissal based on a finding of preaccusation delay violative of due process, and a dismissal based upon evidence adduced at trial in support of a defense of insanity or of entrapment. Ante, at 97-98. Why should the dismissal in the latter cases raise a double jeopardy bar, but the dismissal based on preaccusation delay not also raise that bar to a retrial? The Court ventures no persuasive explanation. Because the thousands of state and federal judges who must apply today's decision to similar "affirmative defenses" are left without meaningful guidance, only confusion can result from today's decision.
44
* The Court reaffirms the "most fundamental rule in the history of double jeopardy jurisprudence": that judgments of acquittal, no matter how erroneous, bar any retrial and thus that, under the proviso in 18 U.S.C. § 3731 (1976 ed.),2 appeals by the United States will not lie when reversal would require a retrial.3 The major premise for the Court's conclusion that the Government may appeal from the final judgment entered for respondent is that there is a difference of constitutional magnitude between "acquittals" and midtrial dismissals, entered on motion of the accused, on grounds "unrelated to factual innocence." This premise is fatally flawed. It, quite simply, misconceives the whole basis for the rule that "acquittals" bar retrials. The reason for this rule is not, as the Court suggests, primarily to safeguard determinations of innocence; rather, it is that a retrial following a final judgment for the accused necessarily threatens intolerable interference with the constitutional policy against multiple trials. Moreover, in terms of the practical operation of the adversary process, there is actually no difference between a so-called "true acquittal" and the termination in this case favorably to respondent.
45
While the Double Jeopardy Clause often has the effect of protecting the accused's interest in the finality of particular favorable determinations, this is not its objective. For the Clause often permits Government appeals from final judgments favorable to the accused. See United States v. Wilson, 420 U.S. 332, 95 S.Ct. 1013, 43 L.Ed.2d 232 (1975) (whether or not final judgment was an acquittal, Government may appeal if reversal would not necessitate a retrial). The purpose of the Clause, which the Court today fails sufficiently to appreciate, is to protect the accused against the agony and risks attendant upon undergoing more than one criminal trial for any single offense. See ibid. A retrial increases the financial and emotional burden that any criminal trial represents for the accused, prolongs the period of the unresolved accusation of wrongdoing, and enhances the risk that an innocent defendant may be convicted.4 See Arizona v. Washington, 434 U.S. 497, at 503-504, 98 S.Ct. 824, at 829, 54 L.Ed.2d 717 (1978); Green v. United States, 355 U.S. 184, 187-188, 78 S.Ct. 221, 223-224, 2 L.Ed.2d 199 (1957). Society's "willingness to limit the Government to a single criminal proceeding to vindicate its very vital interest in enforcement of criminal laws" bespeaks society's recognition of the gross unfairness of requiring the accused to undergo the strain and agony of more than one trial for any single offense. United States v. Jorn, 400 U.S. 470, 479, 91 S.Ct. 547, 554, 27 L.Ed.2d 543 (1971) (opinion of Harlan, J.). Accordingly, the policies of the Double Jeopardy Clause mandate that the Government be afforded but one complete opportunity to convict an accused and that when the first proceeding terminates in a final judgment favorable to the defendant5 any retrial be barred. The rule as to acquittals can only be understood as simply an application of this larger principle.
46
Judgments of acquittal normally result from jury or bench verdicts of not guilty. In such cases, the acquittal represents the factfinder's conclusion that, under the controlling legal principles, the evidence does not establish that the defendant can be convicted of the offense charged in the indictment. But the judgment does not necessarily establish the criminal defendant's lack of criminal culpability; the acquittal may result from erroneous evidentiary rulings or erroneous interpretations of governing legal principles induced by the defense. Yet the Double Jeopardy Clause bars a second trial.
47
In repeatedly holding that the Government may not appeal from an acquittal if a reversal would necessitate a retrial, the Court has, of course, recognized that this rule impairs to some degree the Government's interest in enforcing its criminal laws. Yet, while we have acknowledged that permitting review o acquittals would avoid release of guilty defendants who benefited from "error, irrational behavior, or prejudice on the part of the trial judge," United States v. Martin Linen Supply Co., 430 U.S., at 574, 97 S.Ct., at 1356; seeUnited States v. Wilson, supra, 420 U.S., at 352, 95 S.Ct., at 1026, we nevertheless have consistently held that the Double Jeopardy Clause bars any appellate review in such circumstances. The reason is not that the first trial established the defendant's factual innocence, but rather that the second trial would present all the untoward consequences the Clause was designed to prevent. The Government would be allowed to seek to persuade a second trier of fact of the defendant's guilt, to strengthen any weaknesses in its first presentation, and to subject the defendant to the expense and anxiety of a second trial. See ibid.
48
This basic principle of double jeopardy law has heretofore applied not only to acquittals based on the verdict of the factfinder, but also to acquittals entered by the trial judge, following the presentation of evidence but before verdict, pursuant to Fed.Rule Crim.Proc. 29. See Sanabria v. United States, 437 U.S. 54, 98 S.Ct. 2170, 57 L.Ed.2d 43; United States v. Martin Linen Supply Co., supra; Fong Foo v. United States, 369 U.S. 141, 82 S.Ct. 671, 7 L.Ed.2d 629 (1962). For however egregious the error of the acquittal, the termination favorable to the accused has been regarded as no different from a factfinder's acquittal that resulted from errors of the trial judge. See also Burks v. United States, 437 U.S. 1, 98 S.Ct. 2141, 57 L.Ed.2d 1. These cases teach that the Government's means of protecting its vital interest in convicting the guilty is its participation as an adversary at the criminal trial where it has every opportunity to dissuade the trial court from committing erroneous rulings favorable to the accused.
49
Jenkins, was simply a necessary and logical extension of the rule that an acquittal bars any further trial proceedings. Jenkins recognized that an acquittal can never represent a determination that the criminal defendant is innocent in any absolute sense; the bar to a retrial following acquittal does not and indeed could not—rest on any assumption that the finder of fact has applied the correct legal principles to all the admissible evidence and determined that the defendant was factually innocent of the offense charged. The reason further prosecution is barred following an acquittal, rather, is that the Government has been afforded one complete opportunity to prove a case of the criminal defendant's culpability and, when it has failed for any reason to persuade the court not to enter a final judgment favorable to the accused, the constitutional policies underlying the ban against multiple trials become compelling. Thus, Jenkins and Lee recognized that it mattered not whether the final judgment constituted a formal "acquittal." What is critical is whether the accused obtained, after jeopardy attached, a favorable termination of the charges against him. If he did, no matter how erroneous the ruling, the policies embodied in the Double Jeopardy Clause require the conclusion that "further proceedings . . . devoted to the resolution of factual issues going to the elements of the offense charged" are barred. Jenkins, supra, 420 U.S., at 370, 95 S.Ct., at 1013; see Lee, supra, 432 U.S., at 30, 97 S.Ct., at 2146.
B
50
The whole premise for today's retreat from Jenkins and Lee, of course, is the Court's new theory that a criminal defendant who seeks to avoid conviction on a "ground unrelated to factual innocence" somehow stands on a different constitutional footing from a defendant whose participation in his criminal trial creates a situation in which a judgment of acquittal has to be entered. This premise is simply untenable. The rule prohibiting retrials following acquittals does not and could not rest on a conclusion that the accused was factually innocent i any meaningful sense. If that were the basis for the rule, the decisions that have held that even egregiously erroneous acquittals preclude retrials, see, e. g., Fong Foo v. United States, supra (acquittal entered after three of many prosecution witnesses had testified); Sanabria v. United States, 437 U.S. 54, 98 S.Ct. 2170, 57 L.Ed.2d 43, were erroneous.
51
It is manifest that the reasons that bar a retrial following an acquittal are equally applicable to a final judgment entered on a ground "unrelated to factual innocence." The heavy personal strain of the second trial is the same in either case. So too is the risk that, though innocent, the defendant may be found guilty at a second trial. If the appeal is allowed in either situation, the Government will, following any reversal, not only obtain the benefit of the favorable appellate ruling but also be permitted to shore up any other weak points of its case and obtain all the other advantages at the second trial that the Double Jeopardy Clause was designed to forbid.
52
Moreover, the Government's interest in retrying a defendant simply cannot vary depending on the ground of the final termination in the accused's favor. I reject as plainly erroneous the Court's suggestion that final judgments not based on innocence deprive the public of "its valued right to 'one complete opportunity to convict those who have violated its laws,' " ante, at 100, quoting Arizona v. Washington, 434 U.S., at 509, 98 S.Ct., at 832,6 and therefore differ from "true acquittals." The Government has the same "complete opportunity" in either situation by virtue of its participation as an adversary at the criminal trial.7
53
Equally significant, the distinction between the two is at best purely formal. Many acquittals are the consequence of rulings of law made on the accused's motion that are not related to the question of his factual guilt or innocence: e. g., a ruling on the law r specting the scope of the offense or excluding reliable evidence. Sanabria v. United States, 437 U.S. 437 U.S. 54, 98 S.Ct. 2170, 57 L.Ed.2d 43, illustrates the point.
54
In Sanabria, the District Court, acting on the defendant's motions, made a series of erroneous legal rulings which began with an erroneous construction of the indictment and culminated in the exclusion of most of the evidence of defendant's guilt. The trial court then granted defendant's motion for a judgment of acquittal on the ground that the remaining evidence was insufficient. Sanabria held that the midtrial termination of the prosecution erected an absolute bar to any further proceedings against the defendant, and we reached that result even though the rulings which led to the acquittal were purely legal determinations, unrelated to any question of defendant's factual guilt, and had been precipitated entirely by the defendant's "voluntary choice" to seek a narrow construction of his indictment.
55
Here the legal ruling that the Court characterizes as unrelated to the defendant's factual guilt itself terminated the prosecution with prejudice. In Sanabria, after the District Court rendered the two erroneous rulings that excluded most of the relevant evidence of defendant's guilt, it remained for the trial court to take the pro forma step of granting the defendant's motion for a judgment of acquittal. Surely, this difference between the cases should not possess constitutional significance. By holding that it does, the Court suggests that the present case would have been decided differently if the trial court had remedied the due process violation by excluding all the Government's evidence on count one and then entering an acquittal pursuant to Rule 29. Sanabria simply confirms that the distinction the Court today draws is wholly arbitrary, bearing no conceivable relationship to the policies protected by the Double Jeopardy Clause.
II
56
The Court's definition of "acquittal" compounds the damage that repudiation of Jenkins and Lee has done to the fabric of double jeopardy law. Not only is this definition unduly restrictive, it is literally incapable of principled application. The Court's application of its definition to the facts of this case proves the point.
57
The doctrine of preindictment delay, like a host of other principles and policies of the law—e. g., entrapment, insanity, right to speedy trial, statute of limitations—operates to preclude the imposition of criminal liability on defendants, notwithstanding a showing that they committed criminal acts. Like these other doctrines, the question whether preindictment delay violates due process of law cannot ordinarily be considered apart from the factual development at trial since normally only the " '[e]vents of the trial [can demonstrate] actual prejudice.' " United States v. Lovasco, 431 U.S. 783, 789, 97 S.Ct. 2044, 2048, 52 L.Ed.2d 752 (1977), quoting United States v. Marion, 404 U.S. 307, 326, 92 S.Ct. 455, 466, 30 L.Ed.2d 468 (1971); see United States v. MacDonald, 435 U.S. 850, 858-859, 98 S.Ct. 1547, 1551-1552, 56 L.Ed.2d 18 (1978).
58
Here, therefore, the District Court, quite properly, deferred consideration of the respondent's pretrial motion to dismiss for preaccusation delay until trial. At the close of the evidence, respondent renewed his motion. The District Court recognized that there was sufficient evidence of guilt to permit submission of count one to the jury, but granted the motion as to this count because, evaluating the facts adduced at trial, the court found that the delay between the offense alleged and respondent's indictment had been unjustifiable and had so prejudiced respondent's ability to present his defense as to constitute a denial of due process of law.
59
A critical feature of today's holding appears to be the Court's definition of acquittal as " 'a resolution [in the defendant's favor], correct or not, of some or all of the factual elemen § of the offense charged,' " ante, at 97, quoting United States v. Martin Linen Supply Co., 430 U.S., at 571, 97 S.Ct., at 1354. But this definition, which is narrower than the traditional one, enjoys no significant support in our prior decisions. The language quoted from Martin Linen Supply Co. was tied to the issue in that case and was never intended to serve as an all-encompassing definition of acquittal for all purposes. Rather, Martin Linen Supply referred generally to "acquittal" as "a legal determination on the basis of facts adduced at the trial relating to the general issue of the case," id., at 575, 97 S.Ct., at 1357 (citations omitted), and this is the accepted definition. See Serfass v. United States, 420 U.S. 377, 393, 95 S.Ct. 1055, 1065, 43 L.Ed.2d 265 (1975), quoting United States v. Sisson, 399 U.S. 267, 290 n. 19, 90 S.Ct. 2117, 2130, 26 L.Ed.2d 608 (1970). This definition, moreover, clearly encompasses rulings pertaining to all "affirmative defenses" that depend on the factual development at trial.
60
The traditional definition of "acquittal" obviously is responsive to the values protected by the Double Jeopardy Clause. While it perhaps might not be objectionable to permit retrial of a defendant whose first trial was terminated on the basis of a midtrial ruling on a motion that could—because it did not depend upon the facts adduced at trial—have been raised before jeopardy attached, see Serfass v. United States, supra, 420 U.S., at 394, 95 S.Ct., at 1065,8 it would be intolerable to permit the retrial of a defendant whose first prosecution ended on the basis of a ruling—like the one in the present case—which could only be made after the factual development at trial. Notably, the Court neither explains why it chooses to reject the more traditional definition of "acquittal" nor attempts to justify its more restrictive definition in terms of the constitutional policy against multiple trials.
61
But I will not dwell further on this point. As the Court opinion itself demonstrates, what is perhaps as important as the actual definition is how it is applied. The pertinent question, thus, is one the Court never addresses: Why, for purposes of its new definition of "acquittal," is not the fact vel non of preindictment delay one of the "factual elements of the offense charged"? The Court plainly cannot answer that preindictment delay is not referred to in the statutory definition of the offense charged in count one, cf. Patterson v. New York, 432 U.S. 197, 97 S.Ct. 2319, 53 L.Ed.2d 281 (1977), for it states that dismissals based on the defenses of insanity9 and entrapment neither of which is bound up with the statutory definition of federal crimes—will constitute "acquittals." Ante, at 97-98.
62
How can decisions based on the trial evidence that a defendant is ' not guilty by reason of insanity" or "not guilty by reason of entrapment" erect a double jeopardy bar, and a decision equally based on evaluation of the trial evidence—that the defendant is "not guilty by reason of preaccusation delay" not also prohibit further prosecution? None of these defenses is bound up in the definition of a crime, and the availability of each depends on the factual development at trial. More fundamentally, to permit a retrial following an appellate court's reversal of a judgment entered on any of these grounds presents all the evils the Double Jeopardy Clause was designed to prevent. The Court offers no satisfactory explanation for the difference in treatment. The suggestion that determinations concerning insanity and entrapment are "factual" whereas dismissals of indictments for preindictment delay represent "legal judgments," see ante at 98, is simply untenable. Consideration of all three defenses requires the application of legal standards to the evidence adduced at trial, and the most likely ground for reversal and reprosecution following the entry of a final judgment favorable to the accused on such grounds would be an appellate court's conclusion that the trial court applied an erroneous legal test. The question the Court fails to address, therefore, is why an egregiously erroneous dismissal on entrapment grounds—e. g., a ruling in a federal trial that a defendant has been entrapped as a matter of law because it had been shown that the Government had supplied the contraband the defendant had been charged with selling, cf. Hampton v. United States, 425 U.S. 484, 96 S.Ct. 1646, 48 L.Ed.2d 113 (1976)—should erect a double jeopardy bar but not a possibly erroneous dismissal on the ground of preaccusation delay. The Court's observation that factual defenses of insanity and entrapment provide "legal justifications for otherwise criminal acts"—and is unlike the doctrine of preindictment delay, which is intended to protect the integrity of the trial process reflects common legal parlance but in no wise explains why the two classes of dismissals should have different double jeopardy consequences.
63
Whether or not the Court's ipse dixit concerning the consequences of a ruling of unlawful preaccusation delay is defensible, the enormous practical problems that today's decision portends are very clear. A particularly appealing virtue of the Jenkins and Lee principle—in addition, of course, to its protection of constitutional values—was its simplicity. Any midtrial order contemplating an end to all prosecution of the accused would automatically erect a double jeopardy bar to a retrial. Under today's decision, the thousands of state and federal courts will be required to decide, with only minimal guidance from this Court, the question of the double jeopardy consequences of all favorable terminations of criminal proceedings on the basis of affirmative defenses. The only guidance the Court offers is its suggestion that defenses which provide legal justifications for otherwise criminal acts will erect double jeopardy bars whereas those defenses that arise from unlawful or unconstitutional Government acts will not. Consideration of the defense of entrapment illustrates how difficult the Court's decision will be to apply. To the extent the defense applies when there has been a showing the defendant was not "predisposed" to commit a criminal act, it perhaps does provide a "legal justification." But the defense of entrapment, in many jurisdictions, see Park, The Entrapment Controversy, 60 Minn.L.Rev. 163, 171-176 (1976), is a device to deter police officials from engaging in reprehensible law enforcement techniques. Is the entrapment defense to erect a double jeopardy bar in such jurisdictions? Are the double jeopardy consequences to depend upon the appellate court's characterization of the operation of the defense in the particular case before it? And what of other traditional factual defenses, which a e routinely submitted to the jury and which could be the basis for Rule 29 motions: e. g., the statute of limitations?10 Ironically, it seems likely that, when all is said and done, there will be few instances indeed in which defenses can be deemed unrelated to factual innocence. If so, today's decision may be limited to disfavored doctrines like preaccusation delay. See generally United States v. Lovasco, 431 U.S. 783, 97 S.Ct. 2044, 52 L.Ed.2d 752 (1977).
64
It is regrettable that the Court should introduce such confusion in an area of the law that, until today, had been crystal clear. Its introduction might be tolerable if necessary to advance some important policy or to serve values protected by the Double Jeopardy Clause, but that manifestly is not the case. Rather, today's decision fashions an entirely arbitrary distinction that creates precisely the evils that the Double Jeopardy Clause was designed to prevent. I would affirm the judgment of the Court of Appeals.
1
A thorough account of the enactment and development of the Act is set out in Mr. Justice Harlan's opinion for the Court in United States v. Sisson, 399 U.S. 267, 291-296, 90 S.Ct. 2117, 2130-2133, 26 L.Ed. 608 (1970).
2
The rule established in Wilson and Jenkins was later described in the following terms:
"[D]ismissals (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." Lee v. United States, 432 U.S. 23, 36, 97 S.Ct. 2141, 2149, 53 L.Ed.2d 80 (1977) (REHNQUIST, J., concurring).
3
The Government contends here that the District Court in Jenkins entered a judgment of acquittal in favor of Jenkins, but our opinion in that case recognized that it could not be said with certainty whether this was the case. See Jenkins, 420 U.S., at 367, 95 S.Ct., at 1011-1012.
4
Two years later, review was provided for all "infamous" crimes. Act of Mar. 3, 1891, ch. 517, § 5, 26 Stat. 827.
5
The Court thereby rejected the English rule set out in Vaux's Case, 4 Co.Rep. 44a, 76 Eng.Rep. 992 (K.B. 1590), which refused to recognize a plea of autrefois acquit where the initial indictment had been insufficient to support a conviction. Again, this ruling provided a greater measure of protection for criminal defendants than had been known at the time of the adoption of the Constitution. A contrary ruling would have altered this Court's task in such cases as Lee v. United States, 432 U.S. 23, 97 S.Ct. 2141, 53 L.Ed.2d 80 (1977), and Illinois v. Somerville, 410 U.S. 458, 93 S.Ct. 1066, 35 L.Ed.2d 425 (1973).
6
In so doing, the Court rejected the contention of Mr. Justice Holmes in dissent that "there is no rule that a man may not be tried twice in the same case." 195 U.S., at 134, 24 S.Ct., at 806. He went on to say:
"If a statute should give the right to take exceptions to the Government, I believe it would be impossible to maintain that the prisoner would be protected by the Constitution from being tried again. He no more would be put in jeopardy a second time when retried because of a mistake of law in his favor, than he would be when retried for a mistake that did him harm." Id., at 135, 24 S.Ct., at 807.
Mr. Justice Holmes' concept of continuing jeopardy would have greatly simplified the matter of Government appeals, but it has never been accepted by a majority of this Court. See Jenkins, 420 U.S., at 358, 95 S.Ct., at 1006.
7
In Jenkins we had assumed that a judgment of acquittal could be appealed where no retrial would be needed on remand:
"When this principle is applied to the situation where the jury returns a verdict of guilt but the trial court thereafter enters a judgment of acquittal, an appeal is permitted. In that situation a conclusion by an appellate court that the judgment of acquittal was improper does not require a criminal defendant to submit to a second trial; the error can be corrected on remand by the entry of a judgment on the verdict." 420 U.S., at 365, 95 S.Ct., at 1011.
Despite the Court's heavy emphasis on the finality of an acquittal in Martin Linen and Sanabria v. United States, 437 U.S. 54, 98 S.Ct. 2170, 57 L.Ed.2d 43, neither decision explicitly repudiates this assumption. Sanabria, at 75, 98 S.Ct., at 2184; Martin Linen, 430 U.S., at 569-570, 97 S.Ct., at 1353-1354.
8
Downum, in 1963, was the first case in which this Court actually reversed a subsequent conviction because of an improper declaration of a mistrial. This, too, provided greater protection for a defendant than was available at the common law. Although English precedents clearly disapproved of unnecessary mistrials, see generally Arizona v. Washington, 434 U.S., at 506-508, and nn. 21-23, 98 S.Ct., at 831, the English rule at the time of the adoption of the Constitution was, as it remains today, that nothing short of a final judgment would bar further prosecution. "The fact that the jury was discharged without giving a verdict cannot be a bar to a subsequent indictment." 11 Halsbury's Laws of England, Criminal Law, Evidence, and Procedure ¶ 242 (4th ed. 1976).
9
In Jenkins, which was a bench trial, we had difficulty, as did the Court of Appeals in that case, in characterizing the precise import of the District Court's order dismissing the indictment. The analysis that governed our disposition turned not on whether the defendant had been acquitted but on whether the proceeding had terminated "in the defendant's favor," 420 U.S., at 365 n. 7, 95 S.Ct., at 1011, and whether "further proceedings of some sort, devoted to the resolution of factual issues going to the elements of the offense charged, would have been required upon reversal and remand," id., at 370, 95 S.Ct., at 1013. We thus had no occasion to determine whether the District Court simply had made "an erroneous interpretation of the controlling law," id., at 365 n. 7, 95 S.Ct., at 1011, or whether it had "resolved [controlling] issues of fact in favor of the respondent," id., at 367, 95 S.Ct., at 1012; see id., at 362 n. 3, 95 S.Ct., at 1009.
10
The defense of insanity in a federal criminal prosecution was first recognized by this Court in Davis v. United States, 160 U.S. 469, 16 S.Ct. 353, 40 L.Ed. 499 (1895). Mr. Justice Harlan's opinion for the Court construed federal law in light of the larger body of common law in other jurisdictions, and concluded:
"One who takes human life cannot be said to be actuated by malice aforethought, or to have deliberately intended to take life, or to have 'a wicked, depraved, and malignant heart,' or a heart 'regardless of society duty and fatally bent on mischief' unless at the time he had sufficient mind to comprehend the criminality or the right and wrong of such an act." Id., at 485, 16 S.Ct., at 357.
While Congress has never made explicit statutory provision for this affirmative defense or any other, it has recognized the validity of the defense by regulating its use in federal prosecutions. Fed.Rule Crim.Proc. 12.2(a).
11
While an acquittal on the merits by the trier of fact "can never represent a determination that the criminal defendant is innocent in any absolute sense," post, at 107 (BRENNAN, J., dissenting), a defendant who has been released by a court for reasons required by the Constitution or laws, but which are unrelated to factual guilt or innocence, has not been determined to be innocent in any sense of that word, absolute or otherwise. In other circumstances, this Court has had no difficulty in distinguishing between those rulings which relate to "the ultimate question of guilt or innocence" and those which serve other purposes. Stone v. Powell, 428 U.S. 465, 490, 96 S.Ct. 3037, 3050, 49 L.Ed.2d 1067 (1976). We reject the contrary implication of the dissent that this Court or other courts are incapable of distinguishing between the latter and the former.
12
The original jury in that case had found the defendant guilty of second-degree murder, but did not find him guilty of first-degree murder. The Court held that his appeal did not waive his objection to a second prosecution for first-degree murder, but it was careful to reaffirm the holding of United States v. Ball, 163 U.S. 662, 16 S.Ct. 1192, 41 L.Ed. 300 (1896), that "a defendant can be tried a second time for an offense when his prior conviction for that same offense [has] been set aside on appeal." 355 U.S., at 189, 78 S.Ct., at 224.
13
We should point out that it is entirely possible for a trial court to reconcile the public interest in the Government's right to appeal from an erroneous conclusion of law, with the defendant's interest in avoiding a second prosecution. In United States v. Wilson,, 420 U.S. 332, 95 S.Ct. 1013, 43 L.Ed.2d 232 (1975), the court permitted the case to go to the jury, which returned a verdict of guilty, but it subsequently dismissed the indictment for preindictment delay on the basis of evidence adduced at trial. Most recently in United States v. Ceccolini, 435 U.S. 268, 98 S.Ct. 1054, 55 L.Ed.2d 268 (1978), we described similar action with approval: "The District Court had sensibly first made its finding on the factual question of guilt or innocence, and then ruled on the motion to suppress; a reversal of these rulings would require no further proceedings in the District Court, but merely a reinstatement of the finding of guilt." Id., at ----, 98 S.Ct., at 1057. Accord, United States v. Kopp, 429 U.S. 121, 97 S.Ct. 400, 50 L.Ed.2d 336 (1976); United States v. Rose, 429 U.S. 5, 97 S.Ct. 26, 50 L.Ed.2d 5 (1976); United States v. Morrison, 429 U.S. 1, 97 S.Ct. 24, 50 L.Ed.2d 1 (1976).
We, of course, do not suggest that a midtrial dismissal of a prosecution, in response to a defense motion on grounds unrelated to guilt or innocence, is necessarily improper. Such rulings may be necessary to terminate proceedings marred by fundamental error. But where a defendant prevails on such a motion, he takes the risk that an appellate court will reverse the trial court.
1
See also Finch v. United States, 433 U.S. 676, 97 S.Ct. 2909, 53 L.Ed.2d 1048 (1977) (applying rule of Jenkins to dismissal entered on basis of stipulated facts); United States v. Martin Linen Supply Co., 430 U.S. 564, 7 S.Ct. 1349, 51 L.Ed.2d 642 (1977).
2
Section 3731 provides that the United States may obtain appellate review of a "dismissal" "except that no appeal shall lie where the double jeopardy clause of the United States Constitution prohibits further prosecution."
3
The Court cites with approval Sanabria v. United States, 437 U.S. 54, 98 S.Ct. 2170, 57 L.Ed.2d 43; United States v. Martin Linen Supply Co., supra; Fong Foo v. United States, 369 U.S. 141, 82 S.Ct. 671, 7 L.Ed.2d 629 (1962); Kepner v. United States, 195 U.S. 100, 2 S.Ct. 797, 49 L.Ed. 114 (1904); and United States v. Ball, 163 U.S. 662, 16 S.Ct. 1192, 41 L.Ed. 300 (1896).
4
There are a number of reasons a retrial enhances the risk that "even though innocent, [the criminal defendant] may be found guilty." Green v. United States, 355 U.S. 184, 188, 78 S.Ct. 221, 223, 2 L.Ed.2d 199 (1957). A retrial affords the Government the opportunity to re-examine the weaknesses of its first presentation in order to strengthen the second. And, as would any litigant, the Government has been known to take advantage of this opportunity. It is not uncommon to find that prosecution witnesses change their testimony, not always subtly, at second trials. See Arizona v. Washington, 434 U.S. 497, 504 n. 14, 98 S.Ct. 824, 829, 54 L.Ed.2d 717 (1978), quoting Carsey v. United States, 129 U.S.App.D.C. 205, 208-209, 392 F.2d 810, 813-814 (1967).
5
By "final judgment favorable to the accused," I am, of course, referring to an order terminating all prosecution of the defendant on the ground he "simply cannot be convicted of the offense charged." See Lee v. United States, 432 U.S. 23, 30, 97 S.Ct. 2141, 2146, 53 L.Ed.2d 80 (1977).
6
Similarly unpersuasive is the Court's suggestion that its holding is supported by the well-recognized rules that a criminal defendant may twice be tried for the same offense if he either successfully moved for a mistrial at the first trial, see Lee, supra; United States v. Dinitz, 424 U.S. 600, 96 S.Ct. 1075, 47 L.Ed.2d 267 (1976), or succeeded in having a conviction set aside on a ground other than the insufficiency of the evidence. See United States v. Ball, 163 U.S. 662, 16 S.Ct. 1192, 41 L.Ed. 300 (1896). What distinguishes these situations, of course, is that neither involved a final judgment entered for the accused and that in both the Government could not be said to have had a complete opportunity to convict the accused.
7
The Court's suggestion that intervening decisions have somehow undermined Jenkins simply will not wash. Although it is quite true that the author of the Court opinion has stated that he understood Jenkins to embrace a rule that any midtrial termination that is labelled a "dismissal" erects a double jeopardy bar, see ante, at 86 n. 2, quoting Lee, 432 U.S., at 36, 97 S.Ct., at 2149. (REHNQUIST, J., concurring), no Court opinion has adopted the position that the label attached to a trial court's ruling could be determinative. Indeed, since Serfass v. United States, 420 U.S. 377, 392, 95 S.Ct. 1055, 1064, 43 L.Ed.2d 265 (1975), which was decided the week after Jenkins, explicitly provides that labels are not to have such talismanic significance, the unanimous Court in Jenkins could scarcely have contemplated that it had announced such a mechanical formula.
Thus, the Court's suggestion, see ante, at 94, that Lee, which held that a termination that was labeled a "dismissal" did not erect a double jeopardy bar, could have undermined Jenkins is unpersuasive on its face. In Lee, we treated the dismissal as the equivalent of a mistrial because both the trial judge and the parties had so regarded it. See 432 U.S., at 29, 97 S.Ct., at 2145.
8
In Serfass, we reserved decision on the question whether a defendant who was afforded an opportunity to obtain a determination of a legal defense prior to trial but who nevertheless knowingly allowed himself to be placed in jeopardy before raising the defense could claim the protections of the Double Jeopardy Clause. 420 U.S., at 394, 95 S.Ct., at 1065.
9
A contrary position would not only be inconsistent with Burks v. United States, 437 U.S. 1, 98 S.Ct. 2141, 57 L.Ed.2d 1, but would also have untoward consequences for criminal defendants. The premise of such a ruling would necessarily be that a criminal defendant has no legitimate interest in protecting the finality of a verdict of not guilty by reason of insanity. It would then follow that there could be appellate review not only of all directed verdicts of not guilty by reason of insanity, but also of all jury verdicts that had been preceded by a prior finding of guilt of the statutory offense. The implications of such a holding would be particularly significant in jurisdictions providing for bifurcated determinations of guilt and sanity.
10
In any case in which the date upon which the defendant committed the crime is disputed and may have been outside the statute of limitations provided by law, a trial judge could, and probably would, submit this question to the jury along with the general issue. Similarly, in any case in which the evidence adduced at trial revealed that the defendant had committed the criminal act outside the limitation period, the defendant would move for a "directed verdict."
| 01
|
437 U.S. 1
98 S.Ct. 2141
57 L.Ed.2d 1
David Wayne BURKS, Petitioner,v.UNITED STATES.
No. 76-6528.
Argued Nov. 28, 1977.
Decided June 14, 1978.
Syllabus
Petitioner, in support of his insanity defense to a bank robbery charge, offered expert testimony, and the Government offered expert and lay testimony in rebuttal. Before the case was submitted to the jury, the District Court denied a motion for acquittal. The jury found petitioner guilty as charged, and thereafter his motion for a new trial on the ground that the evidence was insufficient to support the verdict was denied. The Court of Appeals, holding that the Government had failed to rebut petitioner's proof as to insanity, reversed and remanded to the District Court to determine whether a directed verdict of acquittal should be entered or a new trial ordered, citing, inter alia, as authority for such a remand 28 U.S.C. § 2106, which authorizes federal appellate courts to remand a cause and "direct the entry of such appropriate judgment, decree, or order, or require such further proceedings to be had as may be just under the circumstances." Held: The Double Jeopardy Clause of the Fifth Amendment precludes a second trial once the reviewing court has found the evidence insufficient to sustain the jury's verdict of guilty, and the only "just" remedy available for that court under 28 U.S.C. § 2106 is the entry of a judgment of acquittal. Pp. 5-18.
(a) For the purposes of determining whether the Double Jeopardy Clause precludes a second trial after the reversal of a conviction, a reversal based on insufficiency of evidence is to be distinguished from a reversal for trial error. In holding the evidence insufficient to sustain guilt, an appellate court determines that the prosecution has failed to prove guilt beyond a reasonable doubt. Given the requirements for entry of a judgment of acquittal, to permit a second trial would negate the purpose of the Double Jeopardy Clause to forbid a second trial in which the prosecution would be afforded another opportunity to supply evidence that it failed to muster in the first trial. Pp. 15-17.
(b) It makes no difference that a defendant has sought a new trial as one of his remedies, or even as the sole remedy, and he does not waive his right to a judgment of acquittal by moving for a new trial. Bryan v. United States, 338 U.S. 552, 70 S.Ct. 317, 94 L.Ed. 335; Sapir v. United States, 348 U.S. 373; Yates v. United States, 354 U.S. 298, 77 S.Ct. 1064, 1 L.Ed.2d 1356; and Forman v. United States, 361 U.S. 416, 80 S.Ct. 481, 4 L.Ed.2d 412, overruled to the extent that they suggest such a waiver. Pp. 17-18.
547 F.2d 968, reversed and remanded.
Bart C. Durham, III, Nashville, Tenn., for petitioner.
Frank H. Easterbrook, Washington, D. C., for respondent, pro hac vice, by special leave of Court.
Mr. Chief Justice BURGER delivered the opinion of the Court.
1
We granted certiorari to resolve the question of whether an accused may be subjected to a second trial when conviction in a prior trial was reversed by an appellate court solely for lack of sufficient evidence to sustain the jury's verdict.
2
* Petitioner Burks was tried in the United States District Court for the crime of robbing a federally insured bank by use of a dangerous weapon, a violation of 18 U.S.C. § 2113(d) (1976 ed.). Burks' principal defense was insanity. To prove this claim petitioner produced three expert witnesses who testified, albeit with differing diagnoses of his mental condition, that he suffered from a mental illness at the time of the robbery, which rendered him substantially incapable of conforming his conduct to the requirements of the law. In rebuttal the Government offered the testimony of two experts, one of whom testified that although petitioner possessed a character disorder, he was not mentally ill. The other prosecution witness acknowledged a character disorder in petitioner, but gave a rather ambiguous answer to the question of whether Burks had been capable of conforming his conduct to the law. Lay witnesses also testified for the Government, expressing their opinion that petitioner appeared to be capable of normal functioning and was sane at the time of the alleged offense.
3
Before the case was submitted to the jury, the court denied a motion for a judgment of acquittal. The jury found Burks guilty as charged. Thereafter, he filed a timely motion for a new trial, maintaining, among other things, that "[t]he evidence was insufficient to support the verdict." The motion was denied by the District Court, which concluded that petitioner's challenge to the sufficiency of the evidence was "utterly without merit."1
4
On appeal petitioner narrowed the issues by admitting the affirmative factual elements of the charge against him, leaving only his claim concerning criminal responsibility to be resolved. With respect to this point, the Court of Appeals agreed with petitioner's claim that the evidence was insufficient to support the verdict and reversed his conviction. 547 F.2d 968 (CA6 1976). The court began by noting that "the government has the burden of proving sanity [beyond a reasonable doubt] once a prima facie defense of insanity has been raised."2 Id., at 969. Petitioner had met his obligation, the court indicated, by presenting "the specific testimony of three experts with unchallenged credentials." Id., at 970. But the reviewing court went on to hold that the United States had not fulfilled its burden since the prosecution's evidence with respect to Burks' mental condition, even when viewed in the light most favorable to the Government, did not "effectively rebu[t]" petitioner's proof with respect to insanity and criminal responsibility. Ibid. In particular, the witnesses presented by the prosecution failed to "express definite opinions on the precise questions which this court has identified as critical in cases involving the issue of [in]sanity." Ibid.
5
At this point, the Court of Appeals, rather than terminating the case against petitioner, remanded to the District Court "for a determination of whether a directed verdict of acquittal should be entered or a new trial ordered." Ibid. Indicating that the District Court should choose the appropriate course "from a balancing of the equities," ibid., the court explicitly adopted the procedures utilized by the Fifth Circuit in United States v. Bass, 490 F.2d 846, 852-853 (1974), "as a guide" to be used on remand:
6
"[W]e reverse and remand the case to the district court where the defendant will be entitled to a directed verdict of acquittal unless the government presents sufficient additional evidence to carry its burden on the issue of defendant's sanity. As we noted earlier, the question of sufficiency of the evidence to make an issue for the jury on the defense of insanity is a question of law to be decided by the trial judge. . . . If the district court, sitting without the presence of the jury, is satisfied by the government's presentation, it may order a new trial. . . . Even if the government presents additional evidence, the district judge may refuse to order a new trial if he finds from the record that the prosecution had the opportunity fully to develop its case or in fact did so at the first trial." The Court of Appeals assumed it had the power to order this "balancing" remedy by virtue of the fact that Burks had explicitly requested a new trial. As authority for this holding the court cited, inter alia, 28 U.S.C. § 2106,3 and Bryan v. United States, 338 U.S. 552, 70 S.Ct. 317, 94 L.Ed. 335 (1950). 547 F.2d, at 970.
II
7
The United States has not cross-petitioned for certiorari on the question of whether the Court of Appeals was correct in holding that the Government had failed to meet its burden of proof with respect to the claim of insanity. Accordingly, that issue is not open for review here. Given this posture, we are squarely presented with the question of whether a defendant may be tried a second time when a reviewing court has determined that in a prior trial the evidence was insufficient to sustain the verdict of the jury.4
8
Petitioner's argument is straightforward. He contends that the Court of Appeals' holding was nothing more or less than a decision that the District Court had erred by not granting his motion for a judgment of acquittal. By implication, he argues, the appellate reversal was the operative equivalent of a district court's judgment of acquittal, entered either before or after verdict. Petitioner points out, however, that had the District Court found the evidence at the first trial inadequate, as the Court of Appeals said it should have done, a second trial would violate the Double Jeopardy Clause of the Fifth Amendment. Therefore, he maintains, it makes no difference that the determination of evidentiary insufficiency was made by a reviewing court since the double jeopardy considerations are the same, regardless of which court decides that a judgment of acquittal is in order.
9
The position advanced by petitioner has not been embraced by our prior holdings. Indeed, as the Court of Appeals here recognized, Bryan v. United States, supra, would appear to be contrary. In Bryan the defendant was convicted in the District Court for evasion of federal income tax laws. Bryan had moved for a judgment of acquittal both at the close of the Government's case and when all of the evidence had been presented. After the verdict was returned he renewed these motions, but asked—in the alternative—for a new trial. These motions were all denied. The Court of Appeals reversed the conviction on the specific ground that the evidence was insufficient to sustain the verdict and remanded the case for a new trial. Certiorari was then granted to determine whether the Court of Appeals had properly ordered a new trial, or whether it should have entered a judgment of acquittal. In affirming the Court of Appeals, this Court decided, first, that the Court of Appeals had statutory authority, under 28 U.S.C. § 2106, to direct a new trial. But Bryan had also maintained that notwithstanding § 2106 a retrial was prohibited by the Double Jeopardy Clause, a contention which was dismissed in one paragraph:
10
"Petitioner's contention that to require him to stand trial again would be to place him twice in jeopardy is not persuasive. He sought and obtained the reversal of his conviction assigning a number of alleged errors on appeal, including denial of his motion for judgment of acquittal. '. . . [W]here the accused successfully seeks review of a conviction, there is no double jeopardy upon a new trial.' Francis v. Resweber, 329 U.S. 459, 462, 67 S.Ct. 374, 375, 91 L.Ed. 422. See Trono v. United States, 199 U.S. 521, 533-534, 26 S.Ct. 121, 124, 50 L.Ed. 292." 338 U.S., at 560, 70 S.Ct., at 321, 94 L.Ed. 335.
11
Five years after Bryan was decided, a similar claim of double jeopardy was presented to the Court in Sapir v. United States, 348 U.S. 373, 75 S.Ct. 422, 99 L.Ed. 426 (1955). Sapir had been convicted of conspiracy by a jury in the District Court. After the trial court denied a motion for acquittal, he obtained a reversal in the Court of Ap eals, which held that the motion should have been granted since the evidence was insufficient to sustain a conviction. In a brief per curiam opinion, this Court, without explanation, reversed the Court of Appeals' decision to remand the petitioner's case for a new trial.
12
Concurring in the Sapir judgment, which directed the dismissal of the indictment, Mr. Justice Douglas indicated his basis for reversal:
13
"The correct rule was stated in Kepner v. United States, 195 U.S. 100, at 130, 24 S.Ct. 797, at page 805, 49 L.Ed. 114, 'It is, then, the settled law of this court that former jeopardy includes one who has been acquitted by a verdict duly rendered . . . .' If the jury had acquitted, there plainly would be double jeopardy to give the Government another go at this citizen. If, as in the Kepner case, the trial judge had rendered a verdict of acquittal, the guarantee against double jeopardy would prevent a new trial of the old offense. I see no difference when the appellate court orders a judgment of acquittal for lack of evidence." Id., at 374, 75 S.Ct., at 423.
14
Up to this point, Mr. Justice Douglas' explication is, of course, precisely that urged on us by petitioner, and presumably would have been applicable to Bryan as well. But the concurrence in Sapir then undertook to distinguish Bryan :
15
"If petitioner [Sapir] had asked for a new trial, different considerations would come into play, for then the defendant opens the whole record for such disposition as might be just. See Bryan v. United States, 338 U.S. 552, 70 S.Ct. 317, 94 L.Ed. 335." 348 U.S., at 374, 75 S.Ct., at 423 (Emphasis added.) Shortly after Sapir, in Yates v. United States, 354 U.S. 298, 77 S.Ct. 1064, 1 L.Ed.2d 1356 (1957), the Court adopted much the same reasoning as that employed by the Sapir concurrence. In Yates, this Court—without citing Sapir—ordered acquittals for some defendants in the case, but new trials for others, when one of the main contentions of the petitioners concerned the insufficiency of the evidence. As an explanation for the differing remedies, the Court stated:
16
"We think we may do this by drawing on our power under 28 U.S.C. § 2106, because under that statute we would no doubt be justified in refusing to order acquittal even where the evidence might be deemed palpably insufficient, particularly since petitioners have asked in the alternative for a new trial as well as for acquittal. See Bryan v. United States, 338 U.S. 552, 70 S.Ct. 317, 94 L.Ed. 335." Id., 354 U.S., at 328, 77 S.Ct., at 1082.
17
The Yates decision thus paralleled Sapir § concurrence in the sense that both would allow a new trial to correct evidentiary insufficiency if the defendant had requested such relief—even as an alternative to a motion for acquittal. But the language in Yates was also susceptible of a broader reading, namely, that appellate courts have full authority to order a new trial as a remedy for evidentiary insufficiency, even when the defendant has moved only for a judgment of acquittal.
18
Three years later in Forman v. United States, 361 U.S. 416, 80 S.Ct. 481, 4 L.Ed.2d 412 (1960), the Court again treated these questions. There a conviction was reversed by the Court of Appeals due to an improper instruction to the jury, i. e., trial error, as opposed to evidentiary insufficiency. Although the petitioner in Forman had moved for a new trial and judgment of acquittal, he argued that a new trial would not be appropriate relief since he had requested a judgment of acquittal with respect to the specific trial error on which this Court agreed with the Court of Appeals. Without distinguishing between a reversal due to trial error and reversal resulting solely from evidentiary insufficiency, this Court held that a new trial did not involve double jeopardy:
19
"It is elementary in our law that a person can be tried a second time for an offense when his prior conviction for that same offense has been set aside by his appeal. United States v. Ball, 163 U.S. 662, 672, 16 S.Ct. 1192, 1195, 41 L.Ed. 300 (1896). . . . "Even though petitioner be right in his claim that he did not request a new trial with respect to the portion of the charge dealing with the statute of limitations, still his plea of double jeopardy must fail. Under 28 U.S.C. § 2106, the Court of Appeals has full power to go beyond the particular relief sought. See Ball, and other cases, supra." Id., at 425, 80 S.Ct., at 486.
20
Until this stage in the Forman opinion the Court seemed to adopt the more expansive implication of Yates, i. e., that an appellate court's choice of remedies for an unfair conviction whether reversal be compelled by failure of proof or trial error would not turn on the relief requested by the defendant. The Forman decision, however, was not entirely free from ambiguity. In the course of meeting the petitioner's argument that Sapir demanded a judgment of acquittal, the Court noted two differences between those cases. In the first place, "the order to dismiss in Sapir was based on the insufficiency of the evidence, which could be cured only by the introduction of new evidence"; in Forman, however, " '[t]he jury was simply not properly instructed.' " 361 U.S., at 426, 80 S.Ct., at 487. In addition, "Sapir made no motion for a new trial in the District Court, while here petitioner [Forman] filed such a motion. That was a decisive factor in Sapir's case." Ibid. (Emphasis added.)
21
The Court's holdings in this area, beginning with Bryan, can hardly be characterized as models of consistency and clarity. Bryan seemingly stood for the proposition that an appellate court could order whatever relief was "appropriate" or "equitable," regardless of what considerations prompted reversal. A somewhat different course was taken by the concurrence in Sapir, where it was suggested that a reversal for evidentiary insufficiency would require a judgment of acquittal unless the defendant had requested a new trial. Yates, on the contrary, implied that new trials could be ordered to cure prior inadequacies of proof even when the defendant had not so moved. While not completely resolving these ambiguities, Forman suggested that a reviewing court could go beyond the relief requested by a defendant and order a new trial under some circumstances. In discussing Sapir, however, the Forman Court intimated that a different result might follow if the conviction was reversed for evidentiary insufficiency and the defendant had not requested a new trial.
22
After the Bryan-Forman line of decisions at least one proposition emerged: A defendant who requests a new trial as one avenue of relief may be required to stand trial again, even when his conviction was reversed due to failure of proof at the first trial. Given that petitioner here appealed from a denial of a motion for a new trial—although he had moved for acquittal during trial—our prior cases would seem to indicate that the Court of Appeals had power to remand on the terms it ordered. To reach a different result will require a departure from those holdings.
III
23
It is unquestionably true that the Court of Appeals' decision "represente[d] 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). By deciding that the Government had failed to come forward with sufficient proof of petitioner's capacity to be responsible for criminal acts, that court was clearly saying that Burks' criminal culpability had not been established. If the District Court had so held in the first instance, as the reviewing court said it should have done, a judgment of acquittal would have been entered5 and, of course, petitioner c uld not be retried for the same offense. See Fong Foo v. United States, 369 U.S. 141, 82 S.Ct. 671, 7 L.Ed.2d 629 (1962); Kepner v. United States, 195 U.S. 100, 24 S.Ct. 797, 49 L.Ed. 114 (1904). Consequently, as Mr. Justice Douglas correctly perceived in Sapir, it should make no difference that the reviewing court, rather than the trial court, determined the evidence to be insufficient, see 348 U.S., at 374, 75 S.Ct. at 422. The appellate decision unmistakably meant that the District Court had erred in failing to grant a judgment of acquittal. To hold otherwise would create a purely arbitrary distinction between those in petitioner's position and others who would enjoy the benefit of a correct decision by the District Court. See Sumpter v. DeGroote, 552 F.2d 1206, 1211-1212 (CA7 1977).
24
The Double Jeopardy Clause forbids a second trial for the purpose of affording the prosecution another opportunity to supply evidence which it failed to muster in the first proceeding.6 This is central to the objective of the prohibition against successive trials. The Clause does not allow "the State . . . to make repeated attempts to convict an individual for an alleged offense," since "[t]he constitutional prohibition against 'double jeopardy' was designed to protect an individual from being subjected to the hazards of trial and possible conviction more than once for an alleged offense." Green v. United States, 355 U.S. 184, 187, 78 S.Ct. 221, 223, 2 L.Ed.2d 199 (1957); see Serfass v. United States, 420 U.S. 377, 387-388, 95 S.Ct. 1055, 1061-1062, 43 L.Ed.2d 265 (1975); United States v. Jorn, 400 U.S. 470, 479, 91 S.Ct. 547, 554, 27 L.Ed.2d 543 (1971).
25
Nonetheless, as the discussion in Part II, supra, indicates, our past holdings do not appear consistent with what we believe the Double Jeopardy Clause commands. A close reexamination of those precedents, however, persuades us that they have not properly construed the Clause, and accordingly should no longer be followed.
26
Reconsideration must begin with Bryan v. United States. The brief and somewhat cursory examination of the double jeopardy issue there was limited to stating that " 'where the accused successfully seeks review of a conviction, there is no double jeopardy upon a new trial,' " 338 U.S., at 560, 70 S.Ct., at 321, citing Louisiana ex rel. Francis v. Resweber, 329 U.S. 459, 462, 67 S.Ct. 374, 375, 91 L.Ed. 422 (1947), and Trono v. United States, 199 U.S. 521, 533-534, 26 S.Ct. 121, 124, 50 L.Ed. 292 (1905). These two cited authorities, which represent the totality of the Court's analysis, add little, if anything, toward resolving the double jeopardy problem presented by Bryan. Resweber involved facts completely unrelated to evidentiary insufficiency. There, in what were admittedly "unusual circumstances," 329 U.S., at 461, 67 S.Ct. at 375, the Court decided that a State would be allowed another chance to carry out the execution of one properly convicted and under sentence of death after an initial attempted electrocution failed due to some mechanical difficulty. In passing, the opinion stated: "But where the accused successfully seeks review of a conviction, there is no double jeopardy upon a new trial. United States v. Ball, 163 U. . 662, 672, 16 S.Ct. 1192, 41 L.Ed. 300." Id., at 462, 67 S.Ct., at 375. Trono made a similar comment, citing Ball for the proposition that "if the judgment of conviction be reversed on [the defendant's] own appeal, he cannot avail himself of the once-in-jeopardy provision as a bar to a new trial of the offense for which he was convicted." 199 U.S., at 533-534, 26 S.Ct., at 124.7
27
The common ancestor of these statements in Resweber and Trono, then, is United States v. Ball, which provides a logical starting point for unraveling the conceptual confusion arising from Bryan and the cases which have followed in its wake. This is especially true since Ball appears to represent the first instance in which this Court considered in any detail the double jeopardy implications of an appellate reversal. North Carolina v. Pearce, 395 U.S. 711, 719-720, 89 S.Ct. 2072, 2077-2078, 23 L.Ed.2d 656 (1969).
28
Ball came before the Court twice, the first occasion being on writ of error from federal convictions for murder. On this initial review, those defendants who had been found guilty obtained a reversal of their convictions due to a fatally defective indictment. On remand after appeal, the trial court dismissed the flawed indictment and proceeded to retry the defendants on a new indictment. They were again convicted and the defendants came once more to this Court, arguing that their second trial was barred because of former jeopardy. The Court rejected this plea in a brief statement:
29
"[A] defendant, who procures a judgment against him upon an indictment to be set aside, may be tried anew upon the same indictment, or upon another indictment, for the same offence of which he had been convicted. Hopt v. Utah, 104 U.S. 631, 26 L.Ed. 873; 110 U.S. 574, 4 S.Ct. 202, 28 L.Ed. 262; 114 U.S. 488, 5 S.Ct. 972, 29 L.Ed. 183; 120 U.S. 430; Regina v. Drury, 3 Cox Crim.Cas. 544; S.C. 3 Car. & Kirw. 193; Commonwealth v. Gould, 12 Gray 171." 163 U.S., at 672, 16 S.Ct., at 1195.
30
The reversal in Ball was therefore based not on insufficiency of evidence but rather on trial error, i. e., failure to dismiss a faulty indictment. Moreover, the cases cited as authority by Ball were ones involving trial errors.8
31
We have no doubt that Ball was correct in allowing a new trial to rectifytrial error :
32
"The principle that [the Double Jeopardy Clause] does not preclude the Government's retrying a defendant whose conviction is set aside because of an error in the proceedings leading to conviction is a well-established part of our constitutional jurisprudence." United States v. Tateo, 377 U.S. 463, 465, 84 S.Ct. 1587, 1589, 12 L.Ed.2d 448 (1964) (emphasis supplied).
33
See United States v. Wilson, 420 U.S. 332, 341 n. 9, 95 S.Ct. 1013, 1020, 43 L.Ed.2d 232 (1975); Forman, supra, 361 U.S., at 425, 80 S.Ct., at 486. As we have seen in Part II, supra, the cases which have arisen since Ball generally do not distinguish between reversals due to trial error and those resulting from evidentiary insufficiency. We believe, however, that the failure to make this distinction has contributed substantially to the present state of conceptual confusion existing in this area of the law. Consequently, it is important to consider carefully the respective roles of these two types of reversals in double jeopardy analysis.
34
Various rationales have been advanced to support the policy of allowing retrial to correct trial error,9 but in our view the most reasonable justification is that advanced by Tateo, supra, 377 U.S., at 466, 84 S.Ct., at 1589:
35
"It would be a high price indeed for society to pay were every accused granted immunity from punishment because of any defect sufficient to constitute reversible error in the proceedings leading to conviction."
36
See Wilson, supra, 420 U.S., at 343-344, n. 11, 95 S.Ct., at 1021-1022; Wade v. Hunter, 336 U.S. 684, 688-689, 69 S.Ct. 834, 836-837, 93 L.Ed. 974 (1949). In short, reversal for trial error, as distinguished from evidentiary insufficiency, does not constitute a decision to the effect that the government has failed to prove its case. As such, it implies nothing with respect to the guilt or innocence of the defendant. Rather, it is a determination that a defendant has been convicted through a judicial process which is defective in some fundamental respect, e. g., incorrect receipt or rejection of evidence, incorrect instructions, or prosecutorial misconduct. When this occurs, the accused has a strong interest in obtaining a fair readjudication of his guilt free from error, just as society maintains a val d concern for insuring that the guilty are punished. See Note, Double Jeopardy: A New Trial After Appellate Reversal for Insufficient Evidence, 31 U.Chi.L.Rev. 365, 370 (1964).
37
The same cannot be said when a defendant's conviction has been overturned due to a failure of proof at trial, in which case the prosecution cannot complain of prejudice, for it has been given one fair opportunity to offer whatever proof it could assemble.10 Moreover, such an appellate reversal means that the government's case was so lacking that it should not have even beensubmitted to the jury. Since we necessarily afford absolute finality to a jury's verdict of acquittal—no matter how erroneous its decision—it is difficult to conceive how society has any greater interest in retrying a defendant when, on review, it is decided as a matter of law that the jury could not properly have returned a verdict of guilty.
38
The importance of a reversal on grounds of evidentiary insufficiency for purposes of inquiry under the Double Jeopardy Clause is underscored by the fact that a federal court's role in deciding whether a case should be considered by the jury is quite limited. Even the trial court, which has heard the testimony of witnesses first hand, is not to weigh the evidence or assess the credibility of witnesses when it judges the merits of a motion for acquittal. See United States v. Wolfenbarger, 426 F.2d 992, 994 (CA6 1970); United States v. Nelson, 419 F.2d 1237, 1241 (CA9 1969); McClard v. United States, 386 F.2d 495, 497 (CA8 1968); Curley v. United States, 81 U.S.App.D.C. 389, 392, 160 F.2d 229, 232-233, cert. denied, 331 U.S. 837, 67 S.Ct. 1511, 91 L.Ed. 1850 (1947). The prevailing rule has long been that a district judge is to submit a case to the jury if the evidence and inferences therefrom most favorable to the prosecution would warrant the jury's finding the defendant guilty beyond a reasonable doubt. See C. Wright, Federal Practice and Procedure, § 467, pp. 259-260 (1969); e. g., Powell v. United States, 135 U.S.App.D.C. 254, 257, 418 F.2d 470, 473 (1969); Crawford v. United States, 126 U.S.App.D.C. 156, 158, 375 F.2d 332, 334 (1967). Obviously a federal appellate court applies no higher a standard; rather, it must sustain the verdict if there is substantial evidence, viewed in the light most favorable to the Government, to uphold the jury's decision. See Glasser v. United States, 315 U.S. 60, 80, 62 S.Ct. 457, 469, 86 L.Ed. 680 (1942). While this is not the appropriate occasion to re-examine in detail the standards for appellate reversal on grounds of insufficient evidence, it is apparent that such a decision will be confined to cases where the prosecution's failure is clear.11 Given the requirements for entry of a judgment of acquittal, the purposes of the Clause would be negated were we to afford the government an opportunity for the proverbial "second bite at the apple."
39
In our view it makes no difference that a defendant has sought a new trial as one of his remedies, or even as the sole remedy. It cannot be meaningfully said that a person "waives" his right to a judgment of acquittal by moving for a new trial. See Green v. United States, 355 U.S., at 191-198, 78 S.Ct., at 225-229. Moreover, as Forman, supra, 361 U.S., at 425, 80 S.Ct., at 486, has indicated, an appellate court is authorized by § 2106 to "go beyond the particular relief sought" in order to provide that relief which would be "just under the circumstances." Since we hold today that the Double Jeopardy Clause precludes a second trial once the reviewing court has found the evidence legally insufficient, the only "just" remedy available for that court is the direction of a judgment of acquittal. To the extent that our prior decisions suggest that by moving for a new trial, a defendant waives his right to a judgment of acquittal on the basis of evidentiary insufficiency, those cases are overruled.
40
Accordingly, the judgment of the Court of Appeals is reversed, and the case remanded for proceedings consistent with this opinion.
41
Reversed and remanded.
42
Mr. Justice BLACKMUN took no part in the consideration or decision of this case.
1
Petitioner did not file a post-trial motion for judgment of acquittal, which he was entitled to do under Fed.Rule Crim.Proc. 29(c).
2
Although the Court of Appeals did not cite Davis v. United States, 160 U.S. 469, 16 S.Ct. 353, 40 L.Ed. 499 (1895), that decision would require this allocation of burdens.
3
Title 28 U.S.C. § 2106 provides:
"The Supreme Court or any other court of appellate jurisdiction may affirm, modify, vacate, set aside or reverse any judgment, decree, or order of a court lawfully brought before it for review, and may remand the cause and direct the entry of such appropriate judgment, decree, or order, or require such further proceedings to be had as may be just under the circumstances."
4
There is no claim in this case that the trial court committed error by excluding prosecution evidence which, if received, would have rebutted any claim of evidentiary insufficiency.
5
When a district court determines, at the close of either side's case, that the evidence is insufficient, it "shall order the entry of [a] judgment of acquittal . . . ." Fed.Rule Crim.Proc. 29; see C. Wright, Federal Practice and Procedure, § 462, p. 245 (1969).
6
We recognize that under the terms of the remand in this case the District Court might very well conclude, after "a balancing of the equities," that a second trial should not be held. Nonetheless, where the Double Jeopardy Clause is applicable, its sweep is absolute. There are no "equities" to be balanced, for the Clause has declared a constitutional policy, based on grounds which are not open to judicial examination.
7
Trono arose from a murder prosecution in the Philippines. After a nonjury trial the defendants were acquitted of the crime of murder, but were convicted of the lesser included offense of assault. They appealed to the Supreme Court of the Philippine Islands, which reversed the judgment and entered convictions for murder, increasing their sentences as well. This Court affirmed, although "it seems apparent that a majority of the Court was unable to agree on any common ground for the conclusion that an appeal of a lesser offense destroyed a defense of former jeopardy on a greater offense for which the defendant had already been acquitted." Green v. United States, 355 U.S. 184, 187, 78 S.Ct. 221, 228, 2 L.Ed.2d 199 (1957). Green expressly confined the Trono decision to "its peculiar factual setting," namely, an interpretation of a "statutory provision against double jeopardy pertaining to the Philippine Islands." 355 U.S., at 197, 78 S.Ct., at 228; see Price v. Georgia, 398 U.S. 323, 327-328, n. 3, 90 S.Ct. 1757, 1760, 26 L.Ed.2d 300 (1970).
8
Hopt v. Utah, 120 U.S. 430, 7 S.Ct. 614, 30 L.Ed. 708 (1887), was the last of four appeals by a defendant from a murder conviction in the Territory of Utah. On the first three appeals the convictions were reversed and new trials ordered because of trial errors, e. g., improper instruction, 104 U.S. 631, 26 L.Ed. 873 (1882); absence of the accused during a portion of the trial, improper hearsay testimony received, and prejudicial instruction, 110 U.S. 574, 4 S.Ct. 202, 28 L.Ed. 262 (1884); and inadequate record due to failure to record jury instructions, 114 U.S. 488, 5 S.Ct. 972, 29 L.Ed. 183 (1885). No claim of evidentiary i sufficiency was sustained by the Court, and indeed no discussion of double jeopardy appears. Commonwealth v. Gould, 78 Mass. 171 (1858), was a state case in which a defendant was ordered tried on a superseding indictment, after the original indictment had been challenged. Finally, in the English case, Queen v. Drury, 3 Cox Crim.Cas. 544, 175 Eng.Rep. 516 (Q.B. 1849), the defendants had been given an improper sentence after being found guilty at a trial to which no other error was assigned. The court allowed a retrial, saying:
"A man who has been tried, convicted and attainted on an insufficient indictment, or on a record erroneous in any other part, is in so much jeopardy literally that punishment may be lawfully inflicted on him, unless the attainder be reversed in a Court of Error; and yet when that is done, he may certainly be indicted again for the same offence, and the rule would be held to apply, that he had never been in jeopardy under the former indictment." Id., at 546, 175 Eng.Rep., at 520.
9
It has been suggested, for example, that an appeal from a conviction amounts to a "waiver" of double jeopardy protections, see Trono v. United States, supra, 199 U.S. 521, 533, 26 S.Ct. 121, 124 (1905); but see Green, supra, 355 U.S., at 191-198, 78 S.Ct., at 225-229, or that the appeal somehow continues the jeopardy which attached at the first trial, see Price v. Georgia, supra, 398 U.S., at 326, 90 S.Ct. 1757, 1759, 26 L.Ed.2d 300; but see Breed v. Jones, 421 U.S. 519, 534, 95 S.Ct. 1779, 1788, 44 L.Ed.2d 346 (1975).
10
In holding the evidence insufficient to sustain guilt, an appellate court determines that the prosecution has failed to prove guilt beyond a reasonable doubt. See American Tobacco Co. v. United States, 328 U.S. 781, 787 n. 4, 66 S.Ct. 1125, 1128, 90 L.Ed. 1575 (1946).
11
When the basic issue before the appellate court concerns the sufficiency of the Government's proof of a defendant's sanity (as it did here), a reviewing court should be most wary of disturbing the jury verdict:
"There may be cases where the facts adduced as to the existence and impact of an accused's mental condition may be so overwhelming as to require a judge to conclude that no reasonable juror could entertain a reasonable doubt. But in view of the complicated nature of the decision to be made—intertwining moral, legal, and medical judgments—it will require an unusually strong showing to induce us to reverse a conviction because the judge left the critical issue of criminal responsibility with the jury." King v. United States, 125 U.S.App.D.C., 318, 32 , 372 F.2d 383, 389 (1967) (footnote omitted).
| 01
|
437 U.S. 54
98 S.Ct. 2170
57 L.Ed.2d 43
Thomas SANABRIA, Petitioner,v.UNITED STATES.
No. 76-1040.
Argued Nov. 8, 1977.
Decided June 14, 1978.
Syllabus
Title 18 U.S.C. § 1955 (1976 ed.) makes it a federal offense for five or more persons to conduct an "illegal gambling business" in violation of the law of the place where the business is located. Petitioner, along with several others, was indicted for violating § 1955 in a single count charging that the defendants' gambling business involved numbers betting and betting on horse races in violation of a specified Massachusetts statute. The Government's evidence at trial in the District Court showed that the defendants had been engaged in both horse betting and numbers betting. At the close of the Government's case defense counsel argued that the Government had failed to prove a violation of the Massachusetts statute because that statute did not prohibit numbers betting but only horse betting. After the defendants had rested, the trial judge granted their motion to exclude all evidence of numbers betting and then granted a motion to acquit petitioner because of lack of evidence of his connection with the horse-betting business. The case against the remaining defendants went to the jury, and they were all convicted. The Government appealed under 18 U.S.C. § 3731 (1976 ed.) from the order excluding the numbers-betting evidence and from the judgment acquitting petitioner, and sought a new trial on the portion of the indictment relating to numbers betting. The Court of Appeals held that it had jurisdiction of the appeal, taking the view that, although § 3731, by its terms, authorizes the Government to appeal only from orders "dismissing an indictment . . . as to any one or more counts," the word "counts" refers to any discrete basis for imposing criminal liability, that since the horse-betting and numbers allegations were discrete bases for liability duplicitously joined in a single count, the District Court's action constituted a "dismissal" of the numbers "charge" and an acquittal for insufficient evidence on the horse-betting charge, and that therefore § 3731 authorized an appeal from the "dismissal" of the numbers charge. The court went on to hold that the Double Jeopardy Clause of the Fifth Amendment did not bar a retrial, because petitioner had voluntarily terminated the proceedings on the numbers portion of the count by moving, in effect, to dismiss it. The court vacated the judgment of acquittal, and remanded for a new trial on the numbers charge. Held: 1. A retrial on the numbers theory of liability is barred by the Double Jeopardy Clause. Pp. 63-74.
(a) The Court of Appeals erroneously characterized the District Court's action as a "dismissal" of the numbers theory. There was only one count charged, the District Court did not rder language in the indictment stricken, and the indictment was not amended, but the judgment of acquittal was entered on the entire count and found petitioner not guilty of violating § 1955 without specifying that it did so only with respect to one theory of liability. Pp. 65-68.
(b) To the extent that the District Court found the indictment's description of the offense too narrow to warrant admission of certain evidence, the court's ruling was an erroneous evidentiary ruling, which led to an acquittal for insufficient evidence, and that judgment of acquittal, however erroneous, bars further prosecution on any aspect of the count and hence bars appellate review of the trial court's error. Pp. 68-69.
(c) Even if it could be said that the District Court "dismissed" the numbers allegation, a retrial on that theory would subject petitioner to a second trial on the "same offense" of which he was acquitted. Under § 1955 participation in a single gambling business is but a single offense, no matter how many state statutes the enterprise violated, and with regard to this single gambling business petitioner was acquitted. The Government having charged only a single gambling business, the discrete violations of state law that that business may have committed are not severable in order to avoid the Double Jeopardy Clause's bar of retrials for the "same offense." Pp. 69-74.
2. Once the defendant has been acquitted, no matter how "egregiously erroneous" the legal rulings leading to the judgment of acquittal might be, there is no exception to the constitutional rule forbidding successive trials for the same offense. Fong Foo v. United States, 369 U.S. 141, 82 S.Ct. 671, 7 L.Ed.2d 629. Thus here, while the numbers evidence was erroneously excluded, the judgment of acquittal produced thereby is final and unreviewable. Lee v. United States, 432 U.S. 23, 97 S.Ct. 2141, 53 L.Ed.2d 80; Jeffers v. United States, 432 U.S. 137, 97 S.Ct. 2207, 53 L.Ed.2d 168, distinguished. Pp. 75-78.
548 F.2d 1, reversed.
Francis J. DiMento, Boston, Mass., for petitioner.
Frank H. Easterbrook, Washington, D. C., for respondent, pro hac vice, by special leave of Court.
Mr. Justice MARSHALL delivered the opinion of the Court.*
1
The issue presented is whether the United States may appeal in a criminal case from a midtrial ruling resulting in the exclusion of certain evidence and from a subsequently entered judgment of acquittal. Resolution of this issue depends on the application of the Double Jeopardy Clause of the Fifth Amendment to the somewhat unusual facts of this case.
2
* Petitioner was indicted, along with several others, for violating 18 U.S.C. § 1955 (1976 ed.), which makes it a federal offense to conduct, finance, manage, supervise, direct, or own all or part of an "illegal gambling business." § 1955(a). Such a business is defined as one that is conducted by five or more persons in violation of the law of the place where the business is located and that operates for at least 30 days or earns at least $2,000 in any one day. § 1955(b)(1).1 The single-count indictment here charged in relevant part that the defendants' gambling business involved "accepting, recording and registering bets and wagers on a parimutual [sic ] number pool and on the result of a trial and contest of skill, speed, and endurance of beast," and that the business "was a violation of the laws of the Commonwealth of Massachusetts, to wit, M.G.L.A. Chapter 271, Section 17."2
3
The Government's evidence at trial showed the defendants to have been engaged primarily in horse betting and numbers betting. At the close of the Government's case, petitioner's counsel, who represented 8 of the 11 defendants, moved for a judgment of acquittal as to all of his clients. Joined by counsel for other defendants, he argued, inter alia, that the Government had failed to prove that there was a violation of the state statutory section as alleged in the indictment, since Mass.Gen.Laws Ann., ch. 271, § 17 (West 1970), as construed by the state courts, did not prohibit numbers betting but applied only to betting on "games of competition" such as horse races. The Government responded that "violation of the State law is a jurisdictional element of [the federal] statute" and that "not every [defendant] must be found to be violating this State law." The District Court accepted the Government's theory and denied the defendants' motion, stating that "a defendant to be convicted must [only] be found to have joined in [the illegal] enterprise in some way."
4
Petitioner's counsel then sought clarification of whether "the numbers pool allegation [was] still in the case." The court indicated that it was, because counsel had not presented any state-court authority for the proposition that § 17 did not include numbers betting. The court also expressed the view, however, that if petitioner's counsel were correct, "we would have to exclude . . . all of the evidence that has to do with bets o[n] numbers." The Government demurred, arguing that exclusion of the numbers evidence would "not necessarily follow" from acceptance of petitioner's theory.3 Taking his lead from the court, petitioner's counsel next moved "to strike or limit the evidence." The motion was denied.
5
After the defendants had rested, the trial judge announced that he was reversing his earlier ruling on the motion to exclude evidence, because he had discovered a Massachusetts case holding that numbers betting was not prohibited by § 17, but only by § 7 of ch. 271.4 The court then struck all evidence of numbers betting, apparently because it believed such action to be required by the indictment's failure to set forth the proper section.5
6
At this point counsel moved for a judgment of acquittal as to petitioner alone, arguing that there was no evidence of his connection with horse-betting activities. The Government did not disagree that the evidence was insufficient to show petitioner's involvement with a horse-betting operation, but repeated its earlier argument relating to the "jurisdictional" nature of the state-law violation. The court rejected this contention, stating that the offense had "to be established in the terms that you [the Government] charged it, which was as a violation of § 17" and that petitioner had to be "connected with this operation, and by that I mean a horse operation." The court concluded: "I don't think you've done it." It then granted petitioner's motion for a judgment of acquittal6 and entered an order embodying this ruling later that day.7
7
The next day the Government moved the court to reconsider both "its ruling . . . striking . . . evidence concerning the operation of an illegal . . . numbers pool" and "its decision granting defendant Thomas Sanabria's motion for judgement [sic ] of acquittal."8 Prompted by the Government's arguments in support of reconsideration, the court asked defense counsel why he had not raised the objection to the indictment's citation of § 17 earlier and what prejudice resulted to petitioner from the failure to cite the proper section. Counsel responded that the objection had not "ripened" until, at the end of the Government's case, the court was asked to take judicial notice of § 17, and that he need not and did not allege actual prejudice. The court denied the motions to reconsider, but indicated that, had it granted the motion to restore the numbers evidence, it also would have vacated the judgment of acquittal.9 The case against the remaining 10 defendants went to the jury on a theory that the gambling business was engaged in horse betting; all were convicted.
8
The Government filed a timely appeal "from [the] decision and order . . . excluding evidence and entering a judgment of acquittal . . . and . . . denying the Motion for Reconsideration." Conceding that there could be no review of the District Court's ruling that there was insufficient evidence of petitioner's involvement with horse betting, the Government sought a new trial on the portion of the indictment relating to numbers betting.
9
The Court of Appeals for the First Circuit held first that it had jurisdiction of the appeal. Although the jurisdictional statute, 18 U.S.C. § 3731 (1976 ed.), by its terms authorizes the Government to appeal only from orders "dismissing an indictment . . . as to any one or more counts,"10 the word "count" was "interpret[ed] . . . to refer to any discrete basis for the imposition of criminal liability." 548 F.2d 1, 5 (1976). Viewing the horse-betting and numbers allegations as "discrete bas[es] of criminal liability" duplicitously joined in a single count, the court characterized the District Court's action as a "dismissal" of the numbers "charge" and an acquittal for insufficient evidence on the horse-betting charge. Id., at 4-5, and n. 4. It concluded that § 3731 authorized an appeal from the "dismissal" of the numbers charge, "if the double jeopardy clause does not bar a future prosecution on this charge." 548 F.2d, at 5.
10
Consistent with its above analysis, the court found that petitioner had voluntarily terminated the proceedings on the numbers portion of the count by moving, in effect, to dismiss it. Since the "dismissal" imported no ruling on petitioner's "criminal liability as such," and since petitioner's motion was not attributable to "prosecutorial or judicial overreaching," the court applied the rule permitting retrials after a prosecution is terminated by a defendant's request for a mistrial. Id., at 7-8, citing United States v. Dinitz, 424 U.S. 600, 96 S.Ct. 1075, 47 L.Ed.2d 267 (1976). There being no double jeopardy bar to a new trial, the court went on to resolve the merits of the appeal in the Government's favor. It held, based on an intervening First Circuit decision,11 that the District Cou t had erred in "dismissing" the numbers theory. Accordingly, the judgment of acquittal was "vacated" and the case "remanded so that the government may try defendant on that portion of the indictment that charges a violation of § 1955 based upon numbering [sic ] activities." 548 F.2d, at 8.
11
We granted certiorari, 433 U.S. 907, 97 S.Ct. 2970, 53 L.Ed.2d 1090 (1977),12 limiting our review to the related issues of appealability and double jeopardy.13 We now reverse.
II
12
In United States v. Wilson, 420 U.S. 332, 95 S.Ct. 1013, 43 L.Ed.2d 232 (1975), we found that the primary purpose of the Double Jeopardy Clause was to prevent successive trials, and not Government appeals per se. Thus we held that, where an indictment is dismissed after a guilty verdict is rendered, the Double Jeopardy Clause did not bar an appeal since the verdict could simply be reinstated without a new trial if the Government were successful.14 That a new trial will follow upon a Government appeal does not necessarily forbid it, however, because in limited circumstances a second trial on the same offense is constitutionally permissible.15 Appealability in this case therefore turns on whether the new trial ordered by the court below would violate the command of the Fifth Amendment that no "person [shall] be subject for the same offence to be twice put in jeopardy of life or limb."16
13
In deciding whether a second trial is permissible here, we must immediately confront the fact that petitioner was acquitted on the indictment. That " '[a] verdict of acquittal . . . [may] not be reviewed . . . without putting [the defendant] twice in jeopardy, and thereby violating the Constitution,' " has recently been described as "the most fundamental rule in the history of double jeopardy jurisprudence." United States v. Martin Linen Supply Co., 430 U.S. 564, 571, 97 S.Ct. 1349, 1354, 51 L.Ed.2d 642 (1977), quoting United States v. Ball, 163 U.S. 662, 671, 16 S.Ct. 1192, 1195, 41 L.Ed. 300 (1896). The fundamental nature of this rule is manifested by its explicit extension to situations where an acquittal is "based upon an egregiously erroneous foundation." Fong Foo v. United States, 369 U.S. 141, 143, 82 S.Ct. 671, 672, 7 L.Ed.2d 629 (1962); see Green v. United States, 355 U.S. 184, 188, 78 S.Ct. 221, 223, 2 L.Ed.2d 199 (1957). In Fong Foo the Court of Appeals held that the District Court had erred in various rulings and lacked power to direct a verdict of acquittal before the Government rested its case.17 We accepted the Court of Appeals' holding that the District Court had erred, but nevertheless found that the Double Jeopardy Clause was "violated when the Court of Appeals set aside the judgment of acquittal and directed that petitioners be tried again for the same offense." 369 U.S., at 143, 82 S.Ct., at 672, 7 L.Ed.2d 629. Thus when a defendant has been acquitted at trial he may not be retried on the same offense, even if the legal rulings underlying the acquittal were erroneous.
14
The Government does not take issue with these basic principles. Indeed, it concedes that the acquittal for insufficient evidence on what it refers to as the horse-betting theory of liability is unreviewable and bars a second trial on that charge.18 The disputed question, however, is whether a retrial on the numbers theory of liability would be on the "same offense" as that on which petitioner has been acquitted.
15
The Government contends, in accordance with the reasoning of the Court of Appeals, that the numbers theory was dismissed from the count before the judgment of acquittal was entered and therefore that petitioner was not acquitted of the numbers theory. Petitioner responds that the District Court did not "dismiss" anything but rather struck evidence and acquitted petitioner on the entire count; further, assuming arguendo that there was a "dismissal" of the numbers theory, he urges that a retrial on this theory would nevertheless be barred as a second trial on the same statutory offense. We first consider whether the Court of Appeals correctly characterized the District Court's action as a "dismissal" of the numbers theory.
16
In the Government's view, the numbers theory was "dismissed" from the case as effectively as if the Government had actually charged the crime in two counts and the District Court had dismissed the numbers count. The first difficulty this argument encounters is that the Government did not in fact charge this offense in two counts. Legal consequences ordinarily flow from what has actually happened, not from what a party might have done from the vantage of hindsight. See Central Tablet Mfg. Co. v. United States, 417 U.S. 673, 690, 94 S.Ct. 2516, 2526, 41 L.Ed.2d 398 (1974).19 The precise manner in which an indictment is drawn cannot be ignored, because an important function of the indictment is to ensure that, "in case any other proceedings are taken against [the defendant] for a similar offence, . . . the record [will] sho[w] with accuracy to what extent he may plead a former acquittal or conviction." Cochran v. United States, 157 U.S. 286, 290, 15 S.Ct. 628, 630, 39 L.Ed.2d 704 (1895), quoted with approval in Russell v. United States, 369 U.S. 749, 764, 82 S.Ct. 1038, 1047, 8 L.Ed.2d 240 (1962); Hagner v. United States, 285 U.S. 427, 431, 52 S.Ct. 417, 419, 76 L.Ed. 861 (1932).20
17
With regard to the one count that was in fact charged, as to which petitioner has been at least formally acquitted, we are not persuaded that it is correct to characterize the trial court's action as a "dismissal" of a discrete portion of the count. While form is not to be exalted over substance in determining the double jeopardy consequences of a ruling terminating a prosecution, Serfass v. United States, supra, 420 U.S., at 377, 392-393, 95 S.Ct. at 1057 (1975); United States v. Jorn, 400 U.S. 470, 478 n. 7, 91 S.Ct. 547, 553, 27 L.Ed.2d 543 (1971); United States v. Goldman, 277 U.S. 229, 236, 48 S.Ct. 486, 488, 72 L.Ed. 862 (1928), neither is it appropriate entirely to ignore the form of order entered by the trial court, see United States v. Barber, 219 U.S. 72, 78, 31 S.Ct. 209, 211, 55 L.Ed. 99 (1911). Here the District Court issued only two orders, one excluding certain evidence and the other entering a judgment of acquittal on the single count charged. No language in the indictment was ordered to be stricken, compare United States v. Alberti, 568 F.2d 617, 621 (CA2 1977), nor was the indictment amended. The judgment of acquittal was entered on the entire count and found petitioner not guilty of the crime of violating 18 U.S.C. § 1955 (1976 ed.), without specifying that it did so only with respect to one theory of liability:
18
"Th defendant having been set to the bar to be tried for the offense of unlawfully engaging in an illegal gambling business, in violation of Title 18, United States Code, Sections 1955 and 2, and the Court having allowed defendant's motion for judgment of acquittal at the close of government's evidence,
19
"It is hereby ORDERED that the defendant Thomas Sanabria be, and he hereby is, acquitted of the offense charged, and it is further ORDERED that the defendant Thomas Sanabria is hereby discharged to go without day."
20
The Government itself characterized the District Court's ruling from which it sought to appeal as "a decision and order . . . excluding evidence and entering a judgment of acquittal." Notice of Appeal.21 Similar language appears in its motion for reconsideration filed in the District Court. Indeed, the view that the trial court "dismissed" as to one "discrete basis of liability" appears to have originated in the opinion below. Thus, not only defense counsel and the trial court but the Government as well seemed in agreement that the trial court had made an evidentiary ruling based on its interpretation of the indictment.
21
We must assume that the trial court's interpretation of the indictment was erroneous. See n. 13, supra. But not every erroneous interpretation of an indictment for purposes of deciding what evidence is admissible can be regarded as a "dismissal." Here the District Court did not find that the count failed to charge a necessary element of the offense, cf. Lee v. United States, 432 U.S. 23, 97 S.Ct. 2141, 53 L.Ed.2d 80 (1977); rather, it found the indictment's description of the offense too narrow to warrant the admission of certain evidence. To this extent, we believe the ruling below is properly to be characterized as an erroneous evidentiary ruling,22 which led to an acquittal for insufficient evidence. That judgment of acquittal, however erroneous, bars further prosecution on any aspect of the count and hence bars appellate review of the trial court's error. United States v. Martin Linen Supply Co., supra, 430 U.S., at 571, 97 S.Ct. at 1354; Fong Foo v. United States, 369 U.S. 141, 82 S.Ct. 671, 7 L.Ed.2d 629 (1962); Green v. United States, supra, 355 U.S., at 188, 78 S.Ct. at 223; United States v. Ball, supra, 163 U.S., at 671, 16 S.Ct. at 1195.
B
22
Even if the Government were correct that the District Court "dismissed" the numbers allegation, in our view a retrial on that theory would subject petitioner to a second trial on the "same offense" of which he has been acquitted.23
23
It is Congress, and not the prosecution, which establishes and defines offenses. Few, if any, limitations are imposed by the Double Jeopardy Clause on the legislative power to define offenses. Brown v. Ohio, 432 U.S. 161, 165, 97 S.Ct. 2221, 2225, 53 L.Ed.2d 187 (1977). But once Congress has defined a statutory offense by its prescription of the "allowable unit of prosecution," United States v. Universal C. I. T. Credit Corp., 344 U.S. 218, 221, 73 S.Ct. 227, 229, 97 L.Ed. 260 (1952); Bell v. United States, 349 U.S. 81, 75 S.Ct. 620, 99 L.Ed. 905 (1955); Braverman v. United States, 317 U.S. 49, 63 S.Ct. 99, 87 L.Ed. 23 (1942); In re Nielsen, 131 U.S. 176, 93 S.Ct. 672, 33 L.Ed. 118 (1889), that prescription determines the scope of protection afforded by a prior conviction or acquittal. Whether a particular course of conduct involves one or more distinct "offenses" under the statute depends on this congressional choice.24
24
The allowable unit of prosecution under § 1955 is defined as participation in a single "illegal gambling business." Congress did not assimilate state gambling laws per se into the federal penal code, nor did it define discrete acts of gambling as independent federal offenses. See H.R.Rep.No.91-1549, p. 53 (1970). See also Iannelli v. United States, 420 U.S. 770, 784-790, 95 S.Ct. 1284, 1293-1296, 43 L.Ed.2d 616 (1975). The Government need not prove that the defendant himself performed any act of gambling prohibited by state law.25 It is participation in the gambling business that is a federal offense, and it is only the gambling business that must violate state law.26 And, as the Government recognizes, under § 1955 participation in a single gambling business is but a single offense, "no matter how many state statutes the enterprise violated." Brief for United States 31.
25
The Government's undisputed theory of this case is that there was a single gambling business, which engaged in both horse betting and numbers betting. With regard to this single business, participation in which is concededly only a single offense, we have no doubt that petitioner was truly acquitted.
26
We have recently defined an acquittal as " 'a resolution, correct or not, of some or all of the factual elements of the offense charged.' " Lee v. United States, supra, 432 U.S., at 30 n. 8, 97 S.Ct. at 2146, quoting United States v. Martin Linen Supply Co., supra, 430 U.S., at 571, 97 S.Ct. at 1355. Petitioner was found not guilty for a failure of proof on a key "factual element of the offense charged": that he was "connected with" the illegal gambling business. See supra, at 59.27 Had the Government charged only that the business was engaged in horse betting and had petitioner been acquitted, his acquittal would bar any further prosecution for participating in the same gambling business during the same time period on a numbers theory.28 That the trial court disregarded the Government's allegation of numbers betting does not render its acquittal on the horsebetting theory any less an acquittal on the "offense" charged. "The Double Jeopardy Clause is not such a fragile guarantee that . . . its limitations [can be avoided] by the simple expedient of dividing a single crime into a series of temporal or spatial units," Brown v. Ohio, supra, 432 U.S., at 169, 97 S.Ct. at 2227, or, as we hold today, into "discrete bases of liability" not defined as such by the legislature. See id., at 169 n. 8, 97 S.Ct. at 2227.29
27
While recognizing that only a single violation of the statute is alleged under either theory,30 the Government nevertheless contends that separate counts would have been proper, and that an acquittal of petitioner on a horse-betting count would not bar another prosecution on a numbers count. Brief for United States 33. Although there may be circumstances in which this is true, petitioner here was acquitted for insufficient proof of an element of the crime which both such counts would share—that he was "connected with" the single gambling business. See supra, at 59. This finding of fact stands as an absolute bar to any further prosecution for participation in that business.31
28
The Government having charged only a single gambling business, the discrete violations of state law which that business may have committed are not severable in order to avoid the Double Jeopardy Clause's bar on retrials for the "same offense."32 Indeed, the Government's argument that these are discrete bases of liability warranting reprosecution following a final judgment of acquittal on one such "discrete basis" is quite similar to an unsuccessful argument that i presented in Braverman v. United States, supra, 317 U.S. 49, 63 S.Ct. 99, 87 L.Ed. 23 (1942). Braverman had been convicted of and received consecutive sentences on four separate counts of conspiracy, each count alleging a conspiracy to violate a separate substantive provision of the federal narcotics laws. The Government conceded that only a single conspiracy existed, as it concedes here that only a single gambling business existed; nonetheless, it urged that separate punishments were appropriate because the single conspiracy had several discrete objects. We firmly rejected that argument:
29
"[T]he precise nature and extent of the conspiracy must be determined by reference to the agreement which embraces and defines its objects. Whether the object of a single agreement is to commit one or many crimes, it is in either case that agreement which constitutes the conspiracy which the statute punishes. The one agreement cannot be taken to be several agreements and hence several conspiracies because it envisages the violation of several statutes rather than one." Id., at 53, 63 S.Ct. at 102.
30
The same reasoning must also apply where the essence of the crime created by Congress is participation in a "business," rather than participation in an "agreement."33
31
The Double Jeopardy Clause is no less offended because the Government here seeks to try petitioner twice for this single offense, instead of seeking to punish him twice as it did in Braverman.34 "If two offenses are the same . . . for purposes of barring consecutive sentences at a single trial, they necessarily will be the same for purposes of barring successive prosecutions." Brown v. Ohio, supra, 432 U.S., at 166, 97 S.Ct. at 2225. Accordingly, even if the numbers allegation were "dismissed," we conclude that a subsequent trial of petitioner for conducting the same illegal gambling business as that at issue in the first trial would subject him to a second trial on the "same offense" of which he was acquitted.
III
32
The only question remaining is whether any of the exceptions to the constitutional rule forbidding successive trials on the same offense, see n. 15, supra, apply here. The short answer to this question is that there is no exception permitting retrial once the defendant has been acquitted, no matter how "egregiously erroneous," Fong Foo v. United States, supra, 369 U.S., at 143, 82 S.Ct. at 674, the legal rulings leading to that judgment might be. The Government nevertheless argues, relying principally on Lee v. United States, 432 U.S. 23, 97 S.Ct. 2141, 53 L.Ed.2d 80 (1977), and Jeffers v. United States, 432 U.S. 137, 97 S.Ct. 2207, 53 L.Ed.2d 168 (1977), that petitioner waived his double jeopardy rights by moving to "dismiss" the numbers allegation and by not objecting to the form of the allegation prior to trial.
33
In Lee we held a retrial permissible because the District Court's midtrial decision granting the defendant's motion to dismiss the indictment for failure to state an offense was "functionally indistinguishable from a declaration of mistrial" at the defendant's request. 432 U.S., at 31, 97 S.Ct. at 2146. The mistrial analogy relied on in Lee is manifestly inapposite here. Although jeopardy had attached in Lee, no verdict had been rendered; indeed, petitioner conceded that "the District Court's termination of the first trial was not an acquittal," id., at 30 n. 8, 97 S.Ct. at 2146. Here, by contrast, the trial proceeded to verdict, and petitioner was acquitted. While in Lee the trial court clearly did contemplate a reprosecution when it granted defendant's motion, id., at 30-31, 97 S.Ct. at 2143, neither petitioner's motion here nor the trial court's rulings contemplated a second trial—nor could they have, since only a single offense was involved and petitioner went to judgment on that offense. Where a trial terminates with a judgment of acquittal, as here, "double jeopardy principles governing the permissibility of retrial after a declaration of mistrial," Lee v. United States, supra, 432 U.S., at 31, 97 S.Ct. at 2146, have no bearing.
34
Nor does Jeffers support the Government's position. The defendant there was first tried and convicted of conspiring to distribute narcotics in violation of 21 U.S.C. § 846. Eight Members of the Court agreed that his subsequent trial for conducting a continuing criminal enterprise in violation of 21 U.S.C. § 848 during the same time period was on the "same offense," since the § 846 violation was a lesser included offense to the § 848 violation. Prior to the first trial, however, Jeffers had specifically opposed the Government's effort to try both indictments together, in part on the ground that they involved distinct offenses. 432 U.S., at 144 n. 8, 97 S.Ct. at 2210. Reasoning that Jeffers necessarily contemplated a second trial, four Members of the Court found that he had "elect[ed] to have the two offenses tried separately," id., at 152, 97 S.Ct. at 2217, and, by not raising the potential double jeopardy problem, had waived any objection on that ground to successive trials, id., at 152-154, 97 S.Ct. at 2214.35 The instant case presents quite a different situation. Petitioner's counsel never argued that horse betting and numbers were distinct offenses,36 a fortiori did not argue for or contemplate separate trials on each theory, and a multo fortiori did not "elect" to undergo successive trials.
35
Finally, we agree with the Court of Appeals that this case does not present the hypothetical situation on which we reserved judgment in Serfass v. United States, of " 'a defendant who is afforded an opportunity to obtain a determination of a legal defense prior to trial and nevertheless knowingly allows himself to be placed in jeopardy before raising the defense.' " 420 U.S., at 394, 95 S.Ct. at 1065, quoting Solicitor General; see 548 F.2d, at 7. Petitioner did not have a "legal defense" to the single offense charged: participating in an illegal gambling business in violation of § 1955. Unlike questions of whether an indictment states an offense, a statute is unconstitutional, or conduct set forth in an indictment violates the statute, what proof may be presented in support of a valid indictment and the sufficiency of that proof are not "legal defenses" required to be or even capable of being resolved before trial. In all of the former instances, a ruling in the defendant's favor completely precludes conviction, at least on that indictment. Here, even if the numbers language had been struck before trial, there was no "legal" reason why petitioner could not have been convicted on this indictment, as were his 10 codefendants. The acquittal resulted from the insufficiency of the Government's proof at trial to establish petitioner's connection with the gambling business, as the trial judge erroneously understood it to have been charged.
36
The Government's real quarrel is with the judgment of acquittal. While the numbers evidence was erroneously excluded, the judgment of acquittal produced thereby is final and unreviewable. Neither 18 U.S.C. § 3731 (1976 ed.) nor the Double Jeopardy Clause permits the Government to obtain relief from all of the adverse rulings—most of which result from defense motions—that lead to the termination of a criminal trial in the defendant's favor. See United States v. Wilson, supra, 420 U.S., at 351-352, 95 S.Ct. at 1025-1026; S.Rep.No.91-1296, p. 2 (1970). To hold that a defendant waives his double jeopardy protection whenever a trial court error in his favor on a midtrial motion leads to an acquittal would undercut the adversary assumption on which our system of criminal justice rests, see Jeffers v. United States, supra, 432 U.S., at 159-160, 97 S.Ct. at 2209 (STEVENS, J., dissenting in part and concurring in judgment in part), and would vitiate one of the fundamental rights established by the Fifth Amendment.
37
The trial court's rulings here led to an erroneous resolution in the defendant's favor on the merits of the charge. As Fong Foo v. United States, makes clear, the Double Jeopardy Clause absolutely bars a second trial in such circumstances. The Court of Appeals thus lacked jurisdiction of the Government's appeal.
38
Accordingly, the judgment of the Court of Appeals is
39
Reversed.
40
Mr. Justice STEVENS, concurring.
41
Although I join the text of the Court's opinion, I cannot agree with the dictum in footnote 23. It is true "that there is no statutory barrier to an appeal from an order dismissing only a portion of a count," ante, at 69 n. 23, but it is equally true that there is no statutory authority for such an appeal. It necessarily f llows—at least if we are faithful to the concept that federal courts have only such jurisdiction as is conferred by Congress—that the Court of Appeals had no jurisdiction of this appeal.
42
The Criminal Appeals Act, 18 U.S.C. § 3731 (1976 ed.), authorizes the United States to appeal an order of a district court "dismissing an indictment or information as to any one or more counts, except that no appeal shall lie where the double jeopardy clause of the United States Constitution prohibits further prosecution." (Emphasis added.) By its plain terms, this statute does not encompass the present case.
43
Putting to one side the question whether an acquittal may properly be regarded as an order "dismissing an indictment" within the meaning of the statute, see United States v. Martin Linen Supply Co., 430 U.S. 564, 576, 97 S.Ct. 1349, 1358, 51 L.Ed.2d 642 (STEVENS, J., concurring), the statutory grant of appellate jurisdiction is still unequivocally limited to review of a dismissal "as to any one or more counts." The statute does not refer to "subunit[s] of an indictment" or "portion[s] of a count," ante, at 69 n. 23, but only to "counts," a well-known and unambiguous term of art.
44
Prior to the amendment of § 3731 in 1971, this Court's rule of statutory interpretation was that "the Criminal Appeals Act [should be] strictly construed against the Government's right of appeal, Carroll v. United States, 354 U.S. 394, 399-400, 77 S.Ct. 1332, 1335-1336, 1 L.Ed.2d 1442 (1957)." Will v. United States, 389 U.S. 90, 96-97, 88 S.Ct. 269, 274, 19 L.Ed.2d 305. The Court's present pattern of interpretation of § 3731, as exemplified by Martin Linen, supra, does more than simply abandon this approach; it reverses direction entirely and reads the statute in whatever manner would favor a Government appeal. It is, of course, true that the legislative history of the Act indicates that Congress intended § 3731 "to be liberally construed," S.Rep.No.91-1296, p. 18 (1970), but this expression of legislative intent does not give us a license to ignore the words of the statute. In fact, the Court does not even suggest that the language "one or more counts" is ambiguous; instead it argues that the words cannot be given their proper meaning because the Act was intended "to eliminate '[t]echnical distinctions in pleadings . . . .' " Ante, at 69 n. 23. This argument has a hollow ring in light of the Court's prior assertion that "[t]he precise manner in which an indictment is drawn cannot be ignored, because an important function of the indictment is to ensure that, 'in case any other proceedings are taken against [the defendant] for a similar offence, . . . the record [will] show with accuracy to what extent he may plead a former acquittal or conviction.' " Ante, at 65-66. Furthermore, in my judgment, a rule that the Government may appeal from the "dismissal" of a portion of a count, provided that the portion establishes a "discrete basis of liability," fosters rather than eliminates technical distinctions and encourages exactly the sort of near sighted parsing of indictments that the amendment was intended to discourage.
45
I cannot, therefore, join that portion of the Court's decision which states that the Criminal Appeals Act permits an appeal from only a portion of a count. It clearly does not, and for that reason, as well as for the reasons stated in the text of the Court's opinion, the Court of Appeals' decision must be reversed.
46
Mr. Justice BLACKMUN, with whom Mr. Justice REHNQUIST joins, dissenting.
47
This case, of course, is an odd and an unusual one, factually and procedurally. Because it is, the case will afford little guidance as precedent in the Court's continuing struggle to create order and understanding out of the confusion of the lengthening list of its decisions on the Double Jeopardy Clause. I would have thought, however, that the principles enunciated late last Term in Lee v. United States, 432 U. . 23, 97 S.Ct. 2141, 53 L.Ed.2d 80 (1977)—which I deem a more difficult case for the Government than this one—had application to the facts here. I do not share the Court's distinction of Lee, ante, at 75, and I do not agree that Lee is "manifestly inapposite." Here, as in Lee, there is misdescription by the trial court of the nature of its order, and, as in Lee, the defendant-petitioner's maneuvers should result in a surrender of his right to receive a verdict by the jury that had been drawn. Further, it appears to me that petitioner has succeeded in having the indictment read one way in the trial court, and another way here, as the situation required.
48
I would affirm the judgment of the Court of Appeals.
*
Mr. Justice WHITE joins Parts I, II-A, and III of this opinion.
1
Title 18 U.S.C. § 1955 (1976 ed.) provides in relevant part:
"Prohibition of illegal gambling businesses.
"(a) Whoever conducts, finances, manages, supervises, directs, or owns all or part of an illegal gambling business shall be fined not more than $20,000 or imprisoned not more than five years, or both.
"(b) As used in this section—
"(1) 'illegal gambling business' means a gambling business which—
"(i) is a violation of the law of a State or political subdivision in which it is conducted;
"(ii) involves five or more persons who conduct, finance, manage, supervise, direct, or own all or part of such business; and
"(iii) has been or remains in substantially continuous operation for a period in excess of thirty days or has a gross revenue of $2,000 in any single day.
"(2) 'gambling' includes but is not limited to pool-selling, bookmaking, maintaining slot machines, roulette wheels or dice tables, and conducting lotteries, policy, bolita or numbers games, or selling chances therein.
"(3) 'State' means any State of the United States, the District of Columbia, the Commonwealth of Puerto Rico, and any territory or possession of the United States."
2
The indictment alleged in full:
"From on or about June 1, 1971 and continuing thereafter up to and including November 13, 1971 at Revere, Massachusetts within the District of Massachusetts, [the defendants] did unlawfully, knowingly, and wilfully conduct, finance, manage, supervise, direct and own all and a part of an illegal gambling business, to wit, accepting, recording and registering bets and wagers on a parimutual [sic ] number pool and on the result of a trial and contest of skill, speed, and endurance of beast, said illegal gambling business; (i) was a violation of the laws of the Commonwealth of Massachusetts, to wit, M.G.L.A. Chapter 271, Section 17, in which place said gambling business was being conducted; (ii) involved five and more persons who conducted, financed, managed, supervised, directed and owned all and a part of said business; (iii) had been in substantially continuous operation for a period in excess of thirty days and had a gross revenue of two thousand dollars ($2,000) in any single day; all in violation of Title 18, United States Code, Sections 1955 and 2."
3
When the District Judge asked why exclusion of the numbers evidence "would not necessarily follow," the Government responded:
"Because the Defendants have been charged with operating a gambling business, which is in violation of State law. Now, there's no question that the horse race aspe t of it is in violation of State law. There are other aspects to the bets as well, but the violation of State law is merely a jurisdictional element which must be satisfied prior to the initiation of Federal prosecution."
4
Commonwealth v. Boyle, 346 Mass. 1, 189 N.E.2d 844 (1963).
5
The Government did not at this time argue, as it had previously, see n. 3, supra, that the numbers evidence was relevant to show "other aspects" of the bets even if it could not be used to prove that the business violated state law. Instead, it urged that the numbers evidence was admissible as proof of "similar acts."
6
Petitioner has consistently maintained that he properly moved to exclude the numbers evidence as irrelevant to the indictment's characterization of the gambling business; that the District Court properly granted the evidentiary motion, see Tr. of Oral Arg. 12; and that the District Court properly granted petitioner's motion for a judgment of acquittal after excluding the numbers evidence on the grounds of insufficient evidence.
7
The text of the judgment is quoted infra at 67.
8
In support of these motions, the Government argued that the failure to cite Mass.Gen.Laws Ann., ch. 271, § 7 (West 1970), in the indictment was a technical defect causing no prejudice to the defendants and subject to correction during trial under Fed.Rule Crim.Proc. 7. See n. 11, infra. If the numbers evidence were restored to the case, the Government argued, vacating the judgment of acquittal would be proper, since it had resulted solely from the erroneous exclus on of evidence and since no new trial would be necessary in view of the fact that the jury had not been discharged.
9
The trial court explained its reasoning as follows:
"If the other motion had been granted, I think, probably, the Motion to Reconsider the Acquittal of Sanabria would be allowed under these new decisions: Wilson, which is in 420 U.S. 332 [332] [95 S.Ct. 1013, 43 L.Ed.2d 232]; Jenkins, 420 U.S. 358 [95 S.Ct. 1006, 43 L.Ed.2d 250]; and Serfass, at 420 U.S. 377 [95 S.Ct. 1055, 43 L.Ed.2d 265], all decided the last term. All of those seem to say if a judgment of acquittal or judgment of dismissal is entered on legal grounds as opposed to containing or importing a finding of fact and the reversal of that decision would not require a new trial, then it may be reversed.
* * * * *
"In Fong Foo [v. United States, 369 U.S. 141, 82 S.Ct. 671, 7 L.Ed.2d 629 (1962)] the jury had been discharged, and it would have been necessary to draw a new jury and start a new trial, and in Jenkins they specifically distinguished Fong Foo from the Wilson-Jenkins-Serfass group . . . ."
10
Another provision of § 3731 authorizes the Government to appeal from orders "suppressing or excluding evidence . . . not made after the defendant has been put in jeopardy and before the verdict or finding on [the] indictment." The Government does not contend that the ruling excluding numbers evidence was appealable under this provision. By its plain terms, moreover, this second paragraph of § 3731 does not authorize this appeal, since the ruling excluding evidence occurred after the defendant had been put in jeopardy and before verdict. Cf. United States v. Morrison, 429 U.S. 1, 97 S.Ct. 24, 50 L.Ed.2d 1 (1976).
11
United States v. Morrison, 531 F.2d 1089, 1094, cert. denied, 429 U.S. 837, 97 S.Ct. 104, 50 L.Ed.2d 103 (1976). Morrison held a failure to cite Mass.Gen.Laws Ann., ch. 271, § 7 (West 1970), in a similarly worded indictment to be harmless error. Based on Morrison, the court below concluded that the indictment was sufficient to give "notice that numbers activity was a basis upon which the government sought to establish criminal liability under § 1955." 548 F.2d, at 4.
12
The petition for certiorari was filed one day out of time. The time requirement of this Court's Rule 22(2) is not jurisdictional, Schacht v. United States, 398 U.S. 58, 63-65, 90 S.Ct. 1555, 1559-1560, 26 L.Ed.2d 44 (1970), and petitioner has filed a motion, supported by affidavits, seeking waiver of this requirement. We now grant petitioner's motion.
13
The petition for certiorari presented four questions for review, the first three relating to whether the Government's appeal was authorized by statute and not barred by the Double Jeopardy Clause. The fourth question sought review of the Court of Appeals' ruling that the indictment gave sufficient notice of the Government's intent to rely on evidence of numbers betting. Our order limited the grant of certiorari to the first three questions. 433 U.S. 907, 97 S.Ct. 2970, 53 L.Ed.2d 1090 (1977). Accordingly, we must assume that the District Court erred in ruling that the indictment did not encompass the numbers allegation because of its failure to cite Mass.Gen.Laws Ann., ch. 271 § 7 (West 1970).
14
United States v. Jenkins, 420 U.S. 358, 95 S.Ct. 1006, 43 L.Ed.2d 250 (1975), by contrast, held that appeal of an order dismissing an indictment after jeopardy had attached, but before verdict, was barred because a successful appeal would require "further proceedings . . . devoted to the resolution of factual issues going to the elements of the offense charged." Id., at 370, 95 S.Ct. at 1013. See Lee v. United States, 432 U.S. 23, 29-30, 97 S.Ct. 2141, 2145-2146, 53 L.Ed.2d 80 (1977).
15
A new trial is permitted, e. g., where the defendant successfully appeals his conviction, United States v. Ball, 163 U.S. 662, 672, 16 S.Ct. 1192, 1195, 41 L.Ed. 300 (1896); where a mistrial is declared for a "manifest necessity," Wade v. Hunter, 336 U.S. 684, 69 S.Ct. 834, 93 L.Ed. 974 (1949); where the defendant requests a mistrial in the absence of prosecutorial or judicial overreaching, United States v. Dinitz, 424 U.S. 600, 96 S.Ct. 1075, 47 L.Ed.2d 267 (1976); or where an indictment is dismissed at the defendant's request in circumstances functionally equivalent to a mistrial, Lee v. United States, supra. See also Jeffers v. United States, 432 U.S. 137, 97 S.Ct. 2207, 53 L.Ed.2d 168 (1977).
16
We have on several occasions observed that the jurisdictional statute authorizing Government appeals, 18 U.S.C. § 3731 (1976 ed.), was " 'intended to remove all statutory barriers' " to appeals from orders terminating prosecutions. United States v. Martin Linen Supply Co., 430 U.S. 564, 568, 97 S.Ct. 1349, 1353, 51 L.Ed.2d 642 (1977), quoting United States v. Wilson, 420 U.S. 332, 337, 95 S.Ct. 1013, 1018, 43 L.Ed.2d 232 (1975). We therefore turn immediately to the constitutional issues.
17
In re United States, 286 F.2d 556 (CA1 1961).
18
It is without constitutional significance that the court entered a judgment of acquittal rather than directing the jury to bring in a verdict of acquittal or giving it erroneous instructions that resulted in an acquittal. United States v. Martin Linen Supply Co., supra, 430 U.S., at 567 n. 5, 573, 97 S.Ct. at 1352; United States v. Sisson, 399 U.S. 267, 290, 90 S.Ct. 2117, 2129, 26 L.Ed.2d 608 (1970).
19
The difficulty in allowing a defendant's rights to turn on what the Government might have done is illustrated by considering that, had the Government alleged each "theory of liability" in a separate count, the indictment would have been subject to objection on grounds of multiplicity, the charging of a single offense in separate counts. See n. 20, infra. The Government might then have been forced to elect on which count it would proceed against petitioner, United States v. Universal C. I. T. Credit Corp., 344 U.S. 218, 73 S.Ct. 227, 97 L.Ed. 260 (1952), and probably would have chosen to proceed on the numbers theory as to which its evidence was apparently stronger. In that event, however, petitioner could not have been acquitted of the horse-betting count, and the instant problem would not have arisen.
20
The Court of Appeals erred in its apparent view that the Government should have drawn the indictment in two counts because the single count was duplicitous. 548 F.2d, at 5 n. 4. Only a single gambling business was alleged, and hence only a single offense. See infra, at 70-71. A single offense should normally be charged in one count rather than several, even if different means of committing the offense are alleged. See Fed.Rule Crim.Proc. 7(c)(1); Advisory Committee's Notes on Fed.Rule Crim.Proc. 7, 18 U.S.C.App., p. 1413 (1976 ed.); n. 19, supra.
21
The Court of Appeals might have been warranted in dismissing the appeal for failure of the notice to specify the only arguably appealable ruling rendered below. The court believed that "[t]he critical ruling by the district court was that the indictment failed to charge a violation of § 1955 on a numbers theory." 548 F.2d, at 5 n. 5. But this "critical ruling," which the court below concluded was a "dismissal," is not set forth in the notice of appeal. Since the Government is not authorized to appeal from all adverse rulings in criminal cases, it is especially important that it specify precisely what it claims to have been the appealable ruling.
The Court of Appeals, however, must have concluded that the notice was sufficient to bring up for review the legal ruling preceding the order excluding evidence. A mistake in designating the judgment appealed from is not always fatal, so long as the intent to appeal from a specific ruling can fairly be inferred by probing the notice and the other party was not misled or prejudiced. Daily Mirror, Inc. v. New York News, Inc., 533 F.2d 53 (CA2 1976) (per curiam); Jones v. Nelson, 484 F.2d 1165 (CA10 1973). The Government's "Designation of Issue [sic] on Appeal," apparently filed after the notice, did set forth that "[t]he trial judge erred in ruling that M.G.L.A. Chapter 271, Section 17 does not encompass an illegal numbers operation and as a result erred in granting the Motion to Strike and the Motion for Judgment of Acquittal."
22
The District Court's interpretation of the indictment as not encompassing a charge that the gambling business engaged in numbers betting in violation of state law did not by itself require that numbers evidence be excluded. Even if the indictment had charged only that the defendants had conducted an illegal gambling business engaged in horse-betting activities in violation of state law, evidence relating to numbers betting would have been admissible, absent actual surprise or prejudice, to show the defendants' connection with "all or part of [that] illegal gambling business." 18 U.S.C. § 1955(a) (1976 ed.). As the Government repeatedly argued to the District Court, the violation of state law is a jurisdictional element which need only be proved with respect to the business.
The District Court's erroneous assumption that the numbers evidence had to be excluded may have resulted in part from the Government's failure to repeat in full its earlier argument, see supra, at 58, when the judge ruled that § 17 did not encompass numbers betting, see supra, at 58-59. See n. 5, supra. Had the numbers evidence not been excluded, the judgment of acquittal would not have been entered, even if the court adhered to its ruling on the scope of the indictment, and the case would have gone to the jury, presumably with instructions that the jurors had to find the gambling business to have engaged in horse betting, and the defendants to have conducted "all or part" of that gambling business.
23
We agree with the Court of Appeals, see supra, at 61, that there is no statutory barrier to an appeal from an order dismissing only a portion of a count. One express purpose of 18 U.S.C. § 3731 (1976 ed.) is to permit appeals from orders dismissing indictments "as to any one or more counts." A "count" is the usual organizational subunit of an indictment, and it would therefore appear that Congress intended to authorize appeals from any order dismissing an indictment in whole or in part. Congress could hardly have meant appealability to depend on the initial decision of a prosecutor to charge in one count what could also have been charged in two, a decision frequently fortuitous for purposes of the interests served by § 3731. To so rule would import an empty formalism into a statute expressly designed to eliminate "[t]echnical distinctions in pleadings as limitations on appeals by the United States." H.R.Conf.Rep.No.91-1768, p. 21 (1970); accord, S.Rep.No.91-1296, p. 5 (1970). We note that the only Court of Appeals other than the court below that has considered this question reached a similar result. United States v. Alberti, 568 F.2d 617 (CA2 1977).
24
See Note, Twice in Jeopardy, 75 Yale L.J. 262, 268, 302-310 (1965). Because only a single violation of a single statute is at issue here, we do not analyze this case under the so-called "same evidence" test, which is frequently used to determine whether a single transaction may give rise to separate prosecutions, convictions, and/or punishments under separate statutes. See, e. g., Gavieres v. United States, 220 U.S. 338, 342, 31 S.Ct. 421, 422, 55 L.Ed. 489 (1911); Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932); Gore v. United States, 357 U.S. 386, 78 S.Ct. 1280, 2 L.Ed.2d 1405 (1958); Iannelli v. United States, 420 U.S. 770, 95 S.Ct. 1284, 43 L.Ed.2d 616 (1975). See also Brown v. Ohio, 432 U.S. 161, 166-167 n. 6, 97 S.Ct. 2221, 2225, 53 L.Ed.2d 187 (1977); United States v. Jones, 533 F.2d 1387 (CA6 1976), cert. denied, 431 U.S. 964, 97 S.Ct. 2919, 53 L.Ed.2d 1059 (1977). Nor is the case controlled by decisions permitting prosecution under statutes defining as the criminal offense a discrete act, after a prior conviction or acquittal of a distinguishable discrete act that is a separate violation of the statute. See, e. g., Ebeling v. Morgan, 237 U.S. 625, 35 S.Ct. 710, 59 L.Ed. 1151 (1915); Burton v. United States, 202 U.S. 344, 26 S.Ct. 688, 50 L.Ed. 1057 (1906). Cf. Ladner v. United States, 358 U.S. 169, 79 S.Ct. 209, 3 L.Ed.2d 199 (1958); Bell v. United States, 349 U.S. 81, 75 S.Ct. 620, 99 L.Ed. 905 (1955).
25
United States v. Hawes, 529 F.2d 472, 478 (CA5 1976).
26
Numerous cases have recognized that 18 U.S.C. § 1955 (1976 ed.) proscribes any degree of participation in an illegal gambling business, except participation as a mere bettor. See, e. g., United States v. DiMuro, 540 F.2d 503, 507-508 (CA1 1976), cert. denied, 429 U.S. 1038, 97 S.Ct. 733, 50 L.Ed.2d 749 (1977); United States v. Leon, 534 F.2d 667, 676 (CA6 1976); United States v. Brick, 502 F.2d 219, 225 n. 17 (CA8 1974); United States v. Smaldone, 485 F.2d 1333, 1351 (CA10 1973), cert. denied, 416 U.S. 936, 94 S.Ct. 1934, 1960, 40 L.Ed.2d 286, 301 (1974); United States v. Hunter, 478 F.2d 1019, 1021-1022 (CA7), cert. denied, 414 U.S. 857, 94 S.Ct. 162, 38 L.Ed.2d 107 (1973); United States v. Ceraso, 467 F.2d 653, 656 (CA3 1972); United States v. Becker, 461 F.2d 230, 232-233 (CA2 1972), vacated on other grounds, 417 U.S. 903, 94 S.Ct. 2597, 41 L.Ed.2d 208 (1974). Similarly, the Government need not prove that each defendant participated in an illegal
gambling business for more than 30 days (or grossed more than $2,000 in a single day), but only that the business itself existed for more than 30 days (or met the earnings criteria). United States v. Graham, 534 F.2d 1357, 1359 (CA9 1976) (per curiam); United States v. Marrifield, 515 F.2d 877, 880-881 (CA5 1975); United States v. Schaefer, 510 F.2d 1307, 1312 (CA8), cert. denied, sub nom. Del Pietro v. United States, 421 U.S. 975, 95 S.Ct. 1975, 44 L.Ed.2d 466 (1975); United States v. Smaldone, supra, 485 F.2d, at 1351; see United States v. DiMario, 473 F.2d 1046, 1048 (CA6), cert. denied, 412 U.S. 907, 93 S.Ct. 2298, 36 L.Ed.2d 972 (1973).
27
The court's finding that petitioner was not "connected with" the gambling business necessarily meant that he was found not to conduct, finance, manage, supervise, direct, or own it. See 18 U.S.C. § 1955(a) (1976 ed.).
28
See 1 C. Wright, Federal Practice and Procedure § 125, p. 241 (1969). See also United States v. Sabella, 272 F.2d 206, 211 (CA2 1959) (Friendly, J.); Hanf v. United States, 235 F.2d 710, 715 (CA8), cert. denied, 352 U.S. 880, 77 S.Ct. 102, 1 L.Ed.2d 81 (1956).
29
See also United States v. Jackson, 560 F.2d 112, 121 n. 9 (CA2 1977) (Government may not, under Double Jeopardy Clause, "fragment what is in fact a single crime into its components").
30
The Government concedes that it was required to bring all "theories of liability" in a single trial, and that only a single punishment could be imposed upon conviction on more than one such theory. Brief for United States 31, 33.
31
It is true that no factual determination was made that petitioner had not engaged in numbers betting. Thus, there would be no collateral estoppel bar to a prosecution of petitioner for a different offense in which his liability would depend on proof of that fact. Cf. Ashe v. Swenson, 397 U.S. 436, 90 S.Ct. 1189, 25 L.Ed.2d 469 (1970).
32
A single gambling business theoretically may violate as many laws as a State has prohibiting gambling, and § 1955 specifies six means by which a defendant may illegally participate in such a business, i. e., by conducting, financing, managing, supervising, directing, or owning it. If we were to accept the Government's theory, each of these could be varied, one at a time, to charge a separate count on which a defendant could be reprosecuted following acquittals on any of the others.
33
If two different gambling businesses were alleged and proved, separate convictions and punishments would be proper. See American Tobacco Co. v. United States, 328 U.S. 781, 787-788, 66 S.Ct. 1125, 1128, 90 L.Ed. 1575 (1946) (holding Braverman inapplicable where two distinct conspiracies alleged). It is not always easy to ascertain whether one or more gambling businesses have been proved under § 1955. See, e. g., United States v. DiMuro, supra, 540 F.2d, at 508-509; United States v. Bobo, 477 F.2d 974, 988 (CA4 1973). No such difficulties are presented here because both sides agree that only a single gambling business existed.
34
United States v. Tanner, 471 F.2d 128, 141 n. 21 (CA7), cert. denied, 409 U.S. 949, 93 S.Ct. 269, 34 L.Ed.2d 220 (1972); see United States v. Mayes, 512 F.2d 637, 652 (CA6), cert. denied, 422 U.S. 1008, 95 S.Ct. 2629, 45 L.Ed.2d 670 (1975); United States v. Young, 503 F.2d 1072, 1075 (CA3 1974); United States v. Cohen, 197 F.2d 26 (CA3 1952). See also Short v. United States, 91 F.2d 614 (CA4 1937); Powe v. United States, 11 F.2d 598 (CA5 1926); United States v. Weiss, 293 F. 992 (ND Ill.1923).
35
While holding that Jeffers could be subjected to a second trial, these four Justices were of the view that the total punishment imposed on Jeffers could not be in excess of that authorized for a single violation of 21 U.S.C. § 848. They relied in part on the fact that Jeffers, who had argued in the District Court that the two statutes involved distinct offenses, had "never affirmatively argued that the difference in the two statutes was so great as to authorize separate punishments . . . ." 432 U.S., at 154 n. 23, 97 S.Ct. at 2218. They were joined in voting to vacate the excess punishment by the four Justices who believed that Jeffers could not be constitutionally subjected to another trial. Mr. Justice WHITE believed that Jeffers could be subjected to both a second trial and separate punishments.
36
That no such argument was made as to the numbers and horse betting allegations is highlighted by the fact that petitioner's counsel did argue on behalf of another defendant that evidence relating to that defendant's betting on dog races should be excluded because
"the theory of the Government's case is that this is a horse and numbers business. . . . [The dog betting] stands by itself as a separate business,
and . . . the Government [must] prove one business here. It's like having multiple conspiracy." Record 28-29.
The motion for exclusion was denied because the District Court found that dog betting was part of the single gambling business shown to have been conducted from the office at 63 Bickford Avenue. Id., at 29-30.
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Subsets and Splits